Pioneer Coaches (Pvt) Ltd v Collen Moyo N.O. & Joshua Chibuda & 31 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/183/2021
HARARE, 14 OCTOBER 2021
CASE NO. LC/H/160/21
JUDGMENT NO. LC/H/183/2021
CASE NO LC/H/160/2021
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT LC/H/183/2021

HARARE, 14 OCTOBER 2021			CASE NO. LC/H/160/21

AND 22 OCTOBER 2021

PIONEER COACHES (PVT) LTD    			           Applicant

COLLEN MOYO N.O.			 		          1ST    Respondent

JOSHUA CHIBUDA & 31 OTHERS		                    2ND Respondent

Before Honourable G. Musariri, Judge

For Applicant		-	Mr RG. Zhuwarara, Advocate

For 1st Respondent     	-	Mr C. Moyo, Agent

For 2nd Respondent 	-	Ms N. Nyamayedenga, Attorney

MUSARIRI, J:

Applicant filed in this court an application for rescission in terms of section 92C of the Labour Act Chapter 28:01 hereafter called “the Act”.  Respondent opposed the application.  The order in question was issued by Judge Hove on the 28th April 2021.  The order reads as follows,

“The application for condonation and reinstatement of case LC/H/LRA/25/90 being unopposed be and is hereby granted.”  (The underlying is for emphasis.)                   Applicant’s case is that the order was issued in error.  The error being that the matter was infact opposed.  The Applicant referred to its opposing papers and Heads of Argument which had been filed under case LC/H/LRA/25/20 “being the only reference which was on the copy of the application that was served on the Applicant.”  The court record confirms Applicant’s submission.  The Application for reinstatement bears the case number LC/H/LRA/25/20.  This apparently led to Applicant filing opposing papers bearing the same case number.

The 1st Respondent did not oppose the application.  However, the 2nd Respondent opposed the application.  Their submissions were basically two-fold.  Firstly it was argued that this application was an abuse of court process.  This was because Applicant filed a Response to the reinstated matter.  Respondent argued on that basis that Applicant had accepted the reinstatement order by Judge Hove.  Therefore pursuit of the application for rescission was being done in bad faith.  Secondly it was argued that there were no opposing papers in the file dealt with by Judge Hove.  In any case the papers were filed out of time.  I consider the second rung of Respondent’s submissions as fallacious.  Opposing papers had being filed in this Court though bearing in an incorrect case number.  The error was apparently caused by Respondent who served an applicant the incorrect number.  Respondent’s attorney wrote a letter to Applicant’s attorneys dated 13th November 2020.   A copy is filed of record.  Therein Respondent noted that Applicant had filed the opposing papers.  I am also unpersuaded by the first rung of Respondent’s submissions.  Applicant was faced with an order which indicated the matter was unopposed.  Yet Applicant had filed opposing papers.  Clearly to Applicant, the order had been issued in error.  Its only recourse would be the present application for rescission.  Section 92C (1) a of the Act empowers this Court to rescind any order

“(a) which it made in the absence of the party against whom it is made;”

I consider that Applicant has made a good case for rescission of Judge Hove’s order which was made in its absence.  As regards the merits of the reinstatement I consider it imprudent to delve into the details at this stage.  Suffice it to say Applicant has an arguable case on the merits.  In the circumstances I consider the application as well – made and thus it ought to succeed.

Wherefore it is ordered that,

1, The application for rescission be and is hereby granted.

2. The order by this court dated 28th April 2021 (Ref ORD 12/21) is set aside.

3. The Registrar is directed to set down the matter LC/H/APP/290/20 for hearing.

G MUSARIRI

J-U-D-G-E