Health Service Board v Edgars Mutaaurwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/123/2021
HARARE, 29 JUNE 2021
CASE NO. LC/H/APP/327/20
AND 27 AUGUST 2021
XREF LC/H/53/20
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/ 123/2021

HARARE, 29 JUNE 2021 					CASE NO. LC/H/APP/327/20

AND 27 AUGUST  2021					XREF LC/H/53/20

In the matter between:

HEALTH SERVICE BOARD						APPLICANT

versus

EDGARS MUTAURWA							RESPONDENT

Before The Honourable Makamure J

For the Applicant			:   Mr W. Matsika (Legal Advisor)

For the Respondent			:   Mr J. Zuze (Legal Practitioner)

MAKAMURE J:

This is an application for rescission of a default judgment granted by this court on

4 November 2020. The present application was filed on 17 November 2020. It is opposed.

2.	In order for an application for this nature to succeed the following requirements have to be addressed.

The length of the delay in applying for the rescission must be explained.

The reason for the default.

Prospects of success.

Balance of convenience.

Redstar Wholesalers v See Livingstone Mutomba SC 142/04 and cases cited therein.

3.	It was argued on behalf of the applicant that the default was not willful. The relevant

notice for attending court was not bought to the attention of the applicant’s legal

department.

4.	In support of the application is an affidavit deposed to by one Chipo Makuyana. The deponent is employed by the applicant as ‘a Registry and Information Assistant’. She confirmed receiving the notice in question on 30 October 2020. On that day she was working alone. This was due to the Covid 19 pandemic which resulted in members of staff having to work weekly shifts. She proceeds to state:

“So I received many documents relating to Disciplinary cases and I misfiled the notice of setdown in one of the disciplinary files. I did not notice the mistake and the notice of setdown was never brought to the attention of the legal department.

6.	I only realized of (sic) the misfiling when a follow up was made by the legal department the following week…”

The explanation as can be seen was not by the legal department which I believe is representing the applicant. It is important that registries which receive documents on behalf of various departments in an institution be alert. They must ensure that documents reach the relevant departments in good time in order for the appropriate action to be taken timeously. Court processes are documents which must be jealously guarded. They can cause serious prejudice to the parties, in the manner in which a matter is dealt with before a court of law, if they are not properly taken care of.

5. 	While failure to appear before a court on the appointed date is unacceptable, the reason

for the default proffered appears genuine. The times we are living, in view of the Covid pandemic, have negatively affected workplaces. Maybe had the usual number of staff members been at work, the documents would have found their way to the Legal Department timeously. A default judgment could have been avoided.

6.  	On the question of the delay or the time taken to make the application, it was thirteen

(13) days. This 13 days period does not exclude weekends. The applicant in

my view did not take a conscious decision not to seek rescission. The time taken is

therefore not in ordinate.

7.  	On the question of prospects of success, the applicant has raised the issue of willful

disobedience to a lawful order by the respondent. This is arguable. This can only be

resolved after parties have been afforded an opportunity to ventilate their respective

views.

8.	In opposition the respondent went on to argue about an automatic bar which is operating against the applicant in the main matter. The question of the bar is not before me. I will therefore not consider it. What is before me is an application for rescission of a default judgment. On the question of prospects of success the respondent raised an issue of complying with a court order.  This can only be clarified when both parties argue. A hearing has to be conducted in order for a decision to be made. This means that the respondent too raises an issue which can only be determined after parties have been heard on the merits of the matter.

9.  	In view of the foregoing the application of rescission of a judgment succeeds.

Accordingly it is ordered that:

(i)	The default judgment LC/H/ORD/655/20 granted by this court be and is hereby rescinded.

(ii)	Each party bears its own costs.

Mangwana  & Partners, Respondent’s Legal Practitioners