Washington Nyakurwa & 5 Others v NMB Bank

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/11/24
HELD AT HARARE
CASE NO. LC/H/644/23
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE

9TH JANUARY 2024

AND 22 JANUARY 2024

In the matter between

WASHINGTON NYAKURWA

MARTHA CHAPARADZA

MICHAEL KOMBONI

WONDERFUL MASHAVA

HILARY MUNESU KARONGA

COLLENCE CHIRUME

And

NMB BANK

JUDGMENT NO.LC/11/24

CASE NO. LC/H/644/23

1ST APPELLANT

2ND APPELLANT

3RD APPELLANT

4TH APPELLANT

5TH APPELLANT

6TH APPELLANT

RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR ALL APPELLANTS : MS Z. MAJENA (LEGAL PRACTITIONER)

FOR THE RESPONDENT: MR D. PENETI (LEGAL PRACTITIONER)

MAKAMURE J : This is an appeal against an award by a labour officer. Before the appeal could be heard two preliminary points were taken on behalf of the respondent. These are that: (i) the appellants have not complied with Rule 11A of the Rules of this Court; and (ii) the prayer is defective. The prayer reads:

”Wherefore Appellants pray that;

1. The decision of the Labour Officer be and is hereby set aside and substituted

with the following;

a. The Respondent committed an unfair labour practice in unlawfully terminating

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the APPELLANTs’ contracts of employment.

b. The APPELLANTs’ termination be and is hereby set aside.

c. APPELLANTs ought to be reinstated without loss of salary and benefits.

Alternatively, and in the event that reinstatement is no longer tenable, parties

shall negotiate payment of damages in lieu of reinstatement.

2. In the event that parties fail to agree on applicable damages, either party shall

have the right to approach this honourable court for quantification.

3. Each party shall bear its own costs.”

In view of the two preliminary points raised it was submitted on behalf of the respondent that

the appeal should be struck off the roll. In support of the preliminary points raised the court was referred to case authorities which include Mukonyerwa v Ndhlovu LC/H/107/ 23 and Mudyavanhu v Saruchera & Others SC75/17.

In response the argument on behalf of the appellants was that they complied with provisions of Rules 19 and 47 respectively. Without conceding the point, it was argued that non-compliance with r11A was not prejudicial to the parties; that labour matters ought not to be resolved on technicalities; and that an offending party should not be allowed to get away with its transgressions on the basis of technicalities. It was submitted that non-compliance with Rule 11A was trivial and did not warrant striking a matter off the roll. Some of the authorities relied on ,on behalf of the appellants were Triangle Limited v Sigauke SC 52/2015; Zvokusekwa v Bikita RDC SC 44/15.

In reply it was argued that the defect to the prayer was fatal and could not be amended. It was

submitted that a prayer must ask for success of the appeal before asking for any other remedy. It was submitted that one cannot assume success of an appeal without there being a prayer specifically seeking success of the appeal. On the question of non- compliance with the rules, it was submitted that courts must frown upon non-compliance with rules especially where parties were represented by legal practitioners.

Rule 11A of the rules of this Court S.I. 150 of 2017 as amended by S.I.3 of 2023 provides as follows :

‘11A General provisions for e-filing of process

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(1) Litigants shall create an IECMS account before filing an application, appeal or any other civil process

(2) Litigants shall provide the mandatory information required by the electronic filing system.

(3) If a litigant changes his or her contact details, he or she shall inform the Registrar of the new contact details within 48 hours.

(4) Every notice of appeal or application shall provide an alternative email address for the purposes of service or delivery of pleadings.

(5) All litigants shall provide telephone numbers from the following registered service providers, namely: Econet, NetOne or Telecel, or any other service provider specifically identified in Practice Directions issued from time to time.

(6) A user of the e-filing system shall be the custodian of his or her credentials.’(My underlining for emphasis).

In Chikura & Anor v Al Shams BVI Limited SC 17/2017 the Supreme Court held that

failure to comply with peremptory provisions will render an appeal a nullity. In Mercy Mukonyerwa v Dumisani Ndlovu LCH107/23 this Court upheld a preliminary issue for, among other things :’a) non- compliance with Rule 11A (4) of the Labour Court Rules , 2017’. In Dalny Mine v Banda 1999 (1) ZLR 220 (H) it was held that it is not desirable that labour issues be resolved on the basis of technicalities and that such technicalities should not be ignored but be put right. See also Triangle Limited v Sigauke SC 52/2015. In Mudyavanhu v Saruchera &Two Others (above) the Supreme Court held that the failure to ‘ pray for the success of the appeal in this court before the judgment a quo could be set aside and substituted constitutes a serious defect in the notice of appeal.’ See also Sambaza v Al Shams Global BVI SC 03/18.

It is trite that rules of court are there to ensure smooth running of the court .Some of the

authorities referred to above fortify this position. There is no point in having rules of court if such rules are going to be ignored or overlooked as being trivial. In the present case it is correct that the rules of this Court were amended to incorporate the IECMS ( the system). The system is not a once off event .It is now the system in place such that the rules or rule put in place to ensure its proper functioning cannot be ignored on the basis that other rules which existed earlier were complied with. Those other rules which were in force before the promulgation of r11A remain in force and the new rule supplements them in order for the new system to work. It can therefore not be argued that because a party complied with some rules where they are required to comply with a number of them, they can ignore the others. That would be inappropriate and as earlier noted it is pointless to have rules of procedure and

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then ignore them. Further, the fact that a matter may appear strong on the merits does not entitle a party to ignore some rules of court. In the result I find that there is merit in the preliminary issue raised.

With respect to a defective prayer it is a trite position that where a prayer is defective , the

appeal is a nullity. In the present case it has been demonstrated that the appellant did not ask for success of the appeal. This means that the prayer is defective.

In view of the foregoing, there is merit in the preliminary issues raised. They are upheld.

Accordingly, it is ordered that the matter be and is hereby struck off the roll.

MAJENA CHIGUMBA DANHA ATTORNEYS, APPELLANTS’ LEGAL PRACTITIONERS.

MAGUCHU & MUCHADA BUSSINESS ATTORNEYS< RESPONDENT’S LEGAL

PRACTITIONERS.