CHITOPO v ZIMBABWE PLATINUM MINES (PVT) LTD (19 of 2026) [2026] ZWLC 19 (26 January 2026)

3 **IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/19/25** **HELD AT HARARE 21 JANUARY 2026 CASE NO. LC/H/1091/25** **AND 26 JANUARY 2026** **IN THE MATTER BETWEEN:** **REEDMAN J. CHITOPO APPLICANT** **AND** **ZIMBABWE PLATINUM MINES (PVT) LTD RESPONDENT** **Before Honourable Mr. Justice L.M. Murasi** **For Applicant Mr.**_**L. Machacha**_ **For Respondent Ms.**_**N. Katsande**_ **MURASI J.,** This is an application for condonation and extension of time within which to appeal filed in terms of r 22 of the Labour Court Rules, 2017. The brief background of the matter is that the applicant was dismissed from the employ of the respondent on 13 August 2025 following a finding of misconduct related to reporting to work intoxicated. The applicant appealed internally, and the appeal was heard on 29 August 2025. The Appeals Committee upheld the applicant’s dismissal. The applicant appealed to the Labour Court on 10 September 2025 under case number LC/H/860/25. The appeal was heard on 28 October 2025 and was struck off the roll on the basis that it was fatally defective as some grounds attacked the decision of the Disciplinary Committee instead of the Appeals Committee’s decision. This rendered the appeal out of time, hence the present application. **Preliminary Issues** _Mr. Machacha_ raised the preliminary issue that the matter should be treated as unopposed as the Respondent had filed a defective Notice of Opposition. He added that the affidavit was not dated as it was customary for the Commissioner of Oaths to insert the date when the deponent appeared before that Commissioner of Oaths. _Mr. Machacha_ stated that as such the Notice of Opposition was a nullity which could not be amended. _Ms. Katsande_ started by imploring the Court to first consider the Respondent’s preliminary points which were centred on the issue whether the application was properly before the Court. She argued that it would not be in the interests of justice to first determine the preliminary point raised by the Applicant without first considering whether the application was properly before the Court. The first point she made was whether Applicant had complied with the rules of court as shown on page 37 of the record. She stated that Applicant had attached the minutes of the proceedings to the heads of argument which was not customary as the minutes should be attached to the pleadings. The second point raised by _Ms. Katsande_ involved the Founding Affidavit. She submitted that the deponent did not appear before the Commissioner of Oaths as shown at page 9 of the record. She stated that the deponent’s affidavit revealed that the date was computer-generated or a result of ‘cut and paste’. She further stated that the deponent’s signature added to the argument that it was not handwritten. The third point made by _Ms. Katsande_ was to the effect that Applicant was estopped from making the application in view of what transpired in the hearing and the Court. She stated that Applicant had pleaded guilty to the charges before the disciplinary committee. She further added that, when Respondent raised the preliminary point on estoppel, Applicant did not address the Court on that issue and conceded to have the matter struck off the roll because Applicant agreed with all the preliminary points raised by the Respondent, including the one on estoppel. The next point dealt with the draft notice of the appeal. It was averred that it was patently defective as it bore an incompetent prayer in that Applicant was not praying for the setting aside of the decision of the Appeals Committee but that of the Disciplinary Committee. To this end Ms. Katsande relied on the precedent of **Sambaza v All Shams Global** SC 3/18. The last point raised by _Ms. Katsande_ was to the effect that grounds of appeal 1,3,5 and 7 were vague and could not be countenance in a proper appeal. As far as the preliminary point raised by _Mr. Machacha_ , on behalf of the Applicant, _Ms. Katsande_ stated that Respondent realised the error in that the Commissioner of Oaths had not inserted the date on the affidavit. She implored the Court to have the matter dealt with in terms of Rule 29 where the Court could, on good cause shown, allow the Respondent to file the proper Notice of Opposition. In response, _Mr. Machacha_ stated that the rules require that record of proceedings be attached to the draft notice and these had thereafter been attached to the heads of argument instead of the pleadings. He argued that this was substantial compliance with the statute. As far as the date and signature on the Founding Affidavit was concerned, he stated that he agreed that the ink on the date was feint and different from that appearing in the Commissioner of Oath’s signature. He stated that the ink in the pen used to write the date had dried up and a new pen was used to append the signature. As far as the deponent’s signature was concerned _, Mr. Machacha_ stated that the deponent had indeed appeared before the Commissioner of Oaths and the appearance of the signature as being computer-generated could be the result of scanning of documents when filing. As far as issue of estoppel was concerned, _Mr. Machacha_ stated the fact that the Applicant had not addressed this was because the Court had stopped the Applicant’s Counsel from addressing the issue in question and as a result, the Applicant’s Counsel had only addressed three issues out of the four raised by the Respondent. In addressing the issue of the defective prayer, _Mr. Machacha_ argued that this was still a draft and could be amended and still be filed. He was of the view that the grounds of appeal pointed out by the Respondent were properly before the Court. In response, _Ms. Katsande_ drew the Court’s attention to the computer-generated date in the Founding Affidavit and showed the Court the similarities in the dates and the ink. **Ruling on Preliminary Points** The Court has taken note of the request by _Ms. Katsande_ that it would be prudent to determine whether the application was properly before the