Zimbabwe Broadcasting Corporation (PVT) LTD v Kundai Gova

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/164/25
HELD AT HARARE 17 APRIL 2025
CASE NO. LC/H/178/25
IN THE MATTER BETWEEN:
ZIMBABWE BROADCASTING CORPORATION
(PVT) LTD
APPLICANT
---------


==============================

IN THE LABOUR COUPORT OF ZIMBABWE

HELD AT HARARE 17 APRIL 2025

IN THE MATTER BETWEEN:

ZIMBABWE BROADCASTING CORPORATION

(PVT) LTD

AND

KUNDAI GOVA

APPLICANT

RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

IN CHAMBERS

MURASI J.,

On 21 November 2024, this Court issued an Order in case Number LCH 639/24 barring the Applicant from instituting any proceedings against the Respondent on the same cause of action without paying costs to the Respondent or filing evidence of waiver from the Respondent for such non-compliance. In Case Number LC/H/280/24, Applicant’s application was struck off the roll by reason of the failure to comply with the Court Order. Applicant has brought the present application styled in the Founding Affidavit as an ‘application for condonation for failure to comply with an extant court order, reinstatement of an application for default judgment and extension of time within which to comply with the order of the court.’

I formulated the view that this matter did not require setting down as it could be dealt with on the documents filed of record. Both parties had filed all the documents. This means that there will be no prejudice occasioned to any of the parties.

The Founding Affidavit is deposed to by one Patricia Tsitsi Muchengwa who holds the position of corporate secretary in Applicant’s establishment. The pertinent averments in the Founding Affidavit are as follows:

“Para 24: The 2nd Respondent never issued an invoice for its fees despite knowledge that Applicant sought to have the default judgment rescinded. Instead, she opposed the
 Application for rescission on the basis that her costs had not been paid. No fee note or invoice was attached to its opposition because none existed. She was dishonest with the court.

Para 28: I aver that the requirements for this application have been met. The failure to comply with the Court Order was because \( 2^{nd} \) Respondent did not issue an invoice or fee note to enable Applicant to make payment.”

The first rung of the Draft Order reads as follows:

“1. The application for condonation for non-compliance of court order be and is hereby granted.”

The Opposing Affidavit by the Respondent has the following averments:

“Para 2: Applicant has neither sought the said waiver nor sought to engage me on settling the costs.”

The other averments include the allegation that the Applicant is clearly refusing to comply with the court order. Respondent also made the averment that the Labour Act and the Labour Court Rules do not provide for an application for condonation for non-compliance with a court order and extension of time in which to comply. It was further pointed out that the Court was *functus officio* and could not set aside the order in question or amend it.

**ANALYSIS**

The present application is one that is outside the precincts of civil procedure and the statutory provisions.

I will begin with the Founding Affidavit. After a narration of what transpired to the matter, the Applicant refers to the stage when the application in Case Number LC/H/280/24 was struck off the roll for non-compliance with the Court Order. What is interesting is that the Founding Affidavit is mute on what steps the Applicant took to comply with the Court Order after the matter was struck off the roll for non-compliance with the Court Order. There are no averments in the Founding Affidavit that Applicant made efforts to contact the Respondent with a view to settling the costs in question or seek Respondent’s waiver for such non-compliance. In fact, the Respondent raises the point in the Opposing Affidavit. In **Hiltunen v Hiltunen** 2008 (2) ZLR 296 (H), MAKARAU JP (as she then was) had this to say:

“It is trite that in application proceedings, it is to the founding affidavit that the court will loo to for the cause of action being alleged by the applicant and the evidence that the applicant has to sustain such a cause of action. Hence, as has been said in numerous cases before, an applicant must stand or fall by his founding affidavit and the facts alleged therein because those are the facts which the respondent is called upon to affirm or deny.”


As observed earlier in the judgment, Applicant’s Founding Affidavit does not state what efforts were made to comply with the Court Order. One would have expected the Applicant to attach correspondence to the Respondent indicating a willingness to comply with the Court Order. None exists in this case.

The next issue is whether such request is competent in terms of civil procedure. It is trite that when a court renders a judgment or order, it becomes *functus officio*. A court can only amend such an order on application where there is an error in such order. Of relevance is the statutory provision in section 92C of the Labour Act, (Chapter 28:01). The provisions of this section are clear and unambiguous. However, Applicant does not place any reliance on this statutory provision. The question that follows is on what basis is the Court being requested to condone the non-compliance by the Applicant? Clearly there is no legal basis and Applicant has not established one. The application is alien to civil procedure. In **Hadtinson v Hadtinson** [1952] 2 All ER 567 (CA), it was held as follows:

“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of the obligation is shown by the fact that it even extends to where the person affected believes it to be irregular or even void.”

In **IN RE: Prosecutor-General of Zimbabwe On His Constitutional Independence And Protection From Direction And Control** CCZ 13/17, PATEL JCC had this to say at page 13 of the cyclostyled judgment:

“For the Applicant to refuse to obey court orders and then to avoid answering the critical question as to why he has not, is tantamount to exhibiting flagrant contempt of this Court. This type of contempt in facie curiae cannot be countenanced by the Court. We have a duty to protect our processes from abuse and scandalous impunity.”

In the Opposing Affidavit, Respondent has listed at least five (5) cases where Applicant was applying for either rescission or condonation before this Court. This is evidence of Applicant blundering from pillar to post. It also shows a lack of diligence and tardiness in its approach to court processes. What Applicant seeks to do is to bring such tardiness and lack of diligence to the doorsteps of the Courthouse. The Court declines such invitation to be part and parcel of such processes. In the present matter, Applicant seeks for relief which is alien to civil procedure. The Court takes Judicial Notice of the fact that Applicant is on record as seeking to gather as much revenue as possible. However, it is a sad indictment on the State entity to have those meagre resources expended on frivolous and vexatious legal escapades.

The application has no merit and ought to be dismissed.


The Court makes the following Order.

1. The application, being devoid of merit, is hereby dismissed.
2. There is no order as to costs in the present application.
3. The Applicant shall not institute any proceedings in this Court, on the Respondent, on the same cause of action without the leave of this Court.
--- END OCR FALLBACK ---