Minister of Primary and Secondary Education & Anor v Lovemore Muhehi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/172/2023
HARARE, 2 JUNE 2023 23 MAY 2023
CASE NO LC/H/893/22
MINISTER OF PRIMARY AND
SECONDARY EDUCATION
1st APPLICANT
nd
---------


==============================

MINISTER OF PRIMARY AND SECONDARY EDUCATION

PUBLIC SERVICE COMMISSION

LOVEMORE MUHEHI

RESPONDENT

Before the Honourable G. Musariiri Judge:

For Applicants    Mr L. Muradzikwa, Officer

For Respondent    Mr T. Tazvitya, Attorney

MUSARIRI, J:

Applicants applied to this Court for rescission of judgement in terms of section 92C of the Labour Act Chapter 28:01 as read with Rule 43 of the Labour Court Rules S.I. 150/17. Respondent opposed the application. I shall deal with the application under sub-titles.

Default

On the 13th September 2022 this Court heard the matter at its circuit court at Mutare. The respondent (then appellant) was represented by his Attorney. The applicants (then respondent) were not represented. The court proceeded to issue a default judgement whereby it set aside respondent’s dismissal from employment and ordered applicants to reinstate him.

Explanation

The explanation for their default is set out in the applicants’ founding affidavit. It boils down to the following:

1. The matter was set for hearing on Monday 12th September 2022 at Mutare.
 2. On Sunday 11th September 2022 the parties’ representatives agreed that the matter be postponed because respondent’s attorney was attending to a family bereavement.

3. On the 12th September 2022 the Court heard the matter in the presents of both parties’ proxies.

4. The Court postponed the matter for hearing on the next day i.e. the 13th September 2022.

5(a) Applicants’ representative (based in Harare) was unable to make arrangements to travel from Harare in time for the hearing; thus.

5(b) On the 13th September 2023 the Court issued the afore-said default judgment in the absence of any appearance for applicants.

6. On the 26th September 2022 applicants filed the present application for rescission of judgment.

**Merits**

Respondent worked for Applicants as a Teacher. He was found guilty of improper association with three minors (students). He does not deny association with the minors. This is apparent from his opposing affidavit which reads

“6.4 Lastly the children got stuck at night, and contacted me in my capacity as a sports administrator. I assisted them and left them at one of their aunt’s place. I also assisted them with food. That is how a reasonable teacher would act in loco parentis.”

Appellant relied solely on the evidence by one of the minors during the disciplinary hearing,

“Knowledge: We were three, The other two girls insisted that we should go although it was getting dark. We reached Chisumbanje just before dusk. We met Mr Muhehi who bought us sadza and roast beef. Since it was now dark, Mr Muhehi offered to accompany us to Katanga where the girls wanted to see and sleep with their boyfriends. I decided to sleep at my brother’s place of residence. Since the boyfriends were former learners at our school. I was the go between for them and the girls.”

**Analysis**

The requirements for rescission of judgement were set out in the case of

Chihwayi v Atish 2007(2) ZLR 89
per Sandura JA at pp 94H-95A
“But it is clear in principle and in long standing practice of our courts two essential elements of ‘sufficient cause’ for rescission of a judgment by default are
 (i) that the party seeking relief must present a reasonable and acceptable explanation for this default; and

(ii) that on the merits such party has a bona fide defence which, prima facie, carries some prospect of success.”

The explanation for default in casu is dodgy at best. There is no affidavit by Applicant’s representative at Mutare explaining why he failed to return to Court on the day of the default. He should have appeared if only to apply for another postponement. Staying away from Court whilst they were aware of the pending hearing amounts to wilful default. Appellant’s case on the merits is also sketchy. Their witness does not say that appellant was aware of the other minors’ intent to see their boyfriends. In other words Appellant’s association with minors can be taken as innocent as he alleges.

CONCLUSION

The poor explanation for default coupled with a doubtful case on the merits does not amount to the “sufficient cause” required for rescission of a default judgement. This Court might have been persuaded to exercise its discretion in favour of rescission if appellant had a clear case on the merits. To grant rescission in these circumstances would amount to an abuse of the Court’s discretion.

Wherefore it is ordered that,

1. The application for rescission be and is hereby dismissed; and

2. Each party shall bear its own costs.

G MUSARIRI
J-U-D-G-E
--- END OCR FALLBACK ---