Samuel Sithole v Minister for Primary and Secondary Education N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/45/2021
HARARE, 12 NOVEMBER 2020
CASE NO.
---------


IN THE LABOUR COURT  OF ZIMBABWE	JUDGMENT NO. LC/H/45/2021

HARARE, 12 NOVEMBER 2020			CASE NO. LC/H/APP/233/20

AND 7 MAY 2021

In the matter between:

SAMUEL SITHOLE  						APPLICANT

Versus

MINISTER FOR PRIMARY AND SECONDARY 		 RESPONDENT

EDUCATION N.O.

Before The Honourable Kudya J

For Applicant 		NK Mufunda (Legal Practitioner)

For Respondent		 C Siqoza (Civil Division)

KUDYA J:

This is an application for rescission of judgment.  On 29 August 2020 this court handed down a default judgment order against the applicant employee when he failed to show up on the hearing date.  Aggrieved by the default order the employee has now approached this court seeking to have that default order set aside.

The respondent employer is opposed to the granting of the rescission relief citing the fact that the employee was in wilful default and that the employee has no prospects on the main matter.  In the result the employer implores the court to dismiss the rescission application with costs.

The test for rescission of judgments or orders is set out clearly in Stockhill vs Griffiths 1992 (1) ZLR 172 (S).  It is the cumulative effect of the tenets set out in this case which decide the success or failure or the application for rescission of judgement.  Each of the tenets is discussed below.

Explanation for default

The employee contends that he defaulted because he did not see the notice of  set down.  He states that before judgment was granted he had been in communication with the Registrar about the progress in his case but was never advised of the pending set down.  He contends further that his lawyers of record had filed with the Registrar a notice of the change of name and address of the law firm.  In his view if the Sheriff went ahead and served process at the old address such can not be styled good and effective service.  In his view had the Registrar been diligent he would have observed that the address had changed and in that regard would have instructed the Sheriff to serve the process at the new address.  In the ultimate he reasons that his explanation for default is reasonable and he should be afforded the relief which he is seeking.

On the other hand the employer contends that the explanation is unreasonable taking into account the fact that the employee did not formally notify the Registrar of the change of address as per the rules of court.  Its view is that a general notice of change of address would not meet the test of a proper change of address.  In its view the argument advanced by the employee is tantamount to asking the Registrar to leaf through all the files to figure out which ones are for which party and align that with the general notification.

The court is persuaded by the employer’s argument that it was incumbent on the employee to file a proper notice of change of address to guard against the risk of process being served at a wrong place.  The failure to do so demonstrates lack of diligence.  The law is clear that it only helps the vigilant and not the sluggard.  See Ncube vs Ndebele 1993(1) ZLR 39(S).  The fact that some follow up correspondence was exchanged between the Registrar’s office and the employee does not absolve the employee from the duty of filing a proper notice of change of address.  His failure to do so can not be blamed on anyone other than himself.  The court is satisfied that the employee has failed to meet the first test of rescission and the application can not succeed on that score.

Bona fide application

This is intricately linked to the explanation debate discussed above.  Suffice to state that the lack of vigilance vis the communication of the change of address shows lack of bona fides by the applicant.  This rung is also not satisfied so the application cannot succeed based on it.

Merits and prospects on main case

The record is replete with evidence that the matter has moved back and forth based on the employee’s failure to follow the rules resulting in more than one striking off orders.  It is clear from that history that the employee lacks seriousness in prosecuting his matters. Allowing this application would only delay the ends of justice unnecessarily.  Justice delayed is justice denied goes the old adage.  The court is satisfied that on the merits plane there is nothing to persuade it to grant the relief sought so the application also fails on this plane.  In the ultimate it is clear that the applicant has failed to satisfy all the tests for rescission.  His rescission application should accordingly fail.

IT IS ORDERED THAT:

The application for rescission of judgment being without merit in its entirety it be and is hereby dismissed with costs.

Chengetai and Mufunda Law Chambers    -		 Applicant’s Legal Practitioners