Clalstey Investments (Pvt) Ltd t/a Red 32 Sports Bar & Night Club v Tatenda Basira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/134/24
HARARE 6 MARCH 2024
CASE NO LC/H/756/23/
CLALSTEY INVESTMENTS (PVT) LTD T/a
RED 32 SPORTS BAR & NIGHT CLUB
TATENDA BASIRA
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IN THE LABOUR COURT OF ZIMBABWE

HARARE 6 MARCH 2024

CLALSTEY INVESTMENTS (PVT) LTD T/a
RED 32 SPORTS BAR & NIGHT CLUB

TATENDA BASIRA

Before the Honourable G. Musariri Judge:

For Applicant - Mr L.C. Ndoro, Attorney

For Respondent - Mr B. Mudiwa, Attorney
Mr B. Mupwanyiwa. Attorney

MUSARIRI, J:

Applicant applied to this Court for rescission of judgment which Respondent opposed. At the onset of oral argument respondent raised 4(four) points in limine. The Court will deal with the 2 points which are dispositive of the matter.

1. That the application was filed out of time

On the 3rd July 2023 this Court issued a default order in terms of which it ordered applicant to reinstate respondent or pay him damages in lieu of reinstatement. Rule 40 of the Labour Court Rules S.I. 150/17 requires that an application for rescission of judgement/order should be made, within twenty-one days from the date after the party has had knowledge of the determination, order or judgement;

Provided that unless the contrary is proven, the party shall be presumed to have had knowledge of the judgement within two days after the date thereof.”


The present application for rescission was filed on 27th September 2023 which is clearly outside the requisite twenty-one-day period. In its founding affidavit applicant’s Managing Director stated that

“1. ... The herein default Labour Court Order under contention was handed down on the 3rd of July 2023. However, the Applicant was only made aware and given the respective Labour Court Order on the 26th of August 2023...”

Going by applicant own admission the twenty-one-day period lapsed by close of business on the 25th September 2023. That means the present application was made 2 days out of time. Apparently, Applicant was unaware of its default and did not seek condonation. Its belated attempt to seek condonation at the hearing by invoking Rule 32 was out of order and is discounted. In any event Rule 32 deals with a matter that is properly pending before the Court. The application in casu is improperly before the Court

2. **That the application does not comply with Rule 11A (4):**

The Rule provides that every appeal/application shall provide an alternative email address for the service of documents. The Rule is couched in peremptory terms. The present application does not provide the requisite email address. On that account the application is fatally defective.

In light of the Court’s take on the 2 points analysed above, it is unnecessary to deal with the remaining points.


Wherefore it is ordered that,

1. Respondent’s points in limine be and are hereby upheld;

2. The application for rescission of judgement is struck off the roll as being fatally defective for failure to comply with Rules 11A (4) and 40 of the Labour Court Rules; and

3. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E
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