Dairibord Zimbabwe v Nesbert Chisango

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/435/14
HELD AT HARARE 5TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO LC/H/435/14

HELD AT HARARE 5TH MAY 2014			CASE NO LC/H/705/10

& 18TH JULY 2014

In the matter between:-

DAIRIBORD ZIMBABWE				Applicant

And

NESBERT CHISANGO				Respondent

Before The Honourable R.F. Manyangadze, Judge

For Applicant		A.K. Maguchu (Legal Practitioner)

For Respondent		T.T.G. Musarurwa  (Legal Practitioner)

MANYANGADZE, J:

This is an application for rescission of a judgment that was granted by this court on 17 September 2012.  The judgment was granted in favour of the respondent after applicant failed to file its Heads of Argument within the time limit required by the Labour Court Rules.

The history of the matter, briefly outlined, is as follows:

The Respondent was dismissed from employment on 28 September 2010, following his conviction for acts of misconduct by applicant company’s Disciplinary Committee.  His appeal to the internal Appeals Committee was dismissed on 22 October 2012.

Respondent then filed an appeal with the Labour Court on 29 December 2010.

On 30 November 2011, the matter was postponed, with the court directing that both parties file their Heads of Argument.  This directive did not set time limits within which the parties were to file their Heads of Argument.

On 1 March 2013 respondent filed his Heads of Argument.  On 27 April 2012 respondent went ahead and filed an application for default judgment in terms of Rule 19 (3) (a).  The default judgment was granted on 17 September 2012.

Applicant filed its application for rescission of judgment on 1 November 2012.

Before dealing with the application, there is need to address the point in limine raised by the respondent.  It was to the effect that this application should not be entertained as it was filed out of time.  In terms of the rules, the application is supposed to be filed within 30 days from the date applicant became aware of the judgment.

Applicant stated its legal practitioners became aware of the judgment on 20 September 2012, through respondent’s representative, one Mr Mhlanga.  Respondent had earlier made an attempt to serve a copy of the judgment on applicant’s Human Resources Officer, who could not accept the same in the absence of the Human Resources Manager.  Applicant pointed out that respondent was aware that applicant was represented by legal practitioners, and had been furnished with the notice of assumption of agency.

There was an element of negligence on the part of the applicant, in not promptly forwarding court documents to its legal practitioners, both the Heads of Argument and the default judgment.  It was also improper for respondent to continue to serve process at applicant’s premises, when he well knew applicant’s legal practitioners of record, and the address for service they had indicated in their notice of assumption of agency.  This resulted in the legal practitioners becoming aware of the judgment on 20 September 2012.  Their filing of the application on 1 November 2012 was therefore not out of time.  Respondent’s averments that the legal practitioners in fact became aware of the judgment much earlier than 20 September 2012 were not satisfactorily substantiated.  In the circumstances, the point in limine is dismissed.

I now turn to the merits of the application.  The requirements for an application for rescission of judgment are well established.  Applicant has made reference to the case of Stockil v Griffiths 1992 (1) ZLR 172 (S), where the factors to be considered were set out as:

the reasonableness of the explanation for the default

the bone fides of the application to rescind the judgment

the bona fides of the defence on the merits of the case and whether the defence carries some prospects of success.

Applicant’s explanation for the default is that the Heads of Arguments for the respondent were served directly on applicant, at its offices, instead of its legal practitioners of record.  The address for its legal practitioner is given as 6th Floor, Goldbridge, Eastgate, Corner R Mugabe and S Nujoma Street.  Respondent chose to serve the Heads of Argument at applicant’s premises, when he well knew applicant’s address for service, that of its legal practitioners.

While it was irresponsible for the respondent to serve the court documents at applicant’s premises whilst knowing applicant had lawyers acting on its behalf, it was also negligent of the applicant not to timeously forward such documents to its lawyers.  The Human Resources Department of the applicant should take full responsibility for this negligence.  Whoever was in that office, be they at managerial or officer level, was supposed to alert the official responsible for court process, so that the documents are transmitted to applicant’s legal practitioners in time.

Whilst I note that there was some negligence on the part of the applicant, I am not prepared to go so far as to say that it deliberately ignored court documents.  It cannot, in the circumstances, be said to have been in wilful default, in the sense stated in the case of Maujean t/a Audio Video Agencies v Standard Bank of SA Ltd 1994 (3) SA 801 (C).  in that case, King J stated; at p 803;

“More specifically, in the context of default judgment, wilful connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e. its legal consequences and a conscious and freely taken decision to refrain from giving notice of intention to defend, whatever the motivation for this conduct might be.”

On the prospects of success and bona fides of the application, it has been shown that respondent’s appeal addresses only one aspect of the charges.  Of the two charges of misconduct he was convicted of, dishonesty and falsification of records, respondent has not contested the conviction on falsifying records.  Whatever his reasons for not doing so, it leaves the record with an uncontested verdict of guilty, on a dismissable offence.  This has an adverse effect on his prospects of success on appeal.

On the whole, I have been persuaded by the need for the parties to have a judgment that disposes the issues between them on the merits.  I am fortified in adopting this approach by the approach made in the case of Chimpondah & Another v Muvami, 2007  (2) RLR 326.  MAKARAU JP (as she then was) stated, at p 328:

“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.”

It seems to me there is good and sufficient cause for rescission of the default judgment.  In the circumstances, I find it unnecessary to go into the other issue, of a rather technical nature, raised by the applicant.  This is the question of whether respondent’s own dilatoriness, in that he filed his Heads of Argument about 3 months after the Court’s directive which did not specify timelines, precluded him from applying for default judgment.  I will grant the application on the basis that “there is good cause to excuse the negligence and grant the indulgence.”

In the result, it is ordered that;

The default judgment granted by the Honourable Court under Case No LC/H/705/10 in favour of the respondent on 17 September 2012 be and is hereby rescinded.

Costs shall be in the cause.

Dube &, Hwacha & Manikai, applicant’s legal practitioners