Tinago Muchena v Guard Alert Security (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/248/23
HELD IN HARARE, 25TH JULY, 2023
CASE NO. LC/H/925/22
AND 31 AUGUST 2023
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/248/23 HELD IN HARARE, 25TH JULY, 2023		CASE NO. LC/H/925/22 AND 31 AUGUST 2023

TINAGO MUCHENA	APPLICANT

GUARD ALERT SECURITY (PVT) LTD.	RESPONDENT

Before The Honourable G. Musariri:	Judge

For Appellant:	Mr T. Muchena, Attorney For Respondent: Mr J. Mukarata, Director

MUSARIRI, J:

On the 23rd March 2022 at Harare this Court dismissed applicant’s appeal against the dismissal from employment by respondent. On the 18th October 2022 applicant filed the present application for condonation and rescission of judgment. The application is made in terms of Rule 40 of the Labour Court Rules S.I. 150/17. Rule 40 provides as follows;

“An application for rescission or alteration of a determination, or order or judgement of the Court or Judge on any grounds specified in the Act shall be made within twenty-one days from the date after the party has had knowledge of the determination, order or judgment;

Provided that unless the contrary is proven, the party shall be presumed to have had knowledge of the judgment within two days after the date thereof.”

Apparently the present application was not made within the prescribed period as it was file about six months after the impugned judgment. In his founding affidavit applicant declaimed thus,

“2.   The Honourable Labour Court heard my case on 16 March and 23 March without me attending those two proceedings not because of my fault.

JUDGEMENT NO LC-H-2472023

I was willingly and prepared to attend the two Court proceedings but the Deputy Sheriff failed to deliver at my correct address, Labour Court notification for me to attend court proceedings. The time I visited to office of registry to find out as to when my case was going to be heard by the Labour Court, I was told that there is already a judgment in your file.

I freed (sic) to seek reasonable explanation but music sang by those attending to my issue was difficult to dance.

Final their explanation left me with no option except to apply for rescission of this judgment of ref LC/H/ORD/199/22”.

Respondent’s opposing affidavit countered as follows,

“1.	The applicant became aware of the judgment on the 25th August 2022 as per his confirmation.

The applicant responded on the 18th October, 2022 as per his confirmation.

This was far out of time in terms of the Labour Court rules.

The applicant’s case has no merits at all	”

Analysis

Applicant relied on the case of Forestry Commission v Moyo 1997(1) ZLR 254 (S) where GUBBAY CJ, as he then was, laid down the requirements for condonation thus,

“(a)	that the delay involved was not inordinate, having regard to the circumstances of the case;

that there is a reasonable explanation for the delay;

that the prospects of success should the application be granted are good; and

the possible prejudice to the other party should the application be granted.”

Applicant’s founding affidavit does not explain the reason for the delay in applying for rescission. In his written submission he only says,

“The applications delay of 39 days is not inordinate. …”

Even the submission does not explain the reason for the delay.

Again, wholly absent is a demonstration of the prospects of success of the intended appeal. The Forestry Commission case which applicant relied on requires a show of the prospects of success. Sadly applicant did not make good use of the case he relied on. He failed to meet any of the requirements for condonation.

JUDGEMENT NO LC-H-248-2023

Wherefore it is ordered that,

The application for condonation and rescission of judgment be and is hereby dismissed; and

Each party shall bear its own costs.

J U D G E