Telecel Zimbabwe (Pvt) Ltd v Charles Mukwaiwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/34/2023
HARARE, 18 JANUARY 2023 &
30 JANUARY 2023
CASE NO LC/H/697/22
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/34/2023

HARARE, 18 JANUARY  2023 &			   CASE NO LC/H/697/22

30  JANUARY  2023

In the matter between:-

TELECEL ZIMBABWE (PVT) LTD		APPLICANT

CHARLES MUKWAIWA				RESPONDENT

Before the Honourable Kudya J

For the Applicant		W. Chirongoma  (Legal Practitioner)

For the Respondent		In Person

KUDYA, J:

This is an application for rescission of a default judgment entered against the applicant employee in a labour dispute pitting it and the respondent employer.

The employer’s basis for seeking rescission is that the notice of set down was served on its employee who failed to bring it timeously to the attention of the person responsible for such matters.  It states further that when the employee filed his appeal it laboured under the misapprehension that the condonation for late noting of an appeal had not been heard so it took it that the notice of appeal was not properly before the court.  On the merits and bon fides of the case it mentions that the respondent abused its fuel and says evidence was led to that effect so in its view it has a good defence on the merits.  It is settled that the success of such applications is based on the cumulative effect of the tenets of rescission of judgement. As regards the excuse whilst it should not be encouraged it is not out of the world that administration glitches can cause a party to become aware of court process later than the dates set out in the process.  It is thus a plausible excuse that the process was communicated late to the applicant.  As regards the merits it is settled that a party need to escape not on technicality but on basis that party is innocent See Air Zimbabwe  v Mnersa SC-89-04.  In the case at hand it is only after a thorough assessment of the evidence led on the matter that appellate court can conclude on the guilt or otherwise of the employee.  To that extent it would be unjust to close the door to the applicant to present its defence to the appeal mounted by the employee. The court is satisfied that the totality of the facts favour the grant of the condonation relief.

IT IS ORDERED THAT

Application for rescission of judgement being merited it be and hereby succeeds.

Each party bears own costs.

C. Kuhuni Attorneys, Applicant’s Legal Practitioners