MACHINGAUTA and ANOTHER v CHAIRMAN LOCAL GOVERNMENT BOARD N.O and OTHERS (420 of 2025) [2025] ZWHHC 420 (8 July 2025)

3 HH 420-25 HC 7573/22 NAISON MACHINGAUTA and LOVEMORE WARURAMA versus CHAIRMAN LOCAL GOVERNMENT BOARD N. O . and MUNICIPALITY OF BINDURA and MINISTRY OF LOCAL GOVERNMENT NATIONAL HOUSING & PUBLIC WORKS. HIGH COURT OF ZIMBABWE TAKUVA J Harare, 24 October 2024 & 8 July 2025 Application for Review First applicant self actor Second applicant self-actor No appearance, for the first respondent Mr L Zinyengere No appearance for the third respondent Takuva J: This is an application for review wherein the applicants seek the following amended order; “The application for review be and is hereby granted. The first Respondent’s resolution numbers LGB006/ 2022 and LGB007/22 respectively in which it approved a request by the second respondent to discharge applicants be and are hereby set aside. The letters by the first respondent to the second respondent dated 14 September 2022 approving the request by the second respondent to discharge the applicants from the second respondents employ be and are hereby set aside. The letters to the applicants by the Town Clerk of the second respondent dated 14 November 2022 giving effect to the approvals granted by first respondent referred to in paragraph 2 above be and are hereby set aside and declared of no force or effect.The applicants be and are hereby reinstated in their positions as Chamber Secretary and Town Treasurer respectively, without loss of salary and benefits. Should reinstatement not be possible for any reason, the second respondent shall pay to the applicants damages in lieu of reinstatement The Respondents to pay the costs of this application.” Background Facts Both applicants were employed by the second respondent. First applicant was employed as Chamber Secretary, while the second applicant was employed as a Town Treasurer. On 22 April 2021 both applicants were put on suspension without pay and benefits by the second respondent Acting Town Clerk. Subsequently, they were put through a disciplinary process. The second respondent eventually dismissed both applicants from its employ. The applicants were aggrieved and filed this application accusing the respondents of having committed numerous irregularities in the manner they handled the case. The application is opposed. In the day of hearing Counsel for second respondent took a point in limine namely that the application is a nullity in that it was made in terms of a nonexistent law. The second point in limine raised is that applicants failed to comply with the provisions of Rule 62(5) of the Rules of this court in that the record of proceedings challenged are not before the court. The contention by second respondent is that the application was made in terms of the repealed rules therefore anything so done is a nullity and this court cannot condone a nullity. The first applicant submitted that the issue of citing old rules was a non-issue since the content shows that it is an application for review. In other words, what matters is the substance. He also in addition raised points in limine against respondents. What is critical in any view is to determine whether or not there exists an application before me before considering events that occurred subsequently. Applicants admit that the heading of their application states that “ COURT APLICATION FOR REVIEW IN TERMS OF ORDER 33Rule 256 as read with ORDER 40 Rule 359 (8) as FURTHER READ WITH SECTION 26 AND 27 OF THE HIGH COURT ACT [Chapter 7:06].” This application was filed on 8 November 2022 citing rules that had been repealed by the Second Schedule of SI 202 of 2021 on 23rd July 2021. In my view O 40 has nothing to do with review. This application should have been made in terms of R 62 of the new rules that is SI 202/2021. This defect renders the application a nullity. Therefore there is no valid application before the court. I find merit in the first point in limine raised by the second Respondent. R62 (5) states; “ The clerk of the inferior court whose proceedings are being brought on review, or the tribunal board or officer whose proceedings are being brought on review, shall within twelve days of the date of service of the application for review lodge with the registrar the original record, together or with two typed copies, which copies shall be certified as true and correct copies. The parties for the review requiring copies. The parties to the review requiring copies of the record for their own use shall obtain them from the official who prepared the record, Provided that it shall be the responsibility of the party seeking review to ensure compliance with this sub rule.” (underlining is mine) In casu, applicants as the parties seeking review have not ensured compliance with this provision. They have failed to make sure that the record of proceedings of the Chairperson of the Local Board or any other record that they challenge is attached to the application. It is peremptory that such a record be placed before a court handling a review application. Its absence in the present matter is proof that the matter was prematurely set before court. Accordingly, the point in limine is upheld. It is therefore ordered that the matter be and is hereby struck off the roll with costs. Zinyengere Rupapa Legal