Court before determining the preliminary point raised by the Applicant. A reading of the preliminary points raised by the Respondent shows that some are dispositive of the matter. This position has been encouraged by the Supreme Court in several of its judgments. In **Telecel Zimbabwe (Private) Limited v Potraz & Ors** HH 446-15 at 2, the noted that: “The courts are spending a lot of time determining points in _limine_ which do not have the remotest chance of success at the expense of the substance of a dispute. A preliminary point should only be taken where, firstly, it has merit and secondly, it is likely to dispose of the matter. The time has come to discourage such waste of courts’ time by making endless points in _limine_ by litigants afraid of the merits of the matter.” The same sentiments were expressed in **Afrochine Smelting (Private) Limited v N.R. Barber (Private) Limited** HH 121-20 where it was stated thus: “In my view, time has come that this warning be taken seriously. Otherwise, courts will continue spending valuable time on tangents and detours, instead of dealing with the substantive merits of the dispute. Courts should ensure that matters and disputes between parties be finalised rather than delayed due to technicalities that do not deal with the real issues between the parties.” The Court will therefore proceed to deal with those preliminary points which are dispositive of the matter. The first point raises the issue of failure to attach appropriate documents on applications. Rule 19(1) of the Labour Court Rules, 2017 outlines a number of mandatory documents that ought to be attached together with an appeal. Sub-rule (1) (b) provides: (b) make three copies of any of the documents referred to in subparagraphs (i) to (iv) as are relevant to the appeal, if they are in the possession of the appellant— (i) the record of any charge or allegation of misconduct that was served on the appellant, if any; (ii) the minutes or record of any proceedings or hearing undertaken to inquire into any charge against or allegation of misconduct on the part of the appellant; (iii) a minute or record of any decision, determination, direction or award made at the conclusion of any proceedings or hearing referred to in subparagraph (ii); (iv) the letter of suspension or dismissal from employment, if any; The record shows that the record of proceedings was not attached together with the founding affidavit. The record should therefore be part of the pleadings. There was no compliance with the rules of court. In **FBC Bank Limited v Chiwanza** SC 31/17 it was stated as follows: “It hardly needs mention that rules of court must be followed in order to unsure proper and good administration of justice. In **Sibanda v The State,** the court quoted the case of S v McNab 1986 (2) ZLR 280 (S) at 284E where DUMBUTSHENA CJ noted the following-“ I have dealt at length on this point because _it is my opinion that laxity on the part of the court in dealing with non-observance of the rules will encourage some practitioners to disregard the rules of court to the detriment of the good administration of justice.””_ The above point made by the Superior Court need not be emphasized. _Mr. Machacha_ sought to argue that it was substantial compliance with the rules. What the rules provide is that heads of argument are filed in terms of Rule 26 and not in terms of Rule 19. It is also a truism that no evidence is supposed to be attached to heads of argument. This fact should be known to any practising legal practitioner. It was clearly out of hand for _Mr. Machacha_ to submit that this was substantial compliance with the Rules. This point has merit. The second point which is also dispositive of the matter is the one raised about the prayer in the Draft Notice of Appeal. It is clear that Applicant prays for the setting aside of the decision of the Disciplinary Committee. _Mr. Machacha_ sought to argue that what was intended was the setting aside of the decision of the Appeals Committee, but this is not what is contained in the prayer. The preliminary point has merit. It is the position of the law that a fundamentally defective application is considered a nullity and cannot be fixed through amendment because the flaw is so severe it goes to the root of the case. A nullity is a process that is void from the start, meaning it lacks legal force or effect, and any subsequent action, including an amendment, is also without effect. In **Jensen v Acavalos** 1993 (1) ZLR 216 (S), KORSAH JA said at 220 B-D: “The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and unless the Court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.” A defective prayer cannot be amended as it renders the whole application fatally defective. In the circumstances, I cannot delve into the merits of the application. The application ought, therefore, to be struck off the roll. It will become unnecessary to deal with the other points raised by the parties. Before concluding, I wish to comment on _Mr. Machacha’s_ averments that he was stopped from addressing the Court on the issue of estoppel by the Court. The Court referred to its notes and informed him that he had indicated in the hearing that he intended to consult his client about the issues raised by the Respondent and the Court allowed him to do so. He stated in those proceedings that after the consultation, Applicant intended to withdraw the application. When this episode was drawn to his attention, he seemed to change course and stated that the Court should have told him to address the issue of estoppel. It is unfortunate that _Mr. Machacha_ would want to allege an event that did not take place during the course of the hearing. **DISPOSITION** Accordingly, it is ordered that: 1. The Respondent’s first and fourth preliminary points are hereby upheld. 2. The application for condonation and extension of time within which to file an appeal is hereby struck off the roll. 3. Applicant to meet the respondent’s costs on the ordinary scale. _Zvavanoda Law Chambers,_ Applicant’s Legal Practitioners _Maguchu and Muchada Business Attorneys_ , Respondent’s Legal Practitioners 3