Baudenciana Mutero v Zimbabwe Consolidated Diamond Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENNO.LC/H/22/2022
HARARE, 12 JANUARY, 2022 AND
CASE NO. LC/H/460/21
JUDGMENT NO. LC/H/22/2022
CASE NO. LC/H/460/21
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IN THE LABOUR COURT OF ZIMBABWE           JUDGMENNO.LC/H/22/2022

HARARE, 12 JANUARY, 2022 AND                   CASE NO. LC/H/460/21

28 JANUARY, 2022                                           X.LC/H/98/21

BAUDENCIANA  MUTERO						         Applicant

ZIMBABWE CONSOLIDATED DIAMOND          		         Respondent

COMPANY (PVT) LTD

Before the Honourable G. Musariri, Judge;

For Applicant		Mr S. Chipomho, Attorney

For Respondent		Mr J.R. Tsivama, Attorney

MUSARIRI, J:

On the 14 September 2021 this Court issued an order which dismissed Applicant’s appeal for want of prosecution.  On the 30th September 2021 Applicant filed the present application for the rescission of the order.  Respondent opposed the application. The Court may or may not grant rescission as per provisions of Section 92C(1)a of the Labour Act Chapter 28:01.   I shall deal with the matter under subtitles “Default” and “Merits” respectively

Default

The appeal was set down for hearing by this Court in Harare on the 14th September 2021.  Applicant acknowledges receipt of the notice of set down.  His explanation for his default is set out in his founding affidavit as follows,

“6.1	Immediately caused my legal practitioners to write to the Registrar of Labour Court to place the matter on the Mutare Circuit as I was unable to fund the lawyer to Mutare. …….

7.1	I never received any response from the Registrar and I assumed that the Registrar had taken note of my issue. ……

8.	On 15 September 2021 I had to follow up with the Registrar that is when I realised that my appeal had been heard and a default judgement had been entered against me. …….”

On that basis Applicant stated that he was not in wilful default.  The long and short of the explanation for default is that Applicant assumed that the matter would be transferred to Mutare as per his attorneys request.  The attorney’s letter dated 2 September 2021 addressed to the Registrar is filed of record.  The reason for the required transfer was given thus,

“Our client is unable to fund our lawyer to travel and attend to the matter in Harare.”

The both Applicant and his attorney were aware of the date of hearing.  They both defaulted.  Applicant does not explain why he did not follow up with his attorney to check whether his request for transfer had been granted.  Worse still the attorney did not explain what follow-up, if any, he made with the Registrar before the hearing date.  In other words both attorney and client assumed that their request would be automatically granted.  The attorney should have known better.  Once a matter has been set down for hearing it can only be postponed, transferred or otherwise disposed of per order of the Court.  Even the Registrar of the Court cannot dispose of the matter without directions from a Judge.  It was wrong of Applicant to absent himself from the hearing.  It was gross error on the part of the attorney to absent himself or fail to at least arrange for an attorney in Harare to appear in Court to explain his client’s predicament.  There is a limit beyond which a client cannot escape the consequences of his attorney’s conduct.  The present case is perilously close to that limit.

Merits

Applicant sought to appeal a decision of Respondent’s Appeals Officer.  The officer upheld the decision of the disciplinary hearing committee which had found Appellant guilty of misconduct.  In his affidavit Applicant averred that “there are prospects of success in the appeal should the application be granted.”  He proceeded to regurgitate the grounds of appeal in his abortive appeal.  The main thrust thereof was that the Appeal Officer erred by finding guilt when there was no evidence.

For starters the officer did not make findings.  He upheld the verdict of the disciplinary committee.  It is the committee which made findings.  The purport of the officer’s verdict was that the committee acted correctly on the case before it.  It cannot be said the officer erred in making findings.  Secondly and more importantly  Applicant failed to make a case that he had reasonable prospects of success on the merits.  He admitted that he altered the deployment sheet done by his superior.  It was alleged that his deployees connived with illegal miners found on Respondent’s premises.  Yet Applicant does not state by what authority he altered the deployment sheet.  That is the yawning gap in his case.  He quibbled about the absence of standard operating procedures.  It is the absence of a reasonable explanation for his conduct which firmed the case against him.  The case need only have been proved on a balance of probabilities.

I therefore conclude that,

a,	Applicant failed to give a reasonable explanation for his default; and

b,	Applicant failed to show that he has reasonable prospects of success

on the merits.

WHEREFORE IT IS ORDERED THAT,

1.	The appeal be and is hereby dismissed; and

2.	Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E