Osman Nokwara v T. Pasipamire N.O. & 4 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/72/2023
HARARE, 28 FEBRUARY 2023 &
06 MARCH 2023
CASE NO LC/H/941/22
X-REF LC/H/373/22
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/72/2023

HARARE, 28 FEBRUARY 2023 &		              CASE NO LC/H/941/22

06 MARCH 2023				              X-REF       LC/H/373/22

OSMAN NOKWARA				APPLICANT

T. PASIPAMIRE  N.O.				1st RESPONDENT

D. MAENZANISE N.O.				2nd RESPONDENT

D. HIKWA N.O.					3rd RESPONDENT

ZIMBABWE LAND COMMISSION		4th RESPONDENT

P. MASWIRE N.O.					5th RESPONDENT

Before the Honourable  G. Musariri,  Judge:

For the Applicant			Mr K.T. Mkanganwi, Attorney

For the Respondent			Mr D. Machingauta, Officer

MUSARIRI J

Applicant applied to this Court for the rescission of default judgment in terms of section 92(1)a of the Labour Act Chapter 28:01 as read with Rule 40 of the Labour Court Rules S.I.  150/17.  Respondents opposed the application.  I shall deal with the matter under sub-titles.

DEFAULT

The default judgment was issued on the 8th September 2022.  There was no appearance for applicant either in person or by proxy. As a result, his application for review was dismissed for want of prosecution.  It behoves applicant to firstly give a satisfactory explanation for his default.

The founding affidavit deposed by his attorney dealt with the default thus,

“15. It is my submission that Applicant was not in wilful default…….As I stated earlier the matter was set down for hearing on the 8th September 2022 however, I found myself double booked at the material time as I was also appearing at the High Court under case No. HC 5398/22…..I called my college (sic)  Ms Makina from our offices who was also appearing at the Labour Court under case no LC/H/481/22 to stand the matter down from the role (sic) on my behalf.  However by the time I engaged her the court she was appearing before was already sitting and as a  result she could not excuse herself to go and stand the matter down.  The matter was subsequently heard and the application for review was dismissed for want of prosecution.

This rather turgid explanation glosses over a critical issue. The High Court case she referred to was set down by a notice dated 31st August 2022. Therefore, the attorney needed to explain what she did between the 31st August 2022 and the 8th September 2022 to deal with the double-date.  No explanation was given for this critical period.  What we have are last minute efforts on the date of hearing to have the matter stood down.  I consider such explanation for the default as unsatisfactory.

MERITS

The founding affidavit refers to the dismissed matter as LC/H/382/22.  Therefore, it also behove applicant to show that he had reasonable prospects of success in that matter. The founding affidavit dealt with the prospects from its paragraph 16 through to paragraph 21.  Surprisingly the paragraphs do not set out what was to be reviewed. The equally important grounds for review are not spelt out nor is the relief sought mentioned.  It boggles the mind how the Court is supposed to assess the prospects of success.  Pressed on this point applicant referred to the record LC/H/3782/22.  Unfortunately for him it is not for the Court to find the file, read the contents and make a case for him. He was required to make his own case in his founding affidavit.  He could not be bothered to do so and as a result he reaps the consequence.

CONCLUSION

The following quotation is opposite,

“In the event of flagrant breach of the rules, the indulgence of condonation may be refused, no matter what the merits of the application are.  This applies even where the blame lies solely with the party’s legal practitioner.”

Ref:   Viking v Blue Bells 1998(2) ZLR  249(S) 249F.

The remarks are equally applicable to an application for rescission.   The explanation for the default (breach) in casu is unsatisfactory and in addition no effort was made to show prospects of success on the merits.

Wherefore it is ordered that

The application for rescission be and is hereby dismissed; and

Applicant shall pay respondent’s costs of suit.

G. MUSARIRI

J-U-D-G-E