Riberio Muchengi v Kadoma Textiles (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/421/2016
HARARE, 10 MAY 2016 &
CASE NO LC/H/APP/1227/2015
22 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/421/2016

HARARE, 10 MAY 2016 &				          CASE NO LC/H/APP/1227/2015

22 JULY 2016

In the matter between

RIBERIO MUCHENGI						APPLICANT

Versus

KADOMA TEXTILES (PVT) LTD				RESPONDENT

Before the Honourable L F Kudya J

The Applicant in Person

For the Respondent	G Jakuosi (Legal Practitioner)

KUDYA J:

This is an application for the rescission of a default judgment made in the employer’s favour against the applicant employee. Facts of the matter are that on 7 October 2015 the Labour Court allowed in default the appeal filed the employer because the employee had not attended the hearing on that day despite service. Aggrieved by the default order the employee made the application which is the subject of this judgment.

Basis of the application is that the set down notice did not get to the employee representative’s attention. He therefore argues that he has always been keen to defend the appeal so if his representatives had seen the set down notice they would have attended on the default date.

On the other hand the employer is adamant that no cogent reasons for default have been proferred. Besides, no attempt has been made, to set out the bona fides of the opposition to the appeal. The employer therefore urges the court to dismiss the rescission application as it is not merited at all since employee has not put the court into his confidence about merits of his defence.

The law in relation to rescission applications is settled. Primarily one has to show why he defaulted and the basic merits of his main case subjects of the default judgment. See Stockhill v Griffiths 1992 (1) ZLR 172 (S).

Applying the test to the facts of the case it is worth noting the following. The return of service of the set down date when default judgment was entered says process was served on an old goldy rusty letter box at the address given as the employee representative’s address. Whilst no personal service was effected, service at the address given as the address of service was sufficient service in terms of the rules.

In any event even if the same was not sufficient the employee would need to satisfy the second rung which is the merits test.

A Reading of the affidavit founding the rescission application is silent on the merits. No attempt is even made in the employee’s heads to show what merits the case has to persuade the grant of rescission. The law is clear that an application stands or falls on the basis of the founding affidavit. See Director of Civil Aviation v Hall 1990 (2) ZLR 354. It is clear that the affidavit in the matter at hand has breached the Hall (supra) test. To that extent the court is left guessing as to what cogent ground there is to persuade it to vacate the default award.

In any event even if the court decided to meru motu search for the merits in the main appeal record it is apparent that the opposition of the appeal is porous. The employee argues that his theft should have been proven beyond doubt and that his acquittal on the criminal case should have caused the employer to find him not guilty. In disciplinary proceedings the law is settled that proof in disciplinary cases is on a balance of probabilities. See Zesa v Dera 1998 (1) ZLR 500. Further criminal proceedings are not a determination in civil proceedings. To that extent even if the employer had pleaded the merits of his opposition same would have been found wanting for the reasons stated above. In the result the court is satisfied that no good case for rescission of judgment has been made out. The application should therefore fail.

IT IS ORDERED THAT:

The application for rescission of default judgment being without merit it be and is hereby dismissed.

Each party to bear own costs.

Dube, Manikai & Hwacha, respondent’s legal practitioner