Radion Nyarugwe v Wiserow Enterprises (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/35/2023
HARARE, 12 JANUARY 2022 &
27 JANUARY 2023
CASE NO LC/H/526/22
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/35/2023

HARARE,  12 JANUARY 2022 &			   CASE NO LC/H/526/22

27  JANUARY  2023

In the matter between:-

RADION NYARUGWE				APPLICANT

WISEROW ENTERPRISES (PVT) LTD		RESPONDENT

Before the Honourable Kudya J

For the Applicant		S.T.  Vambe (Trade Unionist)

For the Respondent		Tongoona Ndoro  (Legal Practitioner)

KUDYA, J:

This is an application for the rescission of a judgement given in default against the applicant employee when he failed to attend hearing of the review matter which he had filed with this court.

The test for rescission cases is settled See Stockhill v Griffiths 1992(1) ZLR 173.  At the onset of this application the respondent took two points which it hoped would dispose of the matter without need to go into the merits. For completeness of record the court however invited both parties to address it in the points in limine and the merits of the application.

The first point which was taken was that the review application was made out of time and no condonation had been sought.  In the respondent’s view a grant of the rescission relief would be out of order since it is based on a defective review application.

Applicant explained to the court’s satisfaction that he only filed the review application after exhausting all the internal remedies hence his filing of his application on 7 December 2021. From 19 November 2021 it shows that he was within time with his application.  It indeed made practical sense for the applicant to exhaust all the domestic remedies available to him before he could lodge his application for review with the labour court. The 1st point in limine being without substance therefore fails.

As regards the 2nd point the respondent states that applicant refers mainly to the disciplinary committee proceedings in his review thus leaving the appeals proceedings untouched. Appellant’s response was to the effect that what he sought to have reviewed was the whole process leading to his loss of employment to the extent that the appeals proceedings are also included.  A reading of the voluminous review grounds shows that what irked the applicant are the processes by both the disciplinary committee and by the appeals committee.  To that extent there is not fatal defect standing in the way of the rescission application.  The 2nd point also being without merit should be dismissed.

On the merits plan the applicant submits that indeed service was effected but he delayed in getting to know that the matter had been set down because he was out of touch with the addressee whose address for service he was using.  It is granted that the duty to check on court process lies with the litigant and at his address of service but it is not out of this world that communication can be a problem resulting in a party getting to know of the fate of his matter late.  In the court’s view the excuse given by the applicant is palpable.  On the question of prospects on the review it need be noted that application filed with the court long and rumbling grounds which are difficult to make out what it is that irked him in how his guilt and his penalty was arrived at. The law is clear that review grounds need to be clear and concise. The grounds in the matter at hand are a far cry from that.

There is also reference at length to substantive issues which need to be addressed by way of an appeal.  On account of the murky review application the court is satisfied that no meaningful purpose could be served by the grant of rescission relief in such circumstances.   In the result the rescission application fails.

It is ordered that Application of rescission of judgement being without merit it be and is  hereby dismissed with each party bearing own costs.

Saidi Law Firm, Respondent’s Legal Practitioners