Judgment record
Reagan Mashavave v Agence France Presse (AFP)
[2021] ZWLC 164LC/H/164/20212021
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### Preamble IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/164/2021 HARARE, 23 JUNE, 2021 CASE NO. LC/H/APP/285/20 --------- IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/164/2021 HARARE, 23 JUNE, 2021 CASE NO. LC/H/APP/285/20 AND 08 OCTOBER, 2021 In the matter between: REAGAN MASHAVAVE Applicant Versus AGENCE FRANCE PRESSE (AFP) Respondent Before The Honourable Kachambwa J; For Applicant: Mr T Kabuya (Legal Practitioner) For Respondent: Mrs K.P Kaseke (Legal Practitioner) KACHAMBWA J: This is an opposed application for condonation for late filing of an application for rescission of judgment. The application is in terms of Rule 32 of the Labour Court Rules, 2017. The facts of the case are that on the 7th of November 2019, the parties appeared in court on an application for review. That application was struck for two reasons which are; 1. Failure to prove when the application was served on the other party. 2. Failure to file at all, proof of service of the application, late alone proof that service was done within the required five (5) days. Nine months after the application for condonation was struck off the applicant has applied for this condonation. The application was opposed. The reasons for opposing the application are not succinctly addressed but points in limine were raised as follows; 1. There is no default judgment to rescind. 2. The matter does not fall under rule 32. It was abandoned in terms of Practice Direction No. 3 of 2013. 3. There was no mistake common to the parties necessitating rescission. 4. The applicant is barred from seeking redress because he failed to pay the taxed costs of the previous application. Despite that these points were raised in the supporting affidavit the applicant did not address them in his heads of argument. It is disappointing that the parties were not helpful in helping the court to make an informed decision. Infact the applicant was clearly not sure of how he could deal with the problem/case. It is indeed given as one of the reasons for the delay in making the application. What is not denied is admitted and so should the application not end here?. The applicant is quiet on the issues raised by the respondent. In addition to the points in limine raised by the respondent the court mero motu, raised the point that a copy of the intended application for rescission was not filed, that it should be filed to assist the court in assessing prospects of success in that matter. On the issue of default judgment the applicant admitted that it was not a default judgment but claimed that it was a judgment made due to a mistake common to the court, the respondent and the applicant. He said that the common mistake was the failure by all parties to see that they could not strike out the application, that that was a wrong procedure. Nevertheless the applicant appeared not alive to sections 92 C of the Labour Act Chapter 28:01 (the Act) or if he was he did not make it the basis of his application. The section says that the court may rescind any determination or order; “(1) (a) --- (b) which the Labour court is satisfied is void or was obtained by fraud or mistake common to the parties.” The applicant chose Rule 32 of the Labour court Rules. In terms of the Act rescission is not only on default judgment. Therefore the respondent’s argument was flawed. The applicant was not able to point to the correct law that applied to his case. If the applicant had filed a copy of the intended application it may have helped matters as he could have been forced to find the applicable law. The applicant argued that in terms of the rules of this court the court should have instructed the registrar to deal with the matter as abandoned in terms of Rule 46. The applicant said that he had approached the court for a direction in terms of Rule 32 which reads; “At any time before or during the hearing of a matter a Judge or the Court may- (a) direct, authorize or condone a departure from any of these rules, including an extension of any period specified therein, where the Judge or Court is satisfied that the departure is required in the interests of justice, fairness and equity. (b) give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to the Judge of the Court to be just, expedient and equitable” As for Practice Direction No. 3 of 2013 the applicant said that it did not apply to the Labour court because it is not a superior court in terms of section 172 of the Constitution which describes it as a court of record. Rule 36 was said not to apply also. He said that if rule 32 did not apply he would be left without a remedy. Consequently he had approached the court for a directive in terms of rule 32. It must be said though that the applicant faintly argued that the application was proper because the court’s decision was made due to a mistake common to the parties and the court. The mistake was said to be on the procedure and on the fact that there was no service because papers were found later to prove service. They were found after the decision was made. On the issue raised by the court that the applicant should have filed the draft application for rescission the applicant said that that was not provided in the rules. Consequently there was no legal requirement to file it. The present case was said to be peculiar hence the reliance on rule 32 so as for the court to give a direction as to how to proceed! On the other