Courage Viriri v Scanlink (Pvt) Ltd & Julita Likwesa N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/09/2021
HARARE, 19 NOVEMBER 2020
CASE NO LC/H/APP/521/19
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IN THE LABOUR COURT OF ZIMBABWE	   	JUDGMENT NO LC/H/09/2021

HARARE, 19 NOVEMBER 2020				CASE NO LC/H/APP/521/19

AND  12 MARCH 2021

In the matter between: -

COURAGE VIRIRI						APPLICANT

And

SCANLINK (PVT) LTD					1st RESPONDENT

And

JULITA LIKWESA N.O.					2nd RESPONDENT

Before the Honourable Manyangadze  J

For the Applicant		Mr M.G. Bumbira (Legal Practitioner)

Ms F. Gororo (Legal Practitioner)

For the Respondent		Mrs J. Zindi  (Legal Practitioner)

MANYANGADZE  J:

After hearing submissions from both parties, I delivered an ex tempore judgment in which I dismissed the application.  These are the full reasons for the ex tempore judgment.

This is an application for rescission of judgment. It arises from a judgment handed down by this court (per MAKAMURE J) on 9 August 2019, in terms of which an application for confirmation of a draft ruling made by the 2nd respondent was dismissed.

The application for rescission of judgment has been made in terms of section 92 C (1) of the Labour Act (Cap 28:01) (the Act) which provides for rescission on 3 grounds, viz;

where the determination or order was made in the absence of the party against whom it was made.

where the determination or order is void or was obtained by fraud or a mistake common to the parties.

in order to correct any patent error.

A reading of the applicant’s heads of argument, coupled with the oral submissions made on his behalf, indicates that the application is made in terms of section 92 C(1)(a), which provides for rescission where the judgment was granted in the absence of the party against whom it was made. This is clear from averments in paragraphs 1, 4, 7 and 8 of the applicant’s heads of argument.

It must be pointed out from the outset, that this application is peculiar in that the applicant was not one of the parties cited in the papers placed before the court which dealt with the application for confirmation of a draft ruling.  Before that court was the 2nd respondent (as applicant) and the 1st respondent (as respondent). So, of the parties who appeared before the court, as cited in the application for confirmation, no one was in default.  These were the parties who were duly served with the notice of set down, and did not default in response to it.  In this context the judgment in question cannot be described as a default judgment, in the normal or ordinary sense of that term. The applicant was out of the picture and therefore cannot be described as having been in default of the notice of set down.

What however, the applicant has averred is that he was denied an opportunity to be heard, in spite of his having evinced an intention to participate in the confirmation proceedings.  He made it clear he desired to be heard by filing an application for joinder, under case No.  LC/H/APP/18/18. This fact was brought to the attention of the court on the set down date, that is, the date of the hearing of the application for confirmation.  According to the applicant, the court did not entertain his application for joinder on the basis that the application was not properly before it.  The court insisted on going ahead with the substantive application for confirmation.

This averment clearly appears from paragraph 7 of the applicant’s heads of argument.  In paragraph 9 of his founding affidavit, the applicant avers that the application for joinder was never placed before the court.

This aspect was persisted with in oral submissions made during the hearing of the matter.

The 1st respondent, in opposing the application for rescission, averred that the applicant

chose not to be heard in the confirmation proceedings, by withdrawing his application for joinder.

A perusal of the record of the confirmation proceedings in question shows that the applicant, through his legal practitioner, indeed withdrew the application for joinder.  What is recorded in that record is instructive. It shows that the court stood down the matter, indicating that the application for confirmation could not be heard before dealing with the application for joinder.  Parties went to the Registrar’s office. When the court session was reconvened, the applicant’s legal practitioner indicated that he was withdrawing the application for joinder, and was excused from further attendance.

Thereafter, the application for confirmation proceeded as scheduled. The judge’s notes are clear on this.

When this was brought to the attention of counsel for the applicant, (in the instant case) no meaningful explanation was made to clarify the variance in the applicant’s averments and what transpired in court, as recorded by the presiding judge.

In light of this, there is no justifiable basis on which the applicant can persist with his averment that the matter was heard in his absence.  The Drum City (Pvt) Ltd v Brenda Garundzo  - SC 57/18 case, on which the applicant mainly relied, indicates that the joinder of an employee is not made against his/her wishes. This position is clear from page 7, paragraph [15] of the cyclostyled judgment, wherein is stated;

“…one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard…”  (underlining added)

This is a case where the applicant clearly chose not to be heard.  It is only when the decision went against him that he resorted to this somewhat unusual application for rescission of judgment. The crux of the matter is whether the applicant was afforded an opportunity to be heard. As already indicated, he was afforded that opportunity. He chose not to be heard.  As indicated above, he followed up his oral submission with a formal notice of withdrawal which is filed of record.  On this basis alone, the application cannot succeed. In light of this, it is the court’s considered view that no justifiable basis has been laid down for rescission of judgment. It cannot succeed under the circumstances.

All in all, the application for rescission of judgment is misplaced and cannot be upheld.

On the question of costs, the court is of the considered view that the applicant endeavoured to pursue a remedy provided for in the Act, however misplaced that endeavour was. The court is reluctant to have him visited with costs on the punitive scale, though it is of the view that it is a borderline case for the award of such costs.

In the result, it is ordered that;

The application for rescission of judgment be and is hereby dismissed.

The applicant bears the respondents’ costs.

J. Mambara & Partners, applicant’s legal practitioners

Mtetwa & Nyambirai Legal Practitioners, 1st respondent’s legal practitioners