Tonderai Mutsago (Designated Agent) v National Association of Non-Governmental Organisations & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/172/2021
HARARE, 05 OCTOBER, 2021
CASE NO.
---------


IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/172/2021

HARARE, 05 OCTOBER, 2021		     	     CASE NO. LC/H/APP/157A/19

AND 22 OCTOBER, 2021

In the matter between:

TONDERAI MUTSAGO (DESIGNATED AGENT)			Applicant

Versus

NATIONAL ASSOCIATION OF NON-GOVERNMENTAL		1st Respondent

ORGANISATION

CHAMUNORWA MUKAKANHANGA					2nd Respondent

Before The Honourable Kachambwa J;

For Applicant:				In default

For 1st Respondent:				Ms T. Muchini (Legal Practitioner)

For 2nd Respondent:				Mr W. Kupara (Trade Unionist)

KACHAMBWA J:

Judgment on Point in Limine

This is an application for the reinstatement of a matter after the matter was previously struck off. It was struck off because the founding affidavit was defective. The applicant said that they had corrected the affidavit and were therefore applying for reinstatement of the matter. The first respondent opposed the application on the ground that this was a wrong procedure because the matter that the applicant was seeking to have reinstated was declared a nullity hence the striking off. Being a nullity that meant that there was nothing to reinstate. The correct procedure was to apply for condonation in order to apply for the confirmation that was struck off.

The applicant conceded that the correct procedure is to apply for condonation and then make a fresh application. The second respondent, who is the “real applicant” in the matter insisted that this was the correct procedure as dictated by Practice Directive No.3 of 2013. It was brought to his attention that this Practice Directive was interpreted in the case of Bindura Municipality v Paison Chikeya Mugogo SC 32/2015. He insisted on his view without any differention of the cases and without any cogent argument. This is indeed a typical situation in this court. We are spending the majority of the time listening to arguments on points in limine with most parties unwilling to listen to anyone. This has indeed become an industry on its own. Week in week out parties are fighting over points in limine on procedure. There seems to be a great lack of understanding that there is nothing wrong with conceding that one erred.

The term “struck off” as used in these courts was explained in Practice Directive No. 3 of 2013 as follows-

“Struck off the roll

3.	The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that from in the first place.

4.	In accordance with the decision in Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC) if a court issues an order that a matter is struck off the roll, the effect is that such matter is no longer before the court.

5.	Where a matter has been struck off the roll for failure by a party to abide by the Rules of the court, the party will have thirty (3) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a Judge may on application and for good cause shown, reinstate the matter on such terms as he deems fit”.

The second respondent has argued that this directive gives him the right to simply rectify the error and apply to have the very application that was struck off to be reinstated. All he has to do according to him is to bring in a corrected affidavit. However the interpretation of the Practice directive has already been made. There is no need to make a new interpretation at this level. Ours is to follow the Bindura Municipality case supra which said that at page 5 of the cyclostyled judgment-

“The appeal having been found to be fatally defective, cannot be reinstated after being struck off the roll. The applicant’s remedy to rectify the defect is to apply for condonation and extension of time within which to file a fresh notice of appeal in terms of rule 6 of the Supreme Court (Miscellaneous Appeals and References Rules. He should do so within the period of thirty days provided in the practice directive”.

The present case is on all fours with the Bindura Municipality case. The fate                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      is the same. It is most unfortunate that the second respondent decided not to see the light. This is a case which otherwise calls for punitive costs. Such cases are choking up the courts. Parties are warned that punitive costs are coming. This matter was prolonged unnecessarily by the second respondent, applicant having conceded.

The second respondent is also in reality the actual or real applicant in this matter. It is the party that stands to lose or benefit from the reinstatement. It is therefore appropriate that any costs awarded to the first respondent must be bourne by the second respondent.

The outcome of the matter is that the application is dismissed. It is accordingly ordered that:-

1.	The application be and is hereby dismissed with costs.

2.	The second respondent be and is hereby ordered to bear the costs of the suit.

Matsikidze & Mucheche	-	1st Respondent’s Legal Practitioners