Kadoma Textiles (Pvt) Ltd v Davies Mazambara & 8 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/668/2014
HARARE 16 SEPTEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/668/2014

HARARE 16 SEPTEMBER 2014  				CASE NO. LC/H/APP/166/14

AND 10 OCTOBER 2014

KADOMA TEXTILES					Applicant

(PVT) LTD

DAVIES MAZAMBARA					Respondents

& 8 OTHERS

Before The Honourable G. Musariri, Judge

For Applicant 		Mr. G. Jakuosi, Attorney

For Respondent		Mr. K. Gama, Attorney

MUSARIRI, J:

Applicant filed a combined application for condonation and rescission of judgment.  Respondents opposed the application.  The basis of the application is set out in the Founding Affidavit made by Mr. Bruce Dorward.

Condonation

This relates to the late filing of the application for rescission.

Delay: The judgment sought to be rescinded was granted on 2nd May 2013.  This application is date-stamped 28th May 2014.  The extent of the delay is 12 months, that is one (1) year.  That is clearly an inordinate delay in seeking rescission.  A good explanation needs be given for such delay.  The explanation is captured is the Founding Affidavit as follows,

“18. The reason (s) for the delay in filing the application for rescission is that the Applicant, on the strength of Mr. Makings letter, was under the impression that the letter requesting for the setting  aside of the judgment granted in error, would suffice as an Application for rescission.  This impression was reinforced by the fact that the Registrar neither objected to such letter being filed nor, if she did, informed it of such objection.”

(The underlining is for emphasis)

The explanation amounts to an attempt to shift blame to the Registrar of this Court.  It is Applicant who failed to apply for condonation timeously and not the Registrar.

It is not the duty of the Registrar to advise parties on the provisions of the Rules of this Court on rescission.  Moreso in cases where the parties were legally represented as the Applicant.  It is absurd for Applicant to hide behind a letter which sought rescission whereas the Rules require an application for rescission.   I am persuaded to agree with Respondents where their Response countered that,

“13 (a) It is incredible that Applicant believes that a mere letter metamorphoses into a “court application once the Registrar (accepts) such letter.”

(b) …

(c) If people do not know where a letter is appropriate and where an application is so, they have themselves to blame if the court dismisses their application for rescission.”

Prospects

Having found that the extent of delay is inordinate.  Having further found that the explanation therefor is, to put it mildly, “incredible” it therefore follows that there is no way that Applicant’s prospects of success (if any) would save the application.  The circumstances suggest that the default was willful.

Wherefore it is ordered,

That the application for condonation of late filing of an application for rescission of judgment is hereby dismissed; and

That Applicant shall pay one-half of Respondents’ costs.

G. MUSARIRI

J  U D G E