Paison Chinovava v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/39/2021
HARARE, 15 MARCH 2021 &
9 APRIL 2021
CASE NO LC/H/APP/609/19
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/39/2021

HARARE, 15 MARCH  2021 &			   CASE NO LC/H/APP/609/19

9 APRIL  2021

In the matter between:-

PAISON CHINOVAVA				APPLICANT

And

DELTA BEVERAGES (PVT) LTD		RESPONDENT

Before the Honourable Kudya   J

For the Applicant		In Person

For the Respondent		Mr Maguchu (Legal Practitioner)

KUDYA, J:

This is an application for condonation of late filing of a rescission of judgment application.  Default judgment was entered against the applicant employee on 9 October 2019 when he failed to attend court to prosecute his appeal. The condonation application is opposed by the employer whose view is that the applications lacks merit.	The test for condonation of judgment is set out in Jansen v Acavalos 1993 (1) ZLR 	216(S).

The employee states that he only became aware of the default judgment almost a year after it had been handed down. He says he had not put his lawyers into funds so they did not advise him of the progress or lack of it in his matter.  He only got to hear that judgment had been entered in default after he had made personal enquiry at the Registrar’s Office.  He states therefore that his default was not wilful but one occasioned by his economic predicament resulting in a break of communication between him and his then lawyers.  He contends therefore that he has a plausible excuse to his default.

On the merits plane he contends that he has a good case for rescission on the merits since in his view his default was not wilful and also that he is satisfied that the manner in which his labour dispute was handled by the respondent left a lot to be desired vis sufficiency of evidence.  In the result he prays that the sins of his lawyers should not be visited on him and that this court indulges him by condoning his late noting of or rescission of judgment application.

In response, the respondent maintains that the application is bad at law in that it is an unmerited application.  Firstly they take issue with the fact that the alleged  defaulting lawyers did not depose to an affidavit  supporting the excuse given by the employee.  In their view the application lacks sincerity to that extent.

On the merits plane the employee contends that it is ill cited as a party to the rescission proceedings and to that extent it foresees the rescission application being struck off on an account of the ill citation. It goes further and states that the pleadings lack particularly in so far as they speak to what they say was an ill handling of the evidence in the matter.  In the result the employer moves the court to dismiss the condonation application and allow finality to litigation.

In reaction to the citation issue the employee argues that the employer did not raise such allegations and states that the default order cites the party correctly thus creating the impression that his ill citation is a non issue.  It is settled law that a point of law can be raised at any stage.  It is clear that the citation is a point of law which goes to the rest of the matter.  See C.T. Bolts Pvt Ltd v Workers Committee SC-91-11. In that case the judge emphasised the fact that it was neither here nor there that the error seemed to have been condoned by it being perpetuated as all proceedings from the shop floor level.  That there was technical acquiescence to that extent did not absolve the court from endorsing the fact that what was before it was bad at law. The same sentiments apply to the case at hand.

The fact that the ill citation seems to have been acquiesced with does not put it right. It remains a nullity. See McFoy  v United Africa Company Ltd 1961(3) AllER 1169(PC).  The court is therefore satisfied that on the merits plane there is no good case to grant condonation on a patently defective rescission application. Further to that the alleged ill handling of evidence has not been particularised to give the court a clear picture as to why it should be persuaded that the employee may succeed on rescission. In the result the court is persuaded that no good case on the merits has been made out.

It is without doubt that any losing party feels that his case is important to him but it would be inconvenient for the court and the interests of justice for the court to blindly give orders that are blatantly academic in the sense that nothing meaningful can come out of them.  In the case at hand it would be futile to grant condonation. It is clear that the man rescission application is fraught with legal niceties like citation etc.  The order to that extent becomes academic and a nullity. It is clear from the reasoning above that no good case for condonation has been made out.  It should consequently fail.

IT IS ORDERED THAT

Application for condonation of late filing of application for rescission of judgments being without merit it be and is hereby dismissed with costs on the ordinary scale.

Dube, Manikai and Hwacha,  Respondent’s Legal Practitioners