Gilbert Mushure v N.E.C. Transport Operating Industry

### Preamble
IN THE LABOUR OF ZIMBABWE
JUDGMENT NO. LC/H/105/25
HELD AT HARARE 12 MARCH 2025
CASE NO. LC/H/134/25
IN THE MATTER BETWEEN:
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IN THE LABOUR OF ZIMBABWE			JUDGMENT NO. LC/H/105/25

HELD AT HARARE 12 MARCH 2025				CASE NO. LC/H/134/25

IN THE MATTER BETWEEN:

GILBERT MUSHURE						APPLICANT

AND

N.E.C. TRANSPORT OPERATING INDUSTRY			RESPONDENT

Before Mr. Justice L.M. Murasi

IN CHAMBERS

MURASI J.,

This matter was brought to me in terms of Rules 34 of the Labour Court Rules, 2017.

This is an application which is titled as follows:

“Take note that I make this application in terms of the Labour Act 17 Section 92 C (i) (a) (b) ( ) with the heading which say Rescission or Alteration by Labour Court of its Own Decisions)”

The present application was made pursuant to the Order rendered by this Court on 27 January 2025 to the following effect:

“1. The application for condonation is hereby struck off the roll by reason of non-compliance with the Rules, that is, failure to attach the requisite draft application, judgments sought to be appealed against.”

I should point out that the Order issued by this Court bears the Case Number in the stamp affixed to it. Applicant is disgruntled by the nature of the Order issued by the Court and has made the following averments:

“Also take note that my application was not for just any condonation but was for a specific application for condonation for filing of PROOF OF SERVICE Late but it’s not necessary.

The judge made a patent error in that he seemingly confused my application for condonation for Late Filing of Proof of Service (LCH/1249/24) with an application for Leave to Appeal to Supreme Court hence he ruled that the Judgment Being Appealed Against was not attached.”

Generally, condonation of the non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him/her from compliance. (See Fanapi v East Cape Administration Board 1983 (2) SA 688 (E)). It is also a truism that the court’s power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant. It is also correct to state that an applicant must avail ‘something which the Court considers sufficient to justify it in granting indulgence’. (See Rose & Anor v Alpha Secretaries Ltd 1947 (4) SA 511 (A).

In case number LCH/1249/24, Applicant sought condonation of the late filing of the “proof of service’. The ‘proof of service’ related to an application for leave to appeal to the Supreme Court. The Order dismissing the application for a failure to file the ‘proof of service’ from the Registrar was not attached to the application. The draft application for leave to appeal to the Supreme Court was not attached. These copies would assist the court in showing these documents were filed and when compliance by Applicant was required in terms of the Rules. The Court is enjoined to make a value judgment upon considering ALL the relevant facts pertaining to a particular case. Such information was not availed by the Applicant to enable the Court to arrive at a just decision.

Applicant has made an application for Rescission of judgment.  Firstly, this was not a default judgment. The matter was dealt with In Chambers. Secondly, the Order identifies a defect in the application which has not been complied with. The documents referred to are necessary for the Court to make a determination on whether condonation should be granted. There is therefore no error to be corrected. The present application nought to be dismissed.

The following Order is appropriate.

The application for rescission of the Order issued by this Court on 27 January 2025 is hereby dismissed.

There is no order as to costs.