Zimbabwe Open University v Dr. O Mazombwe

An arbitral award was granted in favour of the respondent (Dr. Mazombwe) and registered at the High Court on 25 February 2008 in terms of the Labour Act (Chapter 28:01). The registration was done by way of a chamber application without notice to the applicant (Zimbabwe Open University). The applicant then sought to set aside the registration of the arbitral award, arguing that the registration was defective because it was done without notice via chamber application instead of a court application. The applicant's rescission application used neither the prescribed Form 29 (court application) nor Form 29B (chamber application), but instead used a unique format consisting only of a heading "Application for Rescission of Judgment" and a brief statement. The respondent opposed the application, arguing that not only had it proceeded lawfully in registering the award, but that the applicant's rescission application failed to comply with the Rules of Court in a manner fatal to its application.

• Whether the applicant's rescission application was properly before the court given its non-compliance with the mandatory forms prescribed in Rule 230 of the High Court Rules
• Whether the court could condone the departure from the prescribed forms under Rule 4C
• Whether a notice of motion that is a nullity can be remedied through condonation
• Whether the applicant's failure to apply for condonation should result in the application being struck off

The application was struck off the roll with costs on the legal practitioner and client scale (attorney-client scale).

A notice of motion or application that fails to comply with the mandatory forms prescribed in Rule 230 of the High Court Rules (Form 29 for court applications or Form 29B for ex parte/chamber applications) and instead uses a completely different format is a nullity and incurably defective. Such non-compliance cannot be condoned under Rule 4C because: (1) a nullity cannot be put right through condonation; (2) the defective format deprives the respondent of substantial procedural rights; and (3) a court cannot abrogate a respondent's procedural rights without notice. Where a party is aware of its non-compliance with mandatory rules but fails to apply for condonation, the application must be struck off the roll.

The court noted that ironically, the respondent's alleged breach (proceeding by way of chamber instead of court application in registering the arbitral award) would have fallen squarely under Rule 229C, which deals specifically with using one prescribed form instead of another and requires demonstration of prejudice. The court also observed that where an errant party has not applied for condonation despite being aware of its non-compliance, it suffices for the objecting party merely to point out the non-compliance for the application to be struck off. The court commented that the applicant's failure to recognize the need to apply for condonation showed a cavalier approach to compliance with rules of court, which must be discouraged by exemplary orders of costs.

This case reinforces the importance of strict compliance with mandatory procedural rules in Zimbabwean courts, particularly regarding the prescribed forms for court applications. It demonstrates that substantial departures from prescribed forms create nullities that cannot be remedied through condonation, and that failure to seek condonation when non-compliance is pointed out will result in striking off the application with punitive costs. The case follows South African jurisprudence on procedural compliance and applies it within the Zimbabwean legal context.