Civil Aviation Authority of Zimbabwe v Tapfumanei Mudzengerere and 122 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/790/2016
HARARE, 16 JUNE 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/790/2016

HARARE, 16 JUNE 2016				         CASE NO. LC/H/APP/11/16

AND 16 DECEMBER 2016

In the matter between:-

CIVIL AVIATION AUTHORITY OF ZIMBABWE			Applicant

And

TAPFUMANEI MUDZENGERERE AND 122 OTHERS		Respondents

Before Honourable R.F. Manyangadze, J

For Appellant 		C Kuhuni (Legal	Practitioner)

For Respondent		S Hashiti (Legal Practitioner)

MANYANGADZE, J:

This is an application for rescission of judgment. The application emanates from a judgment of this court granted in default on 20 May 2015, as a result of the applicant’s failure to file heads of argument.

The background to the matter, briefly outlined, is that the respondents are employed by the applicant as firefighters. During the period 1999 to 2004, they were deployed to the Democratic Republic of Congo (DRC) in different batches. After their return, a dispute arose as to the rate applicable to the payment of their daily allowance during their secondment to the DRC. The respondents claimed they were entitled to a daily allowance of US$250, as per the Civil Aviation Authority of Zimbabwe (CAAZ) travel rates. The applicant claimed the respondents were entitled to the travel and subsistence rates prescribed for Government officials, as their deployment to the DRC was on national duty. In this case, payment was supposed to be in terms of the Special Unapproved Supplementary Allowance, which prescribes a daily rate of US$20,OO.

However, the applicant initially paid an allowance of US$100 for station officers and US$75 for firefighters, which it subsequently reduced to US$75 and US$50, respectively. This resulted in a complaint of underpayment of allowances, against the rate of US$250.

In an arbitral award handed down on 23 August 2013, the arbitrator ruled in favour of the respondents. This led to a subsequent quantification award, handed down on 12 February 2014, wherein the applicant was ordered to pay the respondents a total amount of US$3 176 425,00.

On 13 September 2013, the applicant noted an appeal against the initial arbitral award, under Case No. LC/H/704/13. The appeal was dismissed on 20 May 2015 for want of prosecution, the applicant having failed to file heads of argument timeously. This prompted the instant application.

Both parties made reference to a number of cases where the requirements for an application for rescission of judgment were set out. Among the cases cited were those of Bessie Maheya v Independent African Church SC 58/07, Redstar Wholesalers v Mutomba SC 142/04, and Bishi v Secretary for Education 1989(2) ZLR 240(H). The fundamental consideration is whether or not the applicant has established a good and sufficient cause for rescission of the judgment. In determining whether such cause has been established, the court looks into a number of factors. These include the explanation for the default, the bona fides of the application, and the bona fides of the defence on the merits of the case.

The explanation for the default, in most cases, is a decisive consideration. It shows whether or not the default was wilful. It often demonstrates that there was no deliberate defiance of the court’s rules, and the applicant deserves a day in court.

In casu, the explanation proffered is that the heads of argument were filed on 14 October 2013, the Notice of Response having been received on 2 October 2013. The heads of argument were however, filed in the wrong record. The cause of the misfiling was that the applicant’s erstwhile legal practitioners erroneously entered the case number as LC/H/204/13, instead of LC/H/704/13, on the copies of the heads of argument submitted for filing at the court. Consequently, the appeal record, under Case No. LC/H/704/13, did not contain the heads of argument, hence the default.

This explanation was not disputed by the respondent. It will therefore be taken as common cause that that is what gave rise to the absence of the applicant’s heads of argument in the appeal record.

The respondents however, contended that the explanation tendered was not reasonable. Unless it is being alleged that the applicant is lying, I do not see how the explanation proffered can be regarded as unreasonable. The explanation, essentially, is that the heads of argument went into the wrong record as a consequence of a typographical error on the case number. The digit 7 was erroneously typed as 2, giving a figure of 207 instead of 704. Needless to say, the mistake led to the placement of the documents in question in the wrong file.

Such an error, in my view, is not outside the range of errors that may occur in any office where a large number of typed documents are churned out daily. This does not mean that there should be laxity in the preparation of court documents. Legal practitioners must always thoroughly proof read documents before they are signed for submission to court. I note however, that even where this task is punctiliously attended to, there will be instances where some details are overlooked, such as occurred in this matter. Whether or not the oversight should be condoned or condemned, very much depends on the magnitude of the error and the circumstances of each case.    The error in casu can by no means be viewed as reckless.

The heads of argument, having been submitted with a wrong case number, ended up in a wrong record, even though submitted within time. That makes the default of a rather technical nature, which persuades the court to grant the rescission sought without further considerations. There is of course an element of negligence, in that the heads of argument were not served timeously by the applicant’s erstwhile legal practitioners. That, on its own, should not result in the court’s door being shut against the applicant, given the importance of the matter.

In the case of Chimpondah and Anor v Muvami 2007(2) ZLR 326, at page 328 C-E MAKARAU JP (as she then was) stated:

“In casu, while I find that the conduct by the applicant’s legal practitioner of closing a file and archiving it simply on the basis that the other party had not taken any further steps to set the matter down in six months borders on the ridiculous, I used the discretion vested in me to allow the late filing of the heads of argument because of the need for the parties to have a final judgment on the matter in view of the spate of litigation that they have already been involved in over the same matter. Further, in my view, the point raised by the respondent in his defence is an interesting and important legal point concerning the definition of instalment sales of land under the Contractual Penalties Act [Chapter 8:04].

It is my further view that, when considering an application for condonation for the late observance of a rule of procedure before default judgment is given in the matter, the court should lean towards granting rather than refusing such application. I am, however, not suggesting that, prior to judgment, condonation should be granted for the mere asking.  The applicant still has to satisfy the court that there is good cause to excuse the negligence and grant the indulgence.”

In casu, the parties are locked up in a dispute as to how firefighters should be paid, in a Government to Government arrangement, such as was made between the Government of Zimbabwe and that of the DRC, for assistance rendered during the latter’s civil war. The amount at stake is over three million United States dollars. It seems to me necessary that that the parties obtain judgment after fully ventilating the issues involved, rather than have the matter disposed of by default, especially default that occurred in the circumstances described.

In the circumstances, it is ordered as follows:

The default judgment granted by this court on 20 May 2015 under Order No. LC/H/ORD/641/15 be and is hereby rescinded.

The Registrar shall set down the appeal filed under Case No. LC/H/704/13 at the next available date.

Each party bears its own costs.

C Kuhuni Attorneys, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners