Rusike Primary School V Margret Musoni

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/674/2013
HARARE ON 19th NOVEMBER, 2013
CASE NO. LC/H/549/2012
AND 6TH DECEMBER, 2013
JUDGMENT NO. LC/H/674/2013
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/674/2013

HARARE ON 19th NOVEMBER, 2013			CASE NO. LC/H/549/2012

AND 6TH DECEMBER, 2013

In the matter between

RUSIKE PRIMARY SCHOOL	     			–	Applicant

And

MARGRET MUSONI							–	Respondent

Before The Honourable R. Manyangadze, J.

(IN CHAMBERS)

MANYANGADZE, J.

This is an application for the reinstatement of appeal, which appeal was dismissed on 13 May 2013.

The record shows that the appeal was dismissed as a consequence of Appellant’s default.  It was a default judgment.

In essence, what Applicant is seeking is a rescission of the default judgment.  It is not clear why Applicant’s legal practitioners have decided to call it an application for reinstatement, as if they are dealing with a matter that was struck off the roll.  This is a matter that was dismissed, and not simply struck off the roll.

The Applicant should have filed an application for rescission of the default judgment.  However, a perusal of the Applicant’s Founding Affidavit shows all the elements of an application for rescission of a default judgment, such as reasons for the default and prospects of success.  It has only been wrongly captioned as an application for reinstatement of appeal.  Thus, dismissing the application for reinstatement and directing that a proper application for rescission be filed would unduly prolong the proceedings.

Moreover, a perusal of the Notice of Response filed on 14 August 2013, shows that Respondent is not opposed to the “reinstatement” sought by the Applicant.

It appears both parties are desirous of having the appeal disposed of on the merits.  There is therefore no prejudice in treating the application as one for rescission of judgment, and granting it as such.  In the result, it is ordered that:

The default judgment granted on 13 May 2013 under case No. LC/H/549/12 be and is hereby rescinded.

Each party to bear its own costs.

BY THE JUDGE