Zimbabwe Motor Distributors v Shelton Nyamushamba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/611/2013
HARARE, 30 OCTOBER 2013 &
CASE NO LC/REV/H/30/2011
22 NOVEMBER 2013
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/611/2013

HARARE, 30 OCTOBER 2013 &		  CASE NO LC/REV/H/30/2011

22 NOVEMBER 2013

In the matter between:-

ZIMBABWE MOTOR DISTRIBUTORS			APPLICANT

Versus

SHELTON NYAMUSHAMBA					RESPONDENT

Before The Honourable L Kudya: Judge

For the Applicant		S.A.Tawona (Legal Practitioner)

For the Respondent		A. Muchandiona (Legal Practitioner)

KUDYA J:

This is an application for the condonation of the late filing of an application for the alteration of a judgment granted by consent between the parties.

Facts of the case are that, the Applicant (“employer”) and the Respondent (“employee”) were involved in a labour dispute which saw them on 9 July 2012 filing with the Court for endorsement a deed of settlement, where the employer promised to pay to the employee’s money on the issue that the two were arguing about on 6 September 2012.

The employer then, made the instant application to this Court urging it to vary (set aside) the consent judgment. Its argument is that, the consent order can be varied properly in terms of s 92 (c) since it was obtained by mistake or fraud.

The mistake/fraud in this case is cited as the fact that during the consent order, the employer had not yet got confirmation that the employee as at the time of the consent was already in employment with OK Zimbabwe where he was drawing a salary from. In its view the consent order was made on the backdrop of the fact that the employee was deemed to having been idle at home.

In the employer’s view registration of the full consent award by the employee would lead to unjust enrichment on his part as he has already mitigated his loss by getting the salary which he got from OK Zimbabwe, which unfortunately he will also stand to be paid for if the consent award is successfully registered with the Court.

The employee argued that, the application is irregular as it does not satisfy the tenets for such an application. The condonation test is set out in the case of Jansen vs Acavalos 1993 (1) ZLR 216(S) and the constructs of that test will be addressed cumulatively in the instant case. As at the noting of the condonation of the application, it was said to be late by four days then. The extent of the delay to that extent is nominal and therefore excusable.

On the merits, the law is clear as put in by the employee that, where a judgment is entered by consent there have to be compelling reasons to have it set aside or altered.

The employee also argues that, the compromise put award all claims that the employer could have against the employee. The further argument is that, the non confirmation of the employment status, was not a mistake common to the parties or fraud since as at the time of the compromise the employer had at the back of its mind that the employee could be employed elsewhere.

The employee therefore argues that, if the employer needed more time to get clarity about his employment status it should have sought a postponement of the case before it become part of the compromise. He also argued that, even the portion which the employer says it is not opposing, it still has not paid that and this demonstrates bad faith on its part.

It also needs to be noted that, on the day of hearing of this instant application, the Applicant was also found wanting for flouting the rules by also filing heads of argument on this application out of time. For expediency the employee finally agreed that the bar be uplifted so that merits of the condonation could be dealt with.

It is clear from a reading of the record that the same casual approach could be what resulted in the employer signing a consent order which it now seeks to renege on. The employer at all material times has had the benefit of counsel’s services and it would be improper to suggest that all it did was groping in the dark when it agreed to the consent order.

Whilst the argument of unjust enrichment can be raised, this must have been apparent to the employer at the time of the consent order hence more reason why it should not have been hasten in signing the consent order. It is clear that there was no common mistake on fraud in the case at hand and the facts of the case do not support the instant application. It should therefore fail.

IT IS ORDERED THAT

The application for late noting of an application for alteration of a judgment being without merit be and is hereby set aside.

No order as to costs.

L KUDYA

JUDGE – LABOUR COURT

Muza and Nyapadi Legal Practitioners, applicant’s legal practitioners

Danziger and Partners, respondent’s legal practitioners