Minister of Youth, Indigenisation & Economic Empowerment v George Chigogo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/443/16
HELD AT HARARE 21 JUNE 2016
CASE NO
JUDGMENT NO LC/H/443/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/443/16

HELD AT HARARE 21 JUNE 2016				CASE NO LC/H/APP/150/16

& 22 JULY 2016

In the matter between:

MINISTER OF YOUTH, INDIGENISATION & ECONOMIC		Applicant

EMPOWERMENT

And

GEORGE CHIGOGO							Respondent

Before The Honourable Kudya, J

For Applicant			Miss C Sigoza (Civil Division)

For Respondent		G Sithole (|Legal Practitioner)

KUDYA J:

This is an application for condonation of late noting of rescission of judgment application at the instance of the applicant employer.  Facts giving rise to the matter are that the respondent employee made his review application to the Labour Court in a case pitting him and the applicant employer.  The employer failed to file its response to the review timeously and the matter was subsequently set down for hearing in terms of rule 22 Labour Court rules.

Employer advanced its reasons for not filing response on time but court was not persuaded by the said reasons.  It went on to allow the review in default of the filing of the response to the review on time.  This prompted the employer to apply for the rescission of the default award.  It however erred in that it did not comply with the court rules by failing to make the application on the prescribed LC1 Form.  Again the rescission application was struck off on account of the form irregularity.

Following the striking off order the employer made the instant application where it is seeking the court’s indulgence to allow it to file its rescission of judgment application out of time and now in compliance with the rules of court.

The respondent employee is opposed to the grant of the condonation relief citing the fact that in his view this is a serious abuse of court process taking into account the history of the matter and the numerous times that the employer has flouted the court rules.  He therefore in turn prays that the condonation application be dismissed for lack of merit with costs on a higher scale.

It is worth noting that when the parties made oral submissions to highlight strength of either side case the employer was adamant that it had good excuse for default being that it had erroneously filed its application without the LC1 properly filled in.  It therefore argued that it was to that extent not wilful in its default.  As regards prospects the employer argued that it had prospects on account of the fact that employee got judgment in a case where the parties were ill cited.  In particular it argued that the Ministry instead of the Minister had been cited as the respondent in the main review case.  To that extent even the default judgment obtained by employee could not be enforced as it was against a non-existent legal person.

It argued further that it is important that it be allowed to file its rescission application out of time because it would be financially prejudiced by being asked to satisfy a default judgment obtained irregularly on account of the ill citation of the parties to the matter.

In his oral response the respondent employee was adamant that in his view the present application is a serious abuse of the court process because it is fraught with inaccurate facts and there are no merits on the rescission application for which condonation is being sought.  In particular he stated that whilst the legal practitioner who filed the defective application for rescission concedes as such he takes it casually that, his sins should not be visited on the employer yet the law is clear that if a client chooses a shoddy lawyer he has to abide by the consequences of his shoddiness.  He also narrated how the default judgment was birthed and explained clearly that on the rule 22 set down date the employer was given a chance to explain its default.  Besides employer had been advised before default judgment was handed down that it was in default but chose to do nothing about it.  It thus did not come as a surprise when the court dismissed its excuse for flouting the rules all the way to the set down date.  In any event it was not correct that employer was ill cited since the records bear testimony to the fat that the employer had cited the Secretary for the Ministry who is a legal persona.

The employee went further to demonstrate the lack of candidness on the employer’s part by citing the conflicting information which it used to explain why it was out of time with its application for rescission.  The net effect of all that was that the court was faced with a party who could not be trusted to tell the truth of what happened on the matter.

When the employer was asked to respond to the issues raised by the employee vis the untruths about citation it said it had no response thus putting to paid the fact that employee was right to say instant case is an abuse of court process.  The law is clear as to what has to be proven in condonation cases and that law is apparent on heads filed of record hence does not need re-statement.  It is pertinent to note that as correctly observed by the employee the applicant got its day in court and explained its default which default did not find favourwith the court.  There cannot be any other new explanation that can come forth to persuade the court to set aside its ruling on the rule 22 decision.  To that extent it is clear that there is no good excuse given for the default by the employer and there are no prospects on the rescission explanation.  The law is clear that it helps the vigilant not the sluggard.  See Ncube v Ndebele 1992 (1) ZLR 288.  Instant case speaks of a laissez fare approach to the matter where at every turn employer is in breach of the court rules.  The court therefore cannot come to its aid.  In the result the court is satisfied that no good case for condonation has been made out by the applicant.  The application must therefore fail.

IT IS ORDERED THAT

Application for condonation for late noting of rescission of judgment application being without merit it be and is hereby dismissed with costs on an attorney and client scale.

Civil Division of the Attorney General’s Office, respondent’s legal practitioners

Mawire & Associates, respondent’s legal practitioners