Peace Security Company Private Limited v Gorden Mayetera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/38/2022
HARARE, 24 JANUARY 2022 &
25 FEBRUARY 2022
CASE NO LC/H/APP/368/20
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/38/2022

HARARE, 24 JANUARY  2022 &			 CASE NO LC/H/APP/368/20

25  FEBRUARY  2022

In the matter between: -

PEACE SECURITY COMPANY PRIVATE LTD		APPLICANT

AND

GORDEN MAYETERA						RESPONDENT

Before the Honourable Kudya J

For the Applicant			Mr P. Munyati  (HR Manager)

For the Respondent			In Person

KUDYA, J:

This is an application for the rescission of a judgement made by this court reinstating the respondent employer into his position in a labour dispute pitting him and the applicant employer. Facts of the matter are that respondent was dismissed on notice at a time when the law setting out how such dismissals had to be made had just been promulgated.  He approached a labour officer who failed to deal with the matter within 30 days and that prompted him to apply for an order for reinstatement with the court.  Applicant failed to oppose the order leading to a default judgment. It is that default judgment which it now is seeking to have the court set aside.

The test for rescission of judgment is settled. See Songore v Olivine Industries Pvt Ltd 1988(2) ZLR 291(S).  Each of the tenets is dealt with below.

Explanation for default

Applicant contends that it defaulted due to administrative glitches at its officers exacerbated by the then lockdown period.  In reaction respondent states that the lockdown only came later than the days when the response should have been filed hence there is no nexus between the lockdown and the default.  He contends further that administration glitches were a sluggish approach on applicant’s part and such could not be excused. See Ncube vs Ndebele 1992(1) ZLR 288 (S). A reading of the dates involved in this matter indeed point out to the fact the lockdown dates complained of were not within the period in issue.  To that extent the excuse proffered by the applicant is not plausible and cannot assist in the success of its application.

That said the court still needs to decide on the merits plane of the case. It is pertinent to observe that the success/failure the application is lockdown the cumulative effect of the tenets.

Merits

Applicant contends that responded abated and reprobated by recovering his dues when the contract was terminated and he got his dues yet sought to enforce the same at a later stage before a labour officer and then before the labour court.  It goes on to say that the duplicity of the same claim before 2 fora at the same time that is before the labour officer and before the labour court showed that he was going against the principle of multiplicity of litigation.  It says in any event the claim had prescribed.

It is clear from a reading of the record which contains the default judgment that the critical issue was whether indeed the employee’s contract was terminated properly or not. Applicant contends it was but respondent contends was not.  This raises a serious dispute of fact which in the courts view cannot be resolved on the papers.  For that reason, it would be unfair to shut door in the applicant’s face it need to be determined whether. respondent was entitled to the default or not. It is the court’s view that the merit tenet makes up for the porous excuse.  In the ultimate the application should succeed.

IT IS ORDERED THAT

Application for rescission of judgment being merited it be and hereby succeeds.  Each party bears own costs.