National Biotechnological Authority of Zimbabwe v Jonathan Mufandaedza and Innocent Chagonda N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/356/24
HELD AT HARARE 17 JULY 2024 AND 2 SEPTEMBER 2024
CASE NO. LC/H/458/24
IN THE MATTER BETWEEN: -
NATIONAL BIOTECHNOLOGICAL AUTHORITY
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IN THE LABOUR COURT OF
ZIMBABWE HELD AT HARARE 17 JULY
2024 AND 2 SEPTEMBER 2024

IN THE MATTER BETWEEN: -

NATIONAL BIOTECHNOLOGICAL AUTHORITY
OF ZIMBABWE
AND
JONATHAN MUFANDAEDZA
INNOCENT CHAGONDA N.O.

APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant
For First Respondent
No Appearance for Second Respondent

Mr. B. Maunze
Advocate S.M. Hashiti

MURASI J.,

This is an application for reinstatement.

Applicant filed an application for leave to appeal to the Supreme Court on 23 June 2023. The Applicant failed/neglected to file heads of argument in that case which was LC/H/488/23. The matter was deemed abandoned by the Registrar on 9 August 2023 in terms Rule 46 (b). Applicant subsequently filed an application for reinstatement on 12 September 2023 in Case Number LC/H/694/23. The matter was heard on 12 March 2024 with the result that the matter was struck off the roll because of defective documents filed with that application.

Applicant has filed the present application. It bears two titles. The first reads:

“Application for Reinstatement and Condonation and Extension of time to file heads of argument.”

The second title is as follows:
“Chamber Application for reinstatement in terms of Rule 46 (b) of the Labour Court Rules and Condonation for non-compliance with Rule 26 (1) and Extension of time within to file heads of argument in terms of Rule 23 as read with Rule 32 of the Labour Court Rules, SI 150/2017”

At the commencement of the hearing, Advocate Hashiti stated that he had preliminary points to make. He submitted that the present application does not relate to the previous hearing and that the Founding Affidavit by Mr. P. Dube ‘forgets’ about that hearing. He further submitted that there is no reference to corrections that were supposed to be made from the previous hearing. He added that there was no explanation as to why the application was not preceded by an application for condonation. Advocate Hashiti further submitted that the Founding Affidavit in support of the application only relates to one issue and does not cover the issue of condonation. He added that where a legal practitioner acts in such a manner, it shows that he/she is unwilling to pursue the other issues. It was also argued that Applicant was barred on account of its failure to file heads of argument and that, before being allowed to comply, there must be an upliftment of the bar operating against the Applicant. Advocate Hashiti pointed out that where no such relief is sought, it would be defective to seek to file to heads of argument without the upliftment of the bar.

Advocate Hashiti further stated that the application was woefully out of time and Rule 46 (b) of the Labour Court Rules provided that an application for reinstatement could only be done within twenty-one days and should, therefore, have been accompanied by an application for condonation. It was also argued that the draft order was defective as it did not seek the peremptory request that the bar be uplifted against the Applicant. A further averment was made that the grounds of appeal were defective as they did not specify that they raised points of law.

In First Respondent’s heads of argument, the following averments were made relating to the preliminary issues raised:

“Paragraph 9- In Casu, the Applicant ought to have proceeded in terms of paragraph 4 of the practice directive for the reason that the first application for reinstatement was struck off the roll for defective founding papers it had nothing to do with the failure to abide by the rules of court. The relevant paragraph 4 is accompanied by a footnote which states that such a matter, that is one that has been struck off the roll, can only be re-enrolled following an application for an appropriate court order.

Paragraph 10- The Applicant in that regard ought to have made a written application to re-enroll the first application for re0instatement. It is the incorrect procedure for the Applicant to proceed by way of paragraph 5 of the practice directive and as such the application is invalid and should be dismissed with costs on a punitive scale.

Paragraph 11- Assuming that the Applicant used the correct procedure by way of paragraph 5 of the practice directive, which is denied, the Applicant ought to have sought condonation and extension of time for the late filing of the fresh application for reinstatement instead, the Applicant has sought condonation and extension of time within which to file its heads of argument. This is irregular.”


In response, Mr. Maunze stated that the present matter is not the appeal proper where the grounds of appeal have to be related to as they are an indicator of what the Applicant to place before the superior court and cannot be taken as an objection in an application for reinstatement. He submitted that what is sought to be condoned is a failure to file heads of argument. He added that the bar is against the legal practitioner being heard without filing heads of argument and that the Applicant seeks to be condoned and file heads of argument and that this should arrest the mischief. He added that in terms of Rule 21 (4) Applicant must give a draft of the order sought and the order sought was specific and that First Respondent’s objections should be dismissed. Mr. Maunze further submitted that the Founding Affidavit gives a chronology of the events and that a reference was made to paragraph 5 of the practice direction 3 of 2013. He argued that the headings to a document should not be taken to be what a litigant would have stated but the contents thereof. He argued that once a matter had been struck off, it means that it had been concluded and the only recourse was to file a fresh application.

