Zimbabwe Open University v Perpetual Ndekwere

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/75/16
HELD AT HARARE 1 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/75/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/75/16

HELD AT HARARE 1 FEBRUARY 2016			            CASE NO LC/H/APP/943/15

& 4 MARCH 2016

In the matter between:

ZIMBABWE OPEN UNIVERSITY			Appellant

And

PERPETUAL NDEKWERE				Respondent

Before The Honourable F C Maxwell, Judge

For Appellant			Mr G Jakuosi (Legal Practitioner)

For Respondent		Mr T Zhuwarara (Advocate)

MAXWELL, J:

At the hearing of this matter I upheld a point in limine and dismissed the application with costs.  I indicated that the reasons for my decision would follow.  These are they.

Applicant filed an application for condonation of late filing of an application for rescission of a default order and an application for rescission of a default order.  On 3 June 2015 this court had granted a chamber application in terms of Rule 19 (3) (a) of S.I. 59/2006 and dismissed applicant’s appeal with no order as to costs.  The present application was filed on 31 July 2015.  Respondent objected to the application on the basis that no rule permits the filing of a hybrid application.  Respondent’s counsel submitted that it was presumptuous for applicant to adopt a view that condonation is automatic and therefore the application for rescission should be dealt with at the same time.  I agree with counsel for respondent.

I am of the view that the application for rescission of the default order could only be properly made after the granting of condonation of its late filing.  As a result, it is improper to have an application for rescission of default judgment before the court well knowing that the application was filed out of time.  As submitted for respondent such an attitude  demonstrates that applicant believes condonation is automatic. That is an erroneous belief.  As stated in Paul Gary Friendship v Cargo Carriers Ltd & Anor SC/13.

“condonation is an indulgence which may be granted at the discretion of the court.  It is not a right obtainable on demand.  The applicant must satisfy the court/judge that there are compelling circumstances which would justify a finding in his favour.”

(Underlining for emphasis)

In Bafana Sibanda v Josiah Ntini SC 74/2002 MALABA JA  (as he then was) clearly spells out that where an application for rescission of judgment is filed out of time, it can only be considered after an application for condonation has been made and granted.  In my view the two cannot be considered at the same time.

Counsel for applicant referred this court to the case of Gweru Water Workers’ Committee v City of Gweru SC 59/13 as authority that since the Supreme Court entertained three applications at the same time, this court can entertain combined applications.  I am not persuaded by that argument.  As stated for respondent, the example ignores the fact that the Supreme Court is a court of inherent jurisdiction whilst this court is a creature of statute.  Applicant cited the case of Paul Gary Friendship v Cargo Carriers Ltd & Anor (supra) in heads of argument.  It should have taken a cue from the facts outlined therein.  On page 2 of the cyclostyled judgment it is clearly stated that the applicant filed two applications in the High Court.  One was for condonation of failure by the applicant to file an application for rescission of judgment within the stipulated time.  The other was an application form rescission of the said judgment.  Both matters were dealt with before the court on the same day but two records were before the court.  After dismissing the application for condonation the application for rescission was also dismissed as the Learned Judge of Appeal stated “dependent as it was on the success of the application for condonation…”

Applicant has not presented to the court a prospect of dealing with the application for condonation separately.  As the draft order sought demonstrates, both applications were to be dealt with at the same time, the court could not be tasked with fishing out those aspects of the application that pertain to condonation, deal with them, make a decision, and if necessary then proceed to consider the aspects on rescission of the default order.    In any event it is the practice of this court that an application for condonation is placed before a different judge from the one who deals with an application for rescission.  This is more so considering that the issues to be considered are similar and therefore once one grants condonation it is unlikely that they would subsequently deny rescission.  A different person however can arrive at a different conclusion.

For the above reasons I dismissed the application with costs.

Dube, Manikai & Hwacha, appellant’s legal practitioners

Chambati, Mataka & Makonese Attorneys,  respondent’s legal practitioners