Zimbabwe Women Lawyers Association v Tonderai Rusape

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/620/13
HELD AT HARARE 13TH SEPTEMBER 2013
CASE
JUDGMENT NO LC/H/620/13
---------




IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/620/13

HELD AT HARARE 13TH SEPTEMBER 2013              CASE NO LC/H/416/11

AND 22ND NOVEMBER 2013

ZIMBABWE WOMEN 						Applicant

LAWYERS ASSOCIATION

TONDERAI RUSAPE						Respondent

Before the Honourable G Musariri, Judge

For Applicant		Ms R Makamure, Attorney

For Respondent		Mr W.T. Pasipanodya, Attorney

MUSARIRI, J

On 11th January 2013 Applicant filed an application for rescission of judgment.  On 5th February 2013 Respondent filed a response in which she opposed the application.  In due course the matter was set down for hearing.  At the outset of the hearing, Respondent raised points in limine.

These are they:

The founding affidavit was improperly deposed by Applicant’s attorney and signed before a fellow attorney from the same firm;

The application does not follow the prescribed form;

The Notice of Assumption Of Agency dated 17th October 2012 also does not follow the prescribed form; and

The application was made out of time without being condoned by this Court.

The founding affidavit was deposed to by Ms Phillipa–Phillips Dube.  She stated that she is a member of Applicant’s Board and authorised in that capacity to make the affidavit. It is clear therefore that she acted in her capacity as a Board member and not in her professional capacity as an attorney.  That she or her law firm previously represented Applicant does not in my view malign the affidavit.  She is entitled, indeed required, to depose to her firm’s handling of the matter since that is the critical issue in casu.

She signed the affidavit before  Ms R Theron, a fellow attorney from  her firm.  If the firm were still representing Applicant there might be construed to be a conflict of interest.   However the firm withdrew from the matter before this application.  I therefore consider that Ms Theron, as a Commissioner Of Oaths, was not conflicted.

The application does not strictly follow the format prescribed by this Court’s Rules.  However it is styled in clear and concise terms.  No prejudice was averred by Respondent. Neither could prejudice be proven given the style adopted.

The complaint concerning the Notice of Assumption Of Agency is clearly misplaced.  The assumption relates to proceedings prior to this application.  Those proceedings were terminated by the order which this application seeks to rescind. As such the Assumption is irrelevant for the purposes of this application.

Rule 33 of this Court’s Rules requires that an application for rescission be made “within thirty days from the date the Applicant became aware” of the order.  Paragraph 16 of the Founding affidavit averred that Respondent became aware of the order on 8th January 2013.  This application was filed 3 (three) days later.  Thus the application was made timeously.

All in all, I find no merit in the points raised in limine.

Wherefore it is ordered that,

Respondents points in limine are hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J U D G E