Practitioners, second Respondent’s Legal Practitioners 3 HH 420-25 HC 7573/22 3 HH 420-25 HC 7573/22 NAISON MACHINGAUTA and LOVEMORE WARURAMA versus CHAIRMAN LOCAL GOVERNMENT BOARD N. O . and MUNICIPALITY OF BINDURA and MINISTRY OF LOCAL GOVERNMENT NATIONAL HOUSING & PUBLIC WORKS. HIGH COURT OF ZIMBABWE TAKUVA J Harare, 24 October 2024 & 8 July 2025 Application for Review First applicant self actor Second applicant self-actor No appearance, for the first respondent Mr L Zinyengere No appearance for the third respondent Takuva J: This is an application for review wherein the applicants seek the following amended order; “The application for review be and is hereby granted. The first Respondent’s resolution numbers LGB006/ 2022 and LGB007/22 respectively in which it approved a request by the second respondent to discharge applicants be and are hereby set aside. The letters by the first respondent to the second respondent dated 14 September 2022 approving the request by the second respondent to discharge the applicants from the second respondents employ be and are hereby set aside. The letters to the applicants by the Town Clerk of the second respondent dated 14 November 2022 giving effect to the approvals granted by first respondent referred to in paragraph 2 above be and are hereby set aside and declared of no force or effect. The applicants be and are hereby reinstated in their positions as Chamber Secretary and Town Treasurer respectively, without loss of salary and benefits. Should reinstatement not be possible for any reason, the second respondent shall pay to the applicants damages in lieu of reinstatement The Respondents to pay the costs of this application.” Background Facts Both applicants were employed by the second respondent. First applicant was employed as Chamber Secretary, while the second applicant was employed as a Town Treasurer. On 22 April 2021 both applicants were put on suspension without pay and benefits by the second respondent Acting Town Clerk. Subsequently, they were put through a disciplinary process. The second respondent eventually dismissed both applicants from its employ. The applicants were aggrieved and filed this application accusing the respondents of having committed numerous irregularities in the manner they handled the case. The application is opposed. In the day of hearing Counsel for second respondent took a point in limine namely that the application is a nullity in that it was made in terms of a nonexistent law. The second point in limine raised is that applicants failed to comply with the provisions of Rule 62(5) of the Rules of this court in that the record of proceedings challenged are not before the court. The contention by second respondent is that the application was made in terms of the repealed rules therefore anything so done is a nullity and this court cannot condone a nullity. The first applicant submitted that the issue of citing old rules was a non-issue since the content shows that it is an application for review. In other words, what matters is the substance. He also in addition raised points in limine against respondents. What is critical in any view is to determine whether or not there exists an application before me before considering events that occurred subsequently. Applicants admit that the heading of their application states that “ COURT APLICATION FOR REVIEW IN TERMS OF ORDER 33Rule 256 as read with ORDER 40 Rule 359 (8) as FURTHER READ WITH SECTION 26 AND 27 OF THE HIGH COURT ACT [Chapter 7:06].” This application was filed on 8 November 2022 citing rules that had been repealed by the Second Schedule of SI 202 of 2021 on 23rd July 2021. In my view O 40 has nothing to do with review. This application should have been made in terms of R 62 of the new rules that is SI 202/2021. This defect renders the application a nullity. Therefore there is no valid application before the court. I find merit in the first point in limine raised by the second Respondent. R62 (5) states; “ The clerk of the inferior court whose proceedings are being brought on review, or the tribunal board or officer whose proceedings are being brought on review, shall within twelve days of the date of service of the application for review lodge with the registrar the original record, together or with two typed copies, which copies shall be certified as true and correct copies. The parties for the review requiring copies. The parties to the review requiring copies of the record for their own use shall obtain them from the official who prepared the record, Provided that it shall be the responsibility of the party seeking review to ensure compliance with this sub rule.” (underlining is mine) In casu, applicants as the parties seeking review have not ensured compliance with this provision. They have failed to make sure that the record of proceedings of the Chairperson of the Local Board or any other record that they challenge is attached to the application. It is peremptory that such a record be placed before a court handling a review application. Its absence in the present matter is proof that the matter was prematurely set before court. Accordingly, the point in limine is upheld. It is therefore ordered that the matter be and is hereby struck off the roll with costs. Zinyengere Rupapa Legal Practitioners, second Respondent’s Legal Practitioners