Zimbabwe Consolidated Diamond Company v Richard Mabaya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/45/23 HARARE, 24 JANUARY, 2023
CASE NO.
LC/H/947/22
---------


IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/45/23 HARARE, 24 JANUARY, 2023	CASE NO. LC/H/947/22

ZIMBABWE CONSOLIDATED DIAMOND COMPANY	APPLICANT

Versus

RICHARD MABAYA	RESPONDENT

Before the Honourable Kudya J;

For the Applicant -	Ms N.G Maphosa (Legal Practitioner) For the Respondent -	Mr J. Tuso	(Legal Practitioner)

KUDYA J:

This matter was set down as an application for leave to appeal. Before the merits of the application could be entertained two points in limine were raised by the respondent. It is only these two points which are the subject of this judgement.

The 1st point is that the application is fatally defective on account of the fact it is not made on the correct form.

2nd point is that the founding affidavit does not spell out that the deponent is authorised by the applicant to depose to the affidavit and further that no resolution authorising him to represent the company is attached. The respondent cited a lot of authorities which speak to the need to file the application in compliance with the court

JUDGMENT NO. LC/H/45/23 CASE NO. LC/H/947/22

rules. In reaction to the points the applicant conceded that it did not file the application as required by the court rules and that the founding affidavit was defective for want of a resolution, reference that the deponent was deposing on behalf of the company and that the respondent’s opposing affidavit instead of saying that it is the applicant’s affidavit.

It however maintained that all the defects were of a technical nature capable of being resolved in terms of rule 12 of not being strict with the rules to achieve justice. To that end the applicant prayed that it be allowed to have the deponent amend his affidavit and that it be allowed to file the concerned resolution.

It was apparent from the applicant’s response that it had a casual approach to the breaches of the rules. It is important to remind the applicant of the view expressed in Ndebele v Ncube 1992 (1) ZLR 288(SC) that parties should be warned not to flagrantly breach court rules and plead for the court’s pardon.

It is apparent that the applicant has adopted a laisses fare approach to the breaches which it styles technical. The court is satisfied that there is nothing technical about making an application on a wrong form and not attaching a resolution or a deponent not averring that is duly instructed by his principal. Those issues are the bedrock of the application and by stretch of imagination cannot be styled technical.

The court is satisfied that on account of the breach the application is improperly before the court. It should to that end be struck off the roll with costs.

IT IS ORDERED THAT,

Points in limine being well placed they be and hereby succeed. Application for leave to appeal be and is hereby struck off the roll with costs for being non-compliant with the court rules.

Sawyer and Mkushi – Applicant’s Legal Practitioners

Tavenhave and Machingauta – Respondent’s Legal Practitioner

2