African Sun Limited v Maureen Mommsen

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/ORD/H/467/2013
HARARE 18TH FEBRUARY 2013 &
CASE NO LC/ORD/H/33/2012
25 OCTOBER 2013
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IN THE LABOUR COURT OF ZIMBABWE  JUDGMENT NO LC/ORD/H/467/2013

HARARE 18TH FEBRUARY 2013 &		   CASE NO LC/ORD/H/33/2012

25 OCTOBER 2013

In the matter between:-

AFRICAN SUN LIMITED				APPLICANT

Versus

MAUREEN MOMMSEN					RESPONDENT

Before The Honourable L Hove	:	Judge

(IN CHAMBERS)

HOVE J:

This is an application for leave to appeal to the Supreme Court against an order of this court. The background of the matter is that:

On 18 February 2013, the court considered an application for rescission of judgment which had been placed before it in chambers.

The court dismissed the application in an order dated 22 March 2013.

The order reads as follows:

“The reason given for the failure to attend court is not a reasonable one, therefore the application for rescission of judgment is hereby denied.”

The applicant seeks to appeal against that order.

In its written submissions, the applicant is seeking to sway the court into re-opening the case on factual issues, i.e. the factual circumstances that led to the applicant’s default.

Appeals to the Supreme Court from decisions of the Labour Court are on points of law. This is by operation of law and it is trite. See section 92F (1) of the Labour Act [Cap 28:01] (“the Act”).

It has not been alleged that in finding that the applicant’s reasons for default, the court’s conclusion of facts were so grossly unreasonable so as to amount to a misdirection on a point of law.

The applicant is thus seeking to re-open the factual circumstances of its default. This, it is not permitted to do in terms of law.

The court can dismiss, as I did, an application for rescission without looking into the merits of the case where it is satisfied that the applicant’s reasons for default are unreasonable.

See the case of Bosman Transport Workers Committee & Ors v Piet Bosman Transport (Pty)Ltd 1980 (4) SA 794 at page 799 D–E. The court made the following observation and finding:

“… where there has been a flagrant breach of the rules of this court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and indeed, in respect of other periods of delay, no explanation at all, the application should …   not be granted what ever the prospects of success maybe.”

It is for the above reasons that I am of the view that the applicant’s appeal against my decision to refuse to rescind the earlier judgment enjoys no reasonable prospects of success. The application must therefore fail.

In the result, the application is dismissed.

HOVE J

JUDGE – LABOUR COURT

Dube, Manikai & Hwacha, applicant’s legal practitioners