Naison Machingauta and Lovemore Warurama v Chairman Local Government Board N.O. and Municipality of Bindura and Ministry of Local Government National Housing & Public Works

The first applicant was employed as Chamber Secretary and the second applicant as Town Treasurer by the Municipality of Bindura (second respondent). On 22 April 2021, both applicants were suspended without pay and benefits by the second respondent's Acting Town Clerk. They were subjected to a disciplinary process and subsequently dismissed from employment. The first respondent (Chairman Local Government Board) passed resolution numbers LGB006/2022 and LGB007/22 approving the second respondent's request to discharge the applicants. Letters dated 14 September 2022 and 14 November 2022 gave effect to these approvals. The applicants sought to review these decisions, alleging numerous irregularities in how their cases were handled.

• Whether the application for review was a nullity for being brought under repealed legislation (Order 33 Rule 256 and Order 40 Rule 359(8) instead of Rule 62 of SI 202/2021)
• Whether the applicants complied with Rule 62(5) requiring the record of proceedings to be lodged with the court
• Whether substance should prevail over form regarding citation of incorrect rules

The matter was struck off the roll with costs against the applicants.

An application for review brought under repealed legislation is a nullity and creates no valid application before the court. Where rules have been repealed and replaced (in this case by SI 202/2021 on 23 July 2021), any application filed thereafter must comply with the new rules. Additionally, Rule 62(5) peremptorily requires the party seeking review to ensure that the original record of proceedings being challenged is lodged with the registrar, and failure to do so renders the matter premature and not properly before the court.

The court noted that Order 40 (which was cited by the applicants) has nothing to do with review applications. The court also observed that the absence of the record of proceedings is proof that the matter was prematurely set before court, implying that even if the citation of repealed rules could be overlooked, the failure to attach the record would independently justify striking off the application.

This case emphasizes the strict adherence required to procedural rules in Zimbabwean review applications. It demonstrates that citing repealed legislation renders an application a nullity that cannot be cured, and that compliance with peremptory provisions requiring the record of proceedings is essential. The judgment illustrates that substance cannot overcome fundamental procedural defects in review applications, particularly where the applicable rules have been repealed and replaced by new statutory instruments.