In the heads of argument, the following averments were made:

“Paragraph 4- Applicant argues that the first preliminary point must be dismissed as it does not have merits whatsoever. Applicant addressed the defects raised by the court earlier. (Applicant relied on Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and Others).

Paragraph 6- The Applicant had a chamber application under case number LC/H694/23 within timelines stipulated by the rules of court. The chamber application was struck off the roll and the present application is meant to rectify the defects inline with authorities raised above and Practice Direction 3/2013”

ANALYSIS

What is crucial in this application is a determination whether the application is properly before the Court. It is therefore necessary to relate the matter to the application placed before the Court by the Applicant. Paragraph 6 of Applicant’s Founding Affidavit contains the following important averments:

“This is an application for reinstatement of the matter under LC/H/488/23 which was deemed to have been abandoned by the Registrar of Court for failure by the Applicant to file heads of argument in terms of rule 46 (b) of the Court rules and an application for condonation for failure to conform with the labour court rule 26 (1) and extension of time to file heads of argument in terms of rule 23 as read with rule 32 of the Labour Court rules. The background of the facts of this case are:”

The first observation is that the Founding Affidavit refers to Case Number LC/H/488/23. This is the matter that was deemed abandoned by the Registrar for failure to comply with the rules. The rule provides that a matter deemed abandoned in terms of this rule may be reinstated where an application for reinstatement is made within twenty-one days from the date thereof. Secondly, the paragraph referred to does not refer to Case Number LC/H/694/23. Thirdly, the paragraph refers to rule 23. This rule deals with interlocutory applications and other applications. It has no bearing to the present application. There is also a reference to rule 32. This rule provides for ‘Departure from rules’. It is not known in what context such reference is made when Applicant’s application is predicated on Rule 46 of the rules. In **Stevenson v Minister of Local Government & Others 2002 (1) ZLR 498 (S)** it was held as follows:

“And, as has been said repeatedly, an Applicant must stand or fall by his founding affidavit and facts alleged in it.”

The Founding Affidavit avers that the application for reinstatement of a matter deemed abandoned by the Registrar is in terms Rule 46 of the Labour Court Rules. The rule provides that an application for reinstatement should be made within twenty-one days thereof. The notice by the Registrar was made on 9 August 2023. The present application was only made after Case Number Lc/H/694/23 was struck off the roll by this Court. Clearly, it was made after the expiry of twenty-one days. There is no application for condonation for the late filing of the application for reinstatement. In the absence of an application for condonation, this Court cannot grant such condonation. The Court may not grant an indulgence which an applicant has not even bothered to seek. (See **Forestry Commission v Moyo 1997 (1) ZLR 254 (S)**). At face value, there is no compliance with the rule when one has regard to the actions and averments by the Applicant. The following observations were made in **Mapuranga & Anor v Carson and Carson Real Estate (Pvt) Ltd & Others HH 149/23**:

“Rules serve a simple and logical purpose. They make legal proceedings orderly and predictable by giving guidance to litigants on specific issues governing litigation. Adherence to rules of court is therefore a mark of courtesy to the court and fellow litigants. It also represents compliance with the law. Compliance and courtesy are necessary ingredients of convenience. Convenience in turn, means reduction or even elimination of those well-known ills that make litigation painful, expensive, acrimonious and lengthy. For these reasons, courts persistently urge litigants and lawyers to observe the rules of court. Parties who find themselves in breach of the rules, have a responsibility to take urgent corrective action through honest and contrite applications for condonation.”

I have already made the observation that this is an application for reinstatement of Case Number LC/H/488/23 deemed abandoned in August 2023 which application was supposed to be made within twenty-one days. I have also made a second observation that there is no application for condonation for failure to file the application within the requisite twenty-one days. A fatally defective compliance with the rules leads to an invalidity. (See **Hattingh v Piennar 1977 (2) SA 182 (O)**). In **Schierhout v Minister of Justice 1926 AD 99**, it was held as follows:

“It is a fundamental principle of our law that a thing done contrary to the prohibition of the law is void and of no effect. So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done- and that whether the law giver has expressly so decreed or not, the mere prohibition operates to nullify the act.”

In *casu*, the requirement of Rule 46 is that an application should be made within twenty-one days from the date the matter is deemed abandoned. Applicant has not complied with the requirements of the Rule. Applicant has not applied to be condoned for such non-compliance. The application should be deemed improperly before the Court. There is no need to consider the other points raised by *Mr. Hashiti*.

The following order is therefore appropriate:

1. The application for reinstatement is hereby struck off the roll as it is improperly before the Court.
2. Applicant to meet First Respondent’s costs.

Dubé, Manikai & Hwacha- Applicant’s legal practitioners

Venturas & Samukange- First Respondent’s legal practitioners.
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