City of Masvingo v Masvingo City Council Workers Committee

IN THE LABOUR COURT OF ZIMBABWE                 JUDGMENT NO. LC/MS/01/2013
HELD AT MASVINGO ON 11 JANUARY, 2013               CASE NO. LC/ MS/O1/2011
In the matter between



CITY OF MASVINGO                                             –        Applicant
And

MASVINGO CITY COUNCIL WORKERS COMMITTEE                      –        Respondent




Before The Honourable L. Matanda-Moyo, President


(IN CHAMBERS)



MATANDA-MOYO, L.

      This is an application for rescission of judgment handed down by this

court on 8th July 2011. For such an application to succeed Applicant must;

   1) give reasonable explanation for failing to attend court at the appointed

      time; and

   2) show that it has good prospects of success on appeal.



   Applicant was served to attend court through a telefax mode. Applicant

denies having received the said fax message. In other words Applicant submits

that he was never served with a notice to appear in court on 8 July 2011. For

default judgment to be competently granted, Applicant should have been in

wilful default. Applicant argues that it was not in wilful default.
                                                    JUDGMENT NO. LC/MS/01/2013


   It is a prerequisite that a party has to be aware that its case was set down for

that day. With such knowledge, if a party decided not to attend court, then such

party would be in wilful default.



   I have perused the purported return of service which is a print out showing

the time the fax was sent to Applicant. It shows that such fax was sent on 2

January at 23:37 hours. The notice of set down was issued at Gweru on 3 June

2011. What ever fax was sent to Applicant on 2 January was before the issuance

of the notice of set down and could not relate to such set down. I am satisfied

that there was no proof of service of the notice of set down.



   Once I make a finding that Applicant was not served with a notice to attend

court it becomes unfair for me to even make a determination on prospects of

success. Applicant has a right to be the heard before any determination is made

for or against it. This court should observe the principles of natural justice in

particular the right to be heard.    The default judgment was issued on the

erroneous belief that Applicant had been served to attend court.



   Accordingly the default judgment entered by this court on 8 July 2011 against

Applicant be and is hereby rescinded. Costs will be in the cause.




                                                                                  2
JUDGMENT NO. LC/MS/01/2013




                         3