Anjin Investments (Pvt) Ltd v Cosmas Sunguro and Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/385/2016
HARARE, 4 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/385/2016

HARARE, 4 MARCH 2016			    CASE NO. LC/H/APP/1334/15

AND 23 JUNE 2016

In the matter between:-

ANJIN INVESTMENTS (PVT) LTD				Applicant

And

COSMAS SUNGURO AND 0THERS				Respondents

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr P. Ranchod (Legal Practitioner)

For Respondents		Mrs C Mahlangu (Legal Practitioner)

CHIDZIVA, J:

This is an application for condonation for late filing of an application for rescission of default judgment that was granted by this court on 19 March 2015.  It was granted in terms of Rule 22.  The applicant failed to give a reasonable explanation for failing to file a response to the appeal that had been filed by the respondents.

The application for rescission is well out of time and the applicant has filed an application for condonation of late filing of the application for rescission.

The grounds for this application are that

The delay in filing the application for the rescission of the default judgment was caused by technical oversights.

The degree of delay is not so inordinate as to warrant refusal of condonation.

Applicant has a real and substantial interest in seeing to the finality of the matter in the main matter.

The respondent in response submitted that the appeal should fail because,

It is not provided for in the Labour Act.

The judgment was entered in the presence of the applicant.

Applicant has no prospects of success in its application for rescission.

Section 92 (C) of the Labour Act has defined the orders or determinations that can be rescinded as follows;

“(a)	an order made in the absence of the party when it was made.

(b)	which the Labour Court is satisfied is void or was obtained by fraud or mistake common to the parties.

(c)	in order to correct any patent error.”

The judgment in this case was entered in the presence of the applicant which means that it does not fall under the circumstances provided by the act.

However Ndou J in the case of Chahwanda v Dube & Anor 2007 (1) ZLR 19 on default judgments also had this to say

“The question is whether this court is now functus officio.  We are dealing here with an order granted by default by this court and executed.  The judgment was not given on the merits, so it cannot be final.  It is a general principle that once a court has duly pronounced a final judgment it has itself no authority to correct, alter or supplement it.  The court becomes functus officio.  Its jurisdiction in the case having been fully and finally exercised its authority over the subject matter ceases ..”

In view of this therefore the fact that the judgment was entered in applicant’s presence does not mean that it is not a default judgment.  The judgment was not given on the merits of the case and therefore it cannot be final.

It is also this court’s view that the applicant has prospects of success.

The dismissals came after this court had issued a Disposal Order when the respondents engaged in a Job Collection.

The applicant has also pointed out that the respondent were not properly cited and it is also not clear as to whether Cosmas Sunguro had the locus standi to act on behalf of all the respondents.

The case of Dalny Mine v Banda has stated that labour matters should not be decided on technicalities. This matter can only be brought to finality once the main matter has been decided on merits.

In view of the foregoing therefore this court orders as follows;

The application for condonation for late filing of the application for rescission be and is hereby granted.

Each party shall bear own costs.

Hussein Ranchod & Company, applicant’s legal practitioners

Munyaradzi Gwisai & Partners, respondent’s legal practitioners