HARARE, NOVEMBER 7, 2011 & JUNE 4, 2015

A J Dhliwayo, for the applicant

F A Rudolf, for the respondent

Before MALABA DCJ, in Chambers. 

This is an application for leave to appeal against the decision of the Labour Court dismissing an application for rescission of a default judgment.  The application followed refusal of leave to appeal by the Senior President of the Labour Court on the grounds that the application was made after the expiry of the time – limit within which an application for leave to appeal against a judgment of the Labour Court must be made and absence of prospects of success on appeal to the Supreme Court.

The applicant was employed by the respondent as a Human Resources and Training Manager before he was dismissed from employment following disciplinary proceedings in which he was found guilty of acts of misconduct.  The allegations of the misconduct were that he had applied for and obtained advances of money from a scholarship fund operated by the respondent to cover three semesters on the pretext that he had two children at the University of Cape Town in South Africa and Africa University in Zimbabwe who needed school fees to be paid in foreign currency. 

It is common cause that at the time the applicant applied for and received payment of the money he knew that he had no children at the universities concerned.  When it was discovered that the applicant had misrepresented the fact that he needed the money to pay school fees for children at the two universities the respondent suspended him.  He was charged with the misconduct of committing conduct inconsistent with the fulfillment of the express or implied conditions of the contract of employment and fraud or theft by false pretences.  The applicant sought to defend himself by saying that the payment of the money was on the approval of the General Manager and the company secretary.  He did not appreciate that the gravamen of the charges was that he had misrepresented to the officials concerned that he had children at the two universities and obtained their approval as a result of the misrepresentation.           

What the applicant could not deny was that he did not use the money he had received from the scholarship fund to pay school fees at the universities because there was no cause for the payment of school fees. 

The arbitrator who heard the appeal against the dismissal of the applicant accepted the argument that the money was paid to the applicant on the authority of the General Manager.  He allowed the appeal.  The respondent appealed to the Labour Court against the arbitral award on the ground that it was grossly irrational.  Judgment in default was given against the applicant on 28 September 2007.