hand, the respondent was very brief. It said that since the matter was struck off there was no default judgment to rescind. That the matter fell under Practice Direction No.3 of 2013. Rule 32 did not apply. It was not a deemed abandoned matter either. That the applicant had adopted a wrong procedure and the application should be dismissed with costs on a legal practitioner and client scale, de bonis propriis. Now where are we?. One can write a thesis on this matter by following all the arguments, cases and law referenced to. However it is also possible to decomplicate the matter. The simple question is whether this application is properly before the court. If Practice Direction No.3 applies it is not. Secondly Rule 32 is for a matter that is properly before the court and the court gives direction on how the matter is to proceed. In other words a party cannot improperly bring a matter before the court and ask the court on how to proceed. The decision is not a default judgment It is true that the decision that the applicant wants to have rescinded is not a default decision. The applicant admits so but nevertheless insists that it is rescindable for being a decision made due to a common mistake of the parties and the court. The respondent is clearly mistaken that only a default decision is one that can be rescinded. Section 92C provides three situations when the court may rescind its own decision. Therefore the respondent’s point does not hold water. The applicant cannot be barred for this reason. He may be barred for other reasons. Does Rule 32 apply? Rule 32 says- “At any time before or during the hearing of a matter a Judge or the Court may- (a) direct, authorize or condone a departure from any of these rules, including an extension of any period specified therein, where the Judge or Court is satisfied that the departure is required in the interests of justice, fairness and equity. (b) give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to the Judge of the Court to be just, expedient and equitable” There is a difference between giving legal advice and a direction on how to proceed. In this case the applicant is trying to ask the court to give the applicant legal advise on how to properly bring his matter before the court. That cannot be. The court may only adjudicate on whether the matter is properly before the court or not. In any case the applicant has not applied for direction. It has applied for condonation. The parties are mixing up the argument. The issue of rescission of judgment was not properly articulated. In fact this case is a classical case of how lawyers may not assist the court. The parties’ argument is actually that the intended rescission is not possible and therefore the application for condonation should not be allowed because it is being done for an unachievable end. There are no prospects of success in the intended application for rescission. The application for condonation should fail because there are no prospects of success shown in the intended final action. There is nothing to consider on file. That is why a copy of the intended appeal should also be filed. It is filed to let the court decide on the prospects of success in that intended action. This filing must be done in the same vein as is required for condonation as per Rule 22 (2). Rule 32 does not apply. One cannot bring a matter before the court in order to seek legal advice from the court. DOES PRACTICE DIRECTION NO.3 OF 2013 APPLY TO THE LABOUR COURT? The applicant said that the Practice Direction does not apply because the Labour Court is not a Superior Court but a court of record. He argued that the Constitution of Zimbabwe Act, 2013, does not refer to it as a superior court but as a court of record. This argument is of no relevance to the matter before the court. The court is not there to decide as to which procedure the applicant should adopt. That is his choice. The court should not be misled to advise on that. It should not be drawn into deciding whether the Labour Court is a superior court or not. It is immaterial to the points in limine. By the same token all the arguments on which procedure the applicant should follow are not relevant. The court should not be misled into advising on that. The filing of a copy of the application for rescission It is the practice of the courts that when a party is applying for condonation and for extension of time in which to do something the applicant must file a copy of the intended eventual action. This is so so that the court is able to consider the prospects of success in that intended action. Failure to file such document is fatal to the application for condonation. Conclusion The applicant did not have to apply for condonation under rule 32 at all. It could apply for condonation in the normal process Rule 32 does not apply . The applicant cannot also bring a matter before the court in order to seek legal advice through the back door by invoking Rule 32. Rescission of judgment is not necessarily applied for in default judgments only. Section 92C of the Labour Act gives more situation where the court may rescind its decision. The respondent’s point in limine was not correct. The applicant must file a copy of the intended application for rescission. Failure to do so is fatal to the application. The application is not properly before the court because the applicant has invoked an incorrect rule and has failed to file a copy of the intended application. Order It is ordered that the application be and is hereby struck off with costs on the ordinary scale.