Malvern Mano v Emmanuel Tshuma (In His Official Capacity as Chairman of the Disciplinary Committee Medical Aid Society of Central Africa) & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/69/2023
HARARE, 14 FEBRUARY 2023 &
2 MARCH 2023
CASE NO: LC/H/1009/22
REF CASE NO: LC/H/REV/119/19
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/69/2023

HARARE, 14 FEBRUARY 2023 &	CASE NO: LC/H/1009/22

2 MARCH	2023	REF CASE NO: LC/H/REV/119/19

In the matter between: -

MALVERN MANO	APPLICANT

EMMANUEL TSHUMA (IN HIS OFFICIAL CAPACITY	1st RESPONDENT AS CHAIRMAN OF THE DISCIPLINARY COMMITTEE

MEDICAL AID SOCIETY OF CENTRAL AFRICA)

MEDICAL AID SOCIETY FOR CENTRAL AFRICA	2nd RESPONDENT

Before the Honourable Kudya J

For the Applicant	S.N. Muhambi (Unionist)

For the Respondent	N. Mugandiwa (Legal Practitioner) KUDYA, J:

This is an application for the rescission of a default judgment handed down on 4 October 2022 in a labour dispute pitting the applicant employee and the respondent employer. The background to the matter is that the employee filed a review application with the Labour Court challenging the process leading to his dismissal from his workplace. He however did not attend court on the set down date despite service of the set down date on his union representatives. In the result default judgment was granted. He now wishes to have that default

judgment set aside so that his review application can be heard on its merits.

The test for rescission of judgement is settled. See Stockhill v Griffiths 1992(1) ZLR 172 (SC). Each of the tests is addressed below;

Explanation for the default and the bona fides of the same

The employee maintains that he defaulted because he was not aware of the set down date. He states further that service was effected on his union representatives yet he had prior to that service informed the court through the Registrar of his change of address. A reading of the

record shows that on 12 September 2022 the employee filed with the Registrar a document bearing his address of service being distinct from the union’s address. The Union in its oral address to the court stated that there were administrative issues that dogged the union during that period to the extent that over that period the employee assumed self-acting status but at the timer of filing of the rescission of judgment application or the union was functional to the extent that it again was representing the employee. If the court buys the union’s story it can excuse the employee’s inelegantly crafted notification of the change of address. To that extent it would thus have been wrong for the court to serve the notification to attend the hearing on the union. It is clear that the employee at least made an effort to advise the court of the new address albeit inelegantly. The judgment which was granted on the basis of the return of sermon on the union can thus not stand in the face of the document of 12 September 2022. It is also settled that the enquiry is a holistic one so there is need for the court to deal with the other tenets before a conclusion can be reached on whether or not the court can grant rescission of judgment.

Prospects of success on the merits

It is settled that an application stands/falls on the basis of the affidavit. See Director of Civil Aviation v Hall 1990(2) ZLR 354. In the case at hand the employee did not at all attempt to address the prospects of his founding affidavit. This is so despite the fact that at the time of the lodging of the rescission of judgement he now had trade union representation. The assumption is that he now had the benefit of representation of persons who appreciate what should be pleaded in a case of this nature. The net result is that the court is left wondering which prospects the applicant had to justify the relief sought. The union has tried in the heads of argument to set out the prospects of success. Sadly, the law is clear that heads of argument are not pleadings and cannot be used to augment pleadings where they are found wanting See Blooming Lily Investments Pvt Ltd v Ontage Resources Pvt Ltd HC-H-1-21. What this means is that the prospects remained locked in the applicant’s head so cannot assist in the rescission of judgment case. The court would have been persuaded to excuse applicant had he been self- acting but on account of the fact that he is represented it in the court’s view that he should have complied with the law. In the result the court is satisfied that no good case for the rescission of judgment has been made out on the prospects plane.

Interests of justice and finality to litigation

A look at the facts of the case demonstrates that closure to the matter can only be reached if the merits of review are entertained. That would seal the fate of the matter at the Labour Court. It is in the interests of justice that the matter be concluded on its merits as that gives finality to litigation on the matter.

The cumulative effect of the tests discussed above tilts the scale in favour of the grant of rescission so that the case be heard on its merits in finality to litigation.

IT IS ORDERED THAT

Application for rescission of judgment be and is hereby granted with each party bearing own costs.

Kantor & Immerman. Respondent’s Legal Practitioner