Cainy Binda V SPAR Harare (Private) Limited

### Preamble
IN THE LABOR COURT OF ZIMBABWE
JUDGMENT NO LC/H/790/2014
HARARE, 12 SEPTEMBER 2014
CASE NO
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IN THE LABOR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/790/2014

HARARE, 12 SEPTEMBER 2014 &			  CASE NO LC/H/178/2014

21 NOVEMBER 2014

In the matter between

CAINY BINDA								APPLICANT

Versus

SPAR HARARE (PRIVATE) LIMITED					RESPONDENT

Before The Honourable L F Kudya		:	Judge

The Applicant in Person

For the Respondent    R Nembo   (Legal Practitioner)

KUDYA J:

This is an application for the rescission of a default judgment handed down by this court on 7 February 2014 where the applicant who was the then appellant failed to turn up on the set down date to prosecute his appeal.

The background to the matter is that the applicant who was in the respondent’s employment as an assistant creditors’ manager was suspended from duty and charged with misconduct. It was alleged that he contravened section 4 (i) or 4 (f) of the National Code of Conduct that is, he acted inconsistently with the express or implied terms of his contract. Alternatively it was alleged that he performed his duty with gross incompetence when he failed to submit timeous and requisite number of reconciliatory of the respondent’s accounts thus prejudicing the respondent and its customers. He appeared before a disciplinary committee which found him guilty of the infraction complained about. He was consequently dismissed from employment.

Aggrieved by the dismissal he appealed internally and he ended up at arbitration where the arbitrator also confirmed the dismissal. Irked by the confirmation of the dismissal, he appealed to the labour court against his dismissal citing the fact that arbitrator had ill-considered the facts placed before him and ended up agreeing with the dismissal penalty. The matter was set down for hearing on 5 February 2014 a date on which applicant defaulted court leading to the dismissal of his appeal for want of prosecution. It is the default judgment which gave birth to the rescission application which is the subject matter of this judgment.

As correctly observed and demonstrated by case law cited by the respondent in its heads of argument filed of record the law is clear that basically two requirements need to be satisfied for one to succeed in such an application.   See Chihwayi Enterprises v Atish Investments 2007 (2) ZLR 89.

These are mainly, the reason for the default and the merits of the main appeal if the rescission were to be allowed. Each of these tenets will be addressed below:

Reason for default

The applicant states that he got lost and went to the old premises where the Labour Court used to operate from. By the time he got to the correct venue for the hearing he realised that his appeal had by then been dismissed since he did not show up when it came up for hearing. The respondent did not vehemently challenge this fact but maintained that, whilst it was a possibility that the applicant missed court in those circumstances it was also probable that he may not have been telling the truth. The reason for his delay being a possibility the court concluded that it was fair and in the interest of justice that he be given the benefit of the doubt in that respect. The reason or excuse being probable should be accepted by the court as being cogent and well made out.

Having concluded that the explanation for the delay was plausible the next issue to be concluded is whether there are bona fides in his appeal.

Bona Fides of Appeal

A reading of all the appeal grounds clearly show that they are all factual and none of them passes the test of section 98 (10) in relation to appeals from arbitration. What this effectively means is that the appeal as it stands based on the set out grounds is bad at law. It is susceptible to being struck off the roll for non-compliance with the rules of court. To this extent the appellant does not have a bona fide appeal judging from the papers filed of record. This militates against the resuscitation of the matter to allow it to be heard on the appeal merits. The scales are therefore in favour of the refusal to grant rescission as it would not serve any meaningful purposes as it would be premised on a defective appeal. The application for rescission should therefore fail.

IT IS ORDERED THAT

The application for rescission of judgment being without merit, it be and is hereby dismissed with each party bearing its own costs.

Sawyer & Mkushi, respondent’s legal practitioners