Leopard Rock Hotel v George Nyagondore

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/39/2013
HARARE, 04 OCTOBER AND
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE                 JUDGMENT NO. LC/MC/39/2013

HARARE, 04 OCTOBER AND     	      	   	                CASE NO. LC/MC/44/2013

08 NOVEMBER 2013

In the matter between

LEOPARD ROCK HOTEL						Applicant

And

GEORGE NYAGONDORE						Respondent

Before The Honourable P. Muzofa; Judge

(IN CHAMBERS)

MUZOFA J.;

This is an application for rescission of a judgment entered by consent of both parties on the 1st of October 2012.

After the consent judgment was entered Respondent was reinstated and was to be paid some stated monies as damages.  However on the 21st of November 2012 Respondent resigned from Applicant’s employ.  Respondent stated the reason for his resignation as that he was running a casino which he had been running since his dismissal.  Upon receipt of the resignation letter Applicant was of the view that the reason for resignation showed that Respondent had  found alternative employment.  Therefore he was not entitled to reinstatement or even the damages in the amount he was promised.  According to the Applicant the consent was fraudulently entered into, this Court was urged to rescind the consent judgment.

Counsel for the Applicant also noted that they did not apply for condonation for the late noting of the application since there was no need for such an application if a judgment was obtained by fraud as obtained in this case. However she said out of a abundance of caution they had filed an application for condonation for late noting of the application.  The said application was not filed of record, and counsel did not have a copy of the application.

On behalf of the Respondent it was submitted that the application for rescission was not properly before the Court since it was filed out of time.  The applicant should properly file for condonation for the late noting of the application.  On the application for rescission it was submitted for the Respondent that there was no fraud.  The respondent was not gainfully employed, he had only applied for a Casino licence which he received a few days after the consent judgment was entered into.

Before addressing the application, I intend to deal with the issue on whether the application is properly before the Court.

In terms of Section 92C (1) (b) of the Labour Court Act, the Court can, on application rescind or may vary any determination or order –

b) which the Labour Court is satisfied is void or was obtained by fraud or a mistake common to the parties, and such applications in terms of Rule 33 of the Labour Court Rules.

“… shall be made within thirty days from the date the applicant became aware of the determination, order or judgment”.

In casu the resignation was submitted to the Applicant in November 2012.  The application for rescission of judgment was filed with the Registrar of the Labour Court on the 19th of July 2013.  This was about eight months’ delay, and no application for condonation has been made.  Counsel for the Applicant indicated they filed the application but there was no copy of the application in the record neither did she have a copy of the application they lodged with this Court.  I donot believe any application was lodged in the absence of such proof.  In any event counsel for the Applicant was of the view that there was no need for an application for condonation for the late noting of the application for rescission in view of the Chihwayi Enterprises (Pvt) Ltd v Atish Investments Pvt Ltd 2007 (2) ZLR 89 (S) case.  In the Chihwayi case the court noted that where a judgment was improperly or fraudulently obtained it is not a judgment granted under the rules of the Court therefore there is no need to seek condonation for delay in applying for rescission.

In this case I donot think there is a clear fraud.  In any event Section 92 C (1)(b) provides that where the Court is satisfied (my emphasis) that the order was obtained by fraud.  In this case it is only in the counsel for Applicant’s opinion that the judgment was obtained by fraudulent means.  The Court has not made a finding on this aspect.  Counsel for the Applicant was aware that the application for rescission of judgment was opposed.  The main issue being that the judgment by consent was not obtained fraudulently.  So clearly the Applicants were aware that the issue of the fraudulent consent judgment was no longer an accepted point.  I believe as a diligent practitioner counsel for Applicant should have applied for condonation for the late noting of the application for rescission of the consent judgment.  However since the matter is now before the Court this Court will deal with it.

I will turn to deal with the application for rescission of the consent judgment.  As submitted by counsel for the Applicant a judgment entered into by consent can be rescinded Georgias & Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488 (S).  The factors to be considered are the reasonableness of the explanation for the circumstances in which the consent was entered, the bona fides of the application and the bona fides of the defence on the merits which prima facie carries some prospect of success.

The explanation.

The Applicant’s explanation for the application for rescission is that on 1 October 2012 it entered into a consent judgment.  Applicant reinstated the Respondent.  On 21 November 2012 Respondent tendered his resignation for the reason that he was running a casino which he had been running since his dismissal.  According to the Applicant Respondent should not have been reinstated and back pay should never have been made as Respondent was gainfully employed elsewhere.  Respondent had terminated the contract of employment when he set up his own business and started running the casino.  Therefore the Respondent had fraudulently withheld this information from the Applicant and the Court to obtain an order for reinstatement.  It was submitted that the judgment by consent was therefore obtained by fraud.

The Respondent’s representative denied that there was any fraud.  It was submitted that Respondent had applied for a licence to operate a casino, which was granted on 12 September 2012.  The licence was posted to the Respondent and by the 1st of October 2012 when the consent judgment was entered into Respondent had not received the licence.  In any event by the 1st of October the Respondent had not started operating gainfully.  So there was nothing to disclose.  Respondent was not gainfully employed.  It was also submitted that Respondent did not withhold any information, he communicated the information to one Mr Makani employed by Applicant.  Mr Makani is the one who advised Respondent to resign.

The position of the law is clear where an employee has been dismissed whether rightly or wrongly.  The employee should mitigate his damages Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417 (S).  However the burden of showing that the employee mitigated his loss rests on the employer.  In Nyaguse v Mkwasine Estates (Pvt) Limited 2000 (1) ZLR 571 (S) at 575 C-D the Supreme Court had this to say:

“But at the same time it must be borne in mind that the onus is on the employer to show that the employee has, or should have, earned an income from some other source.”

In my view at the time the parties entered into a consent judgment Applicant as the employer should have had information on whether the Respondent had mitigated his loss or not.  Thereupon the consent judgment would have been informed by that.  However at that time Applicant did not discharge the onus.  For Applicant to approach this court and claim that Respondent was supposed to disclose certain information and failure to do so amount to a fraudulent non disclosure is wrong.

This case was dealt with on the 1st of October considering the facts available, it was for the Applicant to produce the facts on mitigation of damages.  Applicant failed to do so, it cannot be heard to cry foul.  On that basis alone this application must fail.  The matter is res judicata, it was finalized.  The issue of fraudulent no-disclosure is not relevant to this case, because Respondent was not obliged to disclose anything.

There is no need for the Court to proceed to determine on the other issues relating to this application.

Accordingly the following order is made.

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

There is no order as to costs.