Cousin Zilala v Amnesty International (Zimbabwe)

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/111/20
HELD AT HARARE ON 14th JANUARY,2020
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/111/20

HELD AT HARARE ON 14th JANUARY,2020	       CASE NO. LC/H/APP/427/19

AND 22ND MAY, 2020

In the matter between:-

COUSIN ZILALA						      	Applicant

And

AMNESTY INTERNATIONAL (ZIMBABWE)		      	Respondent

Before the Honourable Mhuri, J.

For Applicant	:	Mr. T. Muzana (Legal Practitioner)

For Respondent	:	Mr. T.G. Mukwindiza (Legal Practitioner)

MHURI J.

On the 28th September, 2018 applicant filed an application with this Court citing Section 12B (3) of the Labour Act [Chapter 28:01] (THE ACT) seeking a declaration, declaring his resignation an act of constructive dismissal by respondent.

Initially the matter was set down for hearing on the 16th May, 2019 and was reset for the 5th June, 2019 as applicant had not been properly served with the notice of hearing.  The notice of set down for the 5th June, 2019 was properly effected on applicant through his legal practitioners then, Messrs Machiridza Commercial Law Chambers.

On the date of hearing, 5th June, 2019, there was no appearance for applicant.  As a result, a default Order was entered against him, dismissing his application.

Meanwhile, when the above application was still pending in this Court, applicant filed a claim with the Labour Officer.  On the date of conciliation, 9th June, 2018 the proceedings did not take off as the Labour Officer and applicant were advised that the application before the Labour Court had proceeded and a default Order had been issued.

It is as a result of this default order that applicant filed this application seeking rescission of the order.  The application is made in terms of Section 92C (1)(a) of the Act

“Subject to this section, the Labour Court may, on application, rescind or vary any determination or order –

Which is made in the absence of the party against whom it was made;

……………………………………

……………………………………”

It is noted, as submitted by applicant’s legal practitioner, that they are seeking rescission of the default order so that when the order is rescinded, they can then withdraw the initial application as earlier intended and then pursue their claim with the Labour Officer.

Rule 40 of the Court’s Rules Statutory Instrument 150 of 2017 provides

“An application for the rescission or alteration of a determination, order or judgment of the Court or Judge on any of the grounds specified in the Act shall be made within twenty-one days from the date after the party has had knowledge, of the determination , order or judgment:

Provided that unless the contrary is proven, the party shall be presumed to have had knowledge of the judgment within two days after the date thereof. “ (Emphasis added)

Respondent raised on preliminary point to the effect that applicant did not comply with the above Rule as his application was filed after 21 days had elapsed from date of knowledge.  It was therefore out of time and since no condonation was sought, it is improperly before the Court and must be struck off with costs on the higher scale.

To determine this point, one needs to look at the applicant’s founding affidavit.  Under factual background applicant states -

“9.	Upon assuming the case, my legal practitioner Mr. Neville Farai Kambarami advised me that it was more apposite, expeditious and convenient, for us to go first to the Labour Office and seek conciliation before approaching the Labour Court.

10.	I agreed, and asked them to file a Notice of Withdrawal and tender wastage costs.  On the day of the hearing, I checked with my legal practitioners out of diligence and was advised that there was no need for me to appear before the courts as they had filed a Notice of Withdrawal.

11.	On the 9th June, 2019, I appeared before the conciliator at the Labour Office at Makombe, wherein I was advised that the matter had not been withdrawn but actually proceeded unopposed on the day by Advocate Chinwawadzimba who was representing respondent.

12.	I telephoned my lawyer who advised me that he would call me back upon enquiry from his clerk.

13.	I then drove to the Labour Court, where I discovered that the withdrawal of the cause I had instituted had not been effected and a default judgment had been obtained.

14.	………………………………………………….

15.	………………………………………………….”

In addressing the length of the delay in applying for rescission, under paragraph 16, applicant states -

“There has not been an inordinate delay in filing these proceedings, after learning of the default judgment, I immediately sought to set aside the judgment ……. I have done that within the usual 30 days required ……..”

In his founding affidavit, applicant acknowledges that he became aware of the default order before the 12th June 2019.  The order had been granted ex-tempore and in the presence of respondent’s Advocate Chinwawadzimba who then advised the applicant and the Labour Officer.  Applicant drove to the Labour Court and confirmed this position.

Applicant also by his admission in paragraph 16 acknowledges that there was a delay though it was not inordinate.  It does not matter in my view whether the delay is inordinate or not (1 day, 1 week, 1 month, or 1 year etc) if there is a delay, condonation must be sought first and granted.  Without this, the action filed will be improperly before the Court.  In casu, the application was filed out of time by 2 days and no condonation was sought and granted.  I therefore find that the preliminary issue was well taken and is upheld.

Respondent prayed for costs on the higher scale, on the basis that applicant’s conduct is full of tardiness resulting in respondent incurring unnecessary costs.

The history of the matter shows that there was tardiness and wrong advice given by his erstwhile legal practitioner.  At first a notice of withdrawal of the application was only to be filed a day before the date of hearing and the legal practitioner did not verify with his clerk whether it had been so filed.  On the day of hearing, the legal practitioner advised applicant not to attend Court as the withdrawal had been “filed”.  It transpired to him thereafter that this was not the case.  As a result he sought to have the default order rescinded.  Although it was the legal practitioner who was tardy in this case, I will absolve the applicant from being visited with the sins of his legal practitioner.  On the date of the hearing of the application, he would have attended Court had the legal practitioner not advised him not to.  After learning of the default order he immediately checked with the Labour Court and also advised his legal practitioner of what had transpired.

In view of this, I will grant costs on the ordinary scale.

Accordingly, the preliminary point having been upheld, it is ordered that the application for rescission of a default order be and is hereby struck off for being improperly before the Court.

Applicant is also ordered to bear respondent’s costs on the ordinary scale.

MUZANA, MUSHONGWE & COMPANY- Applicant’s legal practitioners

BERE BROTHERS – Respondent’s legal practitioners