The Labour Court has struck off an application by Jongwe Corner (Pvt) Ltd seeking rescission of a judgement in a labour dispute with employee Chrishina Kanyongo, ruling that the application was fatally defective and a nullity.
Justice G. Musariri ruled that the company’s application did not comply with mandatory procedural requirements set out in the Labour Court Rules, 2017.
Jongwe Corner (Pvt) Ltd, trading as Jongwe Corner Bar, had approached the court in terms of Rule 40 seeking rescission of a previous judgement. The application was opposed by Kanyongo, who raised a preliminary objection arguing that the application failed to comply with the prescribed court format.
Kanyongo argued that Rule 14(1) of the Labour Court Rules requires applications to be filed in Form LC1, which sets out essential procedural details. Her legal team submitted that the company’s application did not conform to the required form and was therefore invalid.
The employer acknowledged that parties are expected to comply with court rules but argued that non-compliance should not automatically invalidate proceedings if there is no material departure and no prejudice to the other party. It further submitted that rescission should be granted where an applicant demonstrates absence of wilful default and prospects of success on the merits.
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However, Justice Musariri found that although the application notified the respondent of the proceedings and attached documents, it failed to include a mandatory section advising the respondent of the right to oppose the application within the prescribed 10 working days.
In reaching the decision, the judge relied on principles established by the Supreme Court of Zimbabwe in the case of Veritas v ZEC 2020 (2) ZLR 225 (S), which held that failure to include essential procedural elements renders an application fatally defective.
Justice Musariri ruled that the omission of procedural rights meant the application could not be cured by the court’s power to condone departures from the rules.
“The omission of respondent’s procedural rights in the application in casu renders the application fatally defective,” the court held.
The judge further noted that Rule 32, which allows the court to condone departures from procedural rules, does not apply to applications that are considered nullities.
As a result, the court struck the matter off the roll and ordered each party to bear its own costs.
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