The
applicant seeks an order setting aside the registration of an
arbitral award granted in favour of the respondent. The award was
submitted for registration at the High Court in terms of the
provisions of the Labour Act [Chapter 28:01] and was duly registered
on 25 February 2008.
The
applicant submits that the registration of the award was defective in
that it was done by way of a chamber application, without notice to
the applicant, instead of a court application, which would have
required notice to be served on the applicant.
In
response, the respondent maintains not only that it proceeded
lawfully, but that the applicant, in its own application for the
rescission of the registration of the award failed to comply with the
Rules of Court in a manner fatal to its application for rescission.
I
shall examine, first, the issue of the regularity or otherwise of the
application before this court, i.e., the application for rescission
of judgment. If the application is properly before this court, then
the other issues will follow. If not, then cadit
quaestio.
Rule
230 of the High Court of Zimbabwe Rules, RGN 1047/1971, as amended,
prescribes, in mandatory terms, that a court application shall be
made in Form No. 29, or, where it is ex
parte,
in Form No.29B, which latter form is generally used for chamber
applications.
It
is common cause that the form used by the applicant for the
rescission of judgment is neither of the above stated forms, that is,
it is in neither the court application form nor the chamber
application form nor the hybrid ex
parte
court application form.
Now,
Rule 4C gives the court or judge discretion to condone departures
from the rules, while Rule 229C deals with a specific form of
departure, viz., proceeding by way of court instead of chamber
application and vice
versa.
In
terms of Rule 229C, the use of one form instead of another, of Form
29 instead of Form 29B, does not, in itself, constitute sufficient
ground for dismissing the application, it being necessary for a court
or judge to conclude that some interested party has thereby suffered
prejudice which cannot be remedied by directions for service on the
injured party, with or without an order of costs.
In
his submissions on behalf of the applicant, counsel for the applicant
sought to rely on Rule 229C arguing that the respondent had neither
alleged nor demonstrated any prejudice. However, the applicant's
error in this instance was not one of using one form instead of
another but of using a completely different format from the
authorized ones, and, therefore, falls directly under Rule 4C and not
Rule 229C. (Ironically, it is the
respondent's alleged breach of the rules – proceeding by way of
chamber instead of court application in the registration of the
arbitral award – which falls squarely under Rule 229C.)
Lest
an impression be formed that this is a sterile dispute about forms, I
have deemed it necessary to outline, in a summary way, what each of
the two forms contains, on the one hand, and the unique features of
the format used by the applicant, on the other.
In
Form 29, the applicant gives notice to the respondents that he or she
intends to apply to the High Court for an Order in terms of an
annexed draft and that the accompanying affidavit/s and documents
shall be used in support of the application. It goes on to inform the
respondent, if he or she so wishes, to file papers in opposition in a
specified manner and within a specified time limit, failing which the
respondent is warned that the application would be dealt with as an
unopposed application.
In
Form 29B, an application is made for an order in terms of an annexed
draft on grounds that are set out in summary as the basis of the
application and affidavits and documents are tendered in support of
the application.
By
contrast, the unique format used by the applicant consists of a
heading:
“Application
for Rescission of Judgment” and the following terse statement:
“Take notice that the Applicant, Zimbabwe Open University, hereby
applies for Rescission of Judgment. The annexed affidavit is used in
support thereof.”
Now,
the format adopted by the applicant does not contain the plethora of
procedural rights that the respondent is alerted to in Form 29 nor
the summary of the grounds of the application required in Form 29B.
Can this substantial departure from the rules be condoned under Rule
4C?
Rule
4C states as follows:
“The
court or judge may, in relation to any particular case before it or
him, as the case may be –
(a)
Direct, authorize or condone a departure from any provision of these
rules, including an extension of any period specified therein, where
it or he, as the case may be, is satisfied that the departure is
required in the interests of justice;
(b)
Give such directions as to procedure in respect of any matter not
expressly provided for in these rules as appear to it or him, as the
case may be, to be just and expedient.”
In
the cases of Simross
Vintners (Pty) Ltd v Vermeulen, VRG Africa (Pty) Ltd v Walters t/a
Trend Litho, Consolidated Credit Corporation (Pty) Ltd v Van der
Westhuizen
1978 (1) SA 779, the applicants, in three applications for compulsory
sequestration, had used the notice of motion prescribed in Form 2 of
the South African Uniform Rules of Court, which was a form
appropriate to ex
parte
applications. The applicant in the first application had not served
the notice on the respondent but the applicants in the other two
applications had so served the notices on the respondents. It was
held that in the first application the use of the Form 2 was
perfectly in order as the application was brought ex
parte.
However, as to the other two applications, it was held that as they
were not brought ex
parte,
the notices of motion used in these applications (i.e., the Form 2
notice) were nullities and their use could not be condoned and the
applications had to be struck off the roll:
“…,.
This applicant also relies on a nulla
bona
return, but, it chose not only to address the Form 2 notice of motion
to the respondent, but also to serve it on him. Hence, it is not
brought ex
parte
and Rule 6(5) applies. It was suggested in some of the other
applications which were eventually struck off the roll that this
non-compliance might be condoned under Rule 27(3). I have considered
that possibility in this case, but, apart from the fact that no cause
at all is shown why there should be condonation, the more fundamental
difficulty arises that the document which purports to be a notice of
motion is, as I have indicated above, a nullity, and I have grave
doubt whether the Court has power, under this Rule, to repair a
nullity, a concept in law which carries within itself all the
elements of irreparability…,. In addition it must be emphasized
that Form 2(a) contains a description of the procedural rights of the
respondent after service of the notice of motion. These rights are
considerable and substantial. How could a Court, even if it were not
a nullity, put a blue pencil through all these rights in the absence
of the person in whom they reside and without notice to him that such
an order which abrogates his rights might be made? This application
is struck off the roll.”
Our
own Supreme Court has agreed with the above approach to
non-compliance with mandatory rules of court.
In
the case of Jensen
v Acavalos
1993 (1) ZLR 216 the superior court dealt with the non-compliance
with provisions of Rule 29 of the Rules of the Supreme Court, RGN
380/1964 and said the following at p.220 A-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: De
Jager v Diner & Anor
1957
(3) SA 567 (A) at 576 C-D.
In
Hattingh
v Pienaar
1977 (2) SA 182 (O) at p.183 KLOPPER JP held that a fatally defective
compliance with the rules regarding the filing of appeals cannot be
condoned or amended. What should actually be applied for is an
extension of time within which to comply with the relevant rule. With
this view I most respectfully agree; for if the notice of appeal is
incurably bad, then, to borrow the words of LORD DENNING, in McFoy
v United Africa Co Ltd
[1961]
3 All ER 1169 at 1172, 'every proceeding which is founded on it is
also bad and incurably bad. You cannot put something on nothing and
expect it stay there. It will collapse.'”
As
if the non-compliance with the mandatory rules noted above was not
bad enough, the applicant has not bothered to apply for condonation
of its failure to comply with the rules in spite of such
non-compliance having been drawn to its attention as early as when
the notice of opposition was served on it.
In
my considered view, where the errant party has not applied for
condonation in spite of its awareness of its non-compliance, it
suffices for the objecting party merely to point out the
non-compliance for the application to be struck off. Furthermore, the
applicant's failure to even recognize the need to apply for
condonation shows a cavalier approach to compliance with rules of
court, which must be discouraged by an exemplary order of costs.
Accordingly,
this application is struck off the roll with costs on the legal
practitioner and client scale.
