Ministry of Education, Sport, Art & Culture v Tonderai Kutiva

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/146/13
HELD AT HARARE 18TH MARCH 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/146/13

HELD AT HARARE 18TH MARCH 2013			CASE NO LC/H/598/11

MINISTRY OF EDUCATION,				Applicant

SPORT, ART & CULTURE

TONDERAI KUTIVA					Respondent

Before The Honourable G Musariri, President

For Applicant		Ms F Kuipa, Officer

For Respondent		Ms R Mukozho, Attorney

MUSARIRI, G:

On 5th July 2012 this Court made an order.  The terms of the order read as follows,

“Respondent having failed to file its response in terms of Rule 15 of the Labour Court Rules Statutory Instrument 59 of 2006: and further having also failed to show good cause for such failure to file a notice of response, a default judgment be and is hereby entered against the Respondent.  The appeal is consequently allowed by reason of Respondent’s default.” (The underlining for emphasis is mine)

On 14th November 2012 Applicant then filed this application for rescission of the “default judgment.”  Respondent opposed the application.

The reasons for the “default judgment” appear from the order itself.  Applicant failed to file a Response in terms of this Court’s Rules.  Furthermore it failed to show good cause for its failure to file the Response.  In fact though the order is a default judgment, Applicant was represented on the date matter was heard and the order issued.  Its representative failed to show good cause for the failure to file a Response to Respondent’s appeal.  What it then sought to do through this application was to revive the same matter by rehashing the reasons for its failure to respond.  The reasons having been considered and ruled upon by this Court, the matter became res judicata as argued for Respondent.  The order is couched in final terms and thus this Court is functus officio.  Applicant’s recourse lies not with this Court but with the Supreme Court via an appeal or review as it may best be advised.

Wherefore it is ordered that,

The application for rescission of judgment is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT