Zimbabwe Broadcasting Cooperation (Pvt) Ltd v L. Sigauke N.O & Anor

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/170/24
HARARE 05 FEBRUARY,2024
CASE NO. LC/H/863/23
AND 15 APRIL, 2024
In the matter between: -
Zimbabwe Broadcasting Cooperation
Applicant
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THE LABOUR COURT OF ZIMBABWE
HARARE 05 FEBRUARY, 2024
AND 15 APRIL, 2024

In the matter between: -

Zimbabwe Broadcasting Cooperation
(Pvt) Ltd
Versus
L. Sigauke N.O
Kundai Gova
Applicant
1st Respondent
2nd Respondent

Before the Honourable L. Hove, Judge:

For Applicant :    Ms. T. Kachara
For 1st Respondent:    No appearance
For 2nd Respondent:    Mr. C. Mateza

The matter was originally placed before the Court as an application for condonation for late filing of an application for confirmation of an order by a Labour Officer. The matter was opposed at the hearing, the 2nd respondent raised a preliminary point arguing that the applicant’s representative had no authority to represent the applicant on account of the failure to file proof to that effect.

The Court upheld this preliminary objection and found in favour of the respondent. The matter was to proceed as an unopposed matter.

The matter proceeded as unopposed and the resultant decision was a default order. The applicant can properly apply for its rescission.

The cases referred to by the applicant, that is, Kadumba & ors vs Apatron Mining & ors SC 8/23 and Zvinavashe v Ndlovu 2006 (2) ZLR 372 (5) makes this point clear that a judgment entered under these circumstances, where the other side did not oppose, must be treated as being a default judgment. The resultant order or judgment granted was therefore a default order. The absent party can properly seek its rescission.

The Court proceeded to hear the application for rescission and during the oral presentations the respondent argued that the matter for which condonation was being sought, had since been heard and judgment was reserved under case number LC/H/283/21. The present application was no longer relevant. It had been overtaken by events nothing will be gained by persisting with this application.

To understand the nature of this submission it is important to understand that the initial application brought before the Court was an application for condonation for late filing of an application for confirmation of a draft order. The matter proceeded as unopposed when the court upheld the preliminary objection. This application is brought for the rescission of the default order for purposes of rescinding the default order. This will enable the applicant to apply to place the authority properly before the Court and allow the hearing of the application for condonation for the late filing of the application for confirmation.

In the meantime, the application for condonation was somehow heard in the Labour Court and judgement was reserved. This objection that this application for rescission was overtaken by events is therefore with merit. The matter has become academic since the application being sought to be brought before the Court, should this application succeed, has already been dealt with the Court.

The applicant accepted that it was common that the main matter had been argued and judgement was reserved. Both parties participated in the proceedings though the applicant submitted that it was an administrative error that the matter was set down first before the present application. Both parties did not object and judgment were now currently reserved. The Court, on checking with its Court roll, noted that judgment in that case i.e LC/H/283/21 was handed down on 27 March 2024. The main matter was therefore finalized.

What purpose is going to be served by these proceedings? It is the trite position of law that a Court must protect itself and decline to be drawn into determining academic and superfluous points whose overall effect would be to force the Court to pronounce a brutum fulmen. There is really nothing that would be gained by this Court granting this application when the main matter was already been decided.

The Court in Le Grand v Carmelu (Pvt) Ltd 1979 RLR 402 AD at 404 F-H stated that the Civil Courts in common with the criminal Courts exist to do justice and not to provide some practitioners with a forum in which to engage upon technical and wholly academic points, and allow the proceedings to become a contest on technical and wholly academic points completely obscuring the real issues between the parties. In casu, the main matter has already been dealt with. Nothing is to be gained by granting this application except to just engage in a wholly academic exercise.

It was for this reason that the matter had been overtaken by events that I granted the order upholding the preliminary point.
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