Rudo Shopo v NetOne Cellular (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/545/2016
HARARE, 11 MAY 2016 &
23 SEPTEMBER 2016
CASE NO LC/H/APP/1436/2015
---------


IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/545/2016

HARARE, 11 MAY 2016 &				   CASE NO LC/H/APP/1436/2015

23 SEPTEMBER 2016

In the matter between

RUDO SHOPO								APPLICANT

Versus

NETONE CELLULAR (PVT) LTD					RESPONDENT

Before the Honourable Kudya J

For the Applicant	C Chinyama (Legal Practitioner)

For the Respondent     Ms S Nyagura (Legal Practitioner)

KUDYA J:

This is an application for condonation of late noting of an application for rescission of judgment. Facts giving rise to the instant application are that the applicant employee lost her job with respondent employer following allegations of misconduct in breach of the respondent code of conduct. She appealed to arbitration without success. This drove her to appeal to the Labour Court on 24 November 2014 against the arbitral decision. She however failed to file her heads of argument on the appeal on time. This prompted the respondent to pray for a dismissal of the appeal for want of prosecution. To that end the Labour Court on 13 May 2015 handed down a default judgment dismissing the appeal.

On 8 July 2015 she filed with the court a rescission of judgment application intending to have the default judgment of 13 May 2015 set aside. The rescission application was struck off the roll on account of it having been made out of the time lines set out by the rules of court. The striking off order is what prompted the applicant to file the instant application in a bid to purge the defect attendant to the rescission application which led to its striking off by the court.

The respondent is opposed to the grant of the condonation relief. It argues that technically the applicant has no good case before the court as she has again flouted the rules of court by failing to make the condonation application on the prescribed LC1 Form. It argues therefore that there is no application before the court and it should be struck off with costs on an attorney-client scale. On the merits the respondent argues that the application is bad at law since it has no merits. The merits argument is premised on the fact that the default judgment itself was birthed by the applicant’s failure to file heads on time hence it cannot be argued that the applicant has a good case to that end. The respondent argued further that the applicant’s case has no merits on the main appeal as it raises review issues which are not appealable. In the result the respondent prayed that the condonation application be dismissed with costs.

Condonation application principles are settled. See Mazvimbakupa v City of Harare HH 92-05. In summary form the explanation and extent of default coupled with merits of the matter and importance of the case decide whether a party should or should not be condoned.

Before delving into the merits of the condonation test it is imperative that the points at the outset attendant on the matter be disposed of first.

Mix up of case number

The parties argued over the issue whether it can be said there is an application before the court or a response to same since it is not clear what LC/H/APP/1436/15 and LC/H/APP/810/15 are supposed to be about. The confusion seemed to have been exacerbated by the interchange used by the Registrar on citing the two cases. Resultantly where the response speaks to one case when it is supposed to speak to the other the impression created is that the two are distinct cases. What the court thus ended up having is a debate of mutually destructive arguments vis the citations yet in truth and in fact the two were inter-twined hence the confusion. It is the court’s view that the interchange debate should not detain the matter as it does not take the matter further. To that extent arguments raised by either party on that aspect lie where they fall and the matter has to be concluded as APP/1436/15 cross referenced APP 810/15.

Form LC1

The law is clear that where the wrong form has been used to found on action that is fatal to the extent that the matter cannot be concluded on the wrong format but that such irregularity has to be purged first. See Heywood Investments (Pvt) Ltd t/a GDC Hauliers v Zakeo SC 32-13.

A reading of all the submissions on file in the instant matter including the oral submissions do not contain a response to the argument that the application is defective on account of the use of the wrong format. The law is clear that such what is not challenged is taken as admitted. To that it would not be remiss for this court to conclude that the applicant is in agreement that the application is fatally defective because of the format it took. In that light the point in limine being with merit it be and is hereby allowed to succeed. The applicant has to purge her default vis use of the wrong format to bring the instant application. Having concluded that the application is defective on account of the use of the wrong format it becomes of academic interest to delve into the niceties of the application itself which exercise would be futile until such time as the attendant irregularity has been purged. In the result the matter should be struck off the roll.

IT IS ORDERED THAT:

The application for condonation of late noting of rescission of judgment application being irregular on account of it being in the wrong format it be and is hereby struck off the roll with costs.

Chinyama & Partners, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners