Francis Nyandoro v Capri/Innscor Appliances

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/48/2016
HARARE, 22 JANUARY 2016
CASE NO. LC/H/APP/1006/15
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/48/2016

HARARE, 22 JANUARY 2016    		CASE NO. LC/H/APP/1006/15

AND 5 FEBRUARY 2016

In the matter between:-

FRANCIS NYANDORO					Applicant

And

CAPRI/INNSCOR APPLIANCES			Respondent

Before Honourable P. Muzofa, Judge

For Applicant		S Masukume (Trade Unionist)

For Respondent		E Donzvambeva (Legal Practitioner)

MUZOFA, J:

This is an application for condonation for late noting of an application for rescission of a default judgment.

The respondent raised two preliminary points for determination.

The first issue was that the application for condonation was not supported by the founding affidavit.  To that extent there was no proper application for condonation for late noting of an application for rescission of a default judgment.

The applicant had no meaningful submissions to make in response.

It is settled that an application falls or stands on the founding papers.  Moyo v Zvoma SC 28/10.  The application is not what it terms itself to be.  According to the applicant’s founding affidavit this is an application for rescission of judgment.  The Notice of Application Form LC 1 the brief facts show that the application is for rescission of judgment.  The purported application for condonation of late noting of an application for rescission of a default judgment would remain unsubstantiated and therefore can only be dismissed.

Even if the court were to assume that there is an application for rescission of a default order.  That application would be improperly before the court in that it was noted outside the prescribed period.  In terms of Rule 33 of the Labour Court Rules, 2006 applications for rescission of judgment should be made within thirty days from the date the applicant became aware of the order.

The order which forms the basis of this application was issued on 4 August 2014.  This application was filed on 18 August 2015 almost one year later.  Prima facie the application was out of time it was, as of necessary incumbent that an application for condonation be made first.  So, the application for rescission of judgment would be improperly before the court.

I am persuaded by the respondent.  The applicant has not brought a proper application before the court.

The respondent also raised issue that applicant had not used Form LC 1 in making its application.  This point was withdrawn when applicant referred the respondent to the attachments filed with the court that included the Form LC 1.

The determination of the first preliminary point disposes of this matter.  There is no need to address the other preliminary point.

The respondent has requested for costs on a higher scale on the basis that this application is an abuse of court process.  I donot think so.  According to the Bindura Municipality v Mugogo SC 32/15 the proper course to follow where a matter has been struck off is to apply for condonation.  In casu applicant prima facie made an application for condonation of late noting of an application for rescission of judgment.  The application only met its demise due to the improper supporting documents.

Accordingly the following order is made.

The application for condonation for late noting of an application for rescission of judgment be and is hereby dismissed with costs on an ordinary scale.

Wintertons, respondent’s legal practitioners