Hebert Maunga v Sakunda Logistics

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/677/14
HARARE ON 26th SEPTEMBER , 2014
CASE NO. LC/H/354/12
AND 10 OCTOBER, 2014
JUDGMENT NO. LC/H/677/14
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IN THE LABOUR COURT OF ZIMBABWE                       JUDGMENT NO. LC/H/677/14

HARARE ON 26th SEPTEMBER , 2014			             CASE NO. LC/H/354/12

AND 10th OCTOBER, 2014

In the matter between

HEBERT MAUNGA			–	APPLICANT

And

SAKUNDA LOGISTICS			-	RESPONDENT

Before The Honourables L.K. Kudya, J

For Applicant :	M. Gwaunza (Legal Practitioner)

For Respondent:	R.T. Masomera (Z F T U)

KUDYA J,

This matter was set down as an application for the stay of attachment in execution of a default consent order which was granted by the Court in a matter where Applicant employer and Respondent employee were involved in a labour dispute where the Respondent had been dismissed from employment by the Applicant.

On the set down date parties agreed that the stay matter be heard together with the application for the rescission of the consent judgment registered with the Court at the Respondent’s behest.

The main argument in both the stay and the rescission application is that the consent judgment came about without the Applicant’s instruction or sanction. To that end the lawyers who used to represent Applicant deposed to affidavits demonstrating the fact that the consent judgment indeed came about without the Applicant’s blessing and due to problems that had beset them.

In particular one Tinashe Tanyanyiwa had rushed to his ailing mother who later on passed away in Swaziland thus leaving files for the matter locked up resulting in the consent judgment Wellington Pasipanodya who even presented before this Court and gave viva voce evidence told the Court that indeed the decision to consent to judgment was his brain child without any input from the Applicant. He argues that in his opinion legal costs were now exceeding the main claim and he deemed it prudent to cut costs by consenting to judgment.

The law is clear that one should not easily resile from a judgment that they would have consented to unless it can be demonstrated that the consent was birthed by fraud or there is consent ground for the Court to believe that the congent was not obtained properly. It is apparent from the Applicant’s former lawyers that the consent was birthed without instruction from the Applicant. To that extent it would be unfair to hold the Applicant to instructions which id did not give to Counsel.

Further to that on the main merits it is arguable whether indeed the Respondent was unfairly dismissed. To that extent the Applicant’s case enjoys some prospect of success. It would thus be irregular for the Court to allow execution to take place in a case where there are chances that the main appeal can succeed. It would also be irregular to hold the Applicant to a consent judgment which was not obtained at its instance. In the circumstances it is clear that both the stay and rescission application are merited and they should both succeed.

IT IS ORDERD THAT

Applicant for stay of attachment of Applicants property being with merit it be and hereby succeeds. Application for the rescission of the consent judgment obtained in default of the Applicants it being merited it be and hereby succeeds.

Each party to bear its own costs.

Gwaunza and Mapota – Applicant’s legal practitioners