Doubt Bhunu v Forestry Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/284/14
HELD AT HARARE 9TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/284/14

HELD AT HARARE 9TH MAY 2014			CASE NO LC/H/386/13

& 23RD MAY 2014

In the matter between:-

DOUBT BHUNU						Applicant

And

FORESTRY COMMISSION					Respondent

Before The Honourable E Muchawa, Judge

For Applicant		I Makoshori (Trade Unionist)

For Respondent		Mr R Zhuwarara (Legal Practitioner)

MUCHAWA, J:

This is an application for rescission of a judgment of the 6 March 2014 by Chivizhe J.

Applicant and his representatives of record, the Zimbabwe Furniture Timber and Allied Trade Unions did not turn up for a hearing on the 6 March 2014 which was set down for 0900 hours, despite proper service of the notice of set down.

In the application before me it is explained that on the day in question the applicant got ill and had severe diarrhoea leading to his attendance at Highlands Clinic.  Further it was explained that applicant failed to advise his representatives on time due to the fact that his cell phone battery had no power.  On his part, the representative explained that he made a call to the Labour Court reception requesting that a message be relayed to the Clerk of Court for the matter to be delayed.  He claims to have come to court at 09:27 hours, by which time a default judgment was already entered.

Further submissions are that the prospects of success on appeal are high as respondent had failed to provide minutes of the record of proceedings.  Consequently applicant was unable to file grounds of appeal upon noting the appeal.  It was also argued that without the minutes of the initial disciplinary hearing it would be difficult to prove the commission of the offence.

Applicant was charged of giving unauthorised information to a news reporter regarding respondent’s business and of an act, conduct or omission inconsistent with the fulfilment of his contract of employment.  It is alleged that the offences were not proved and that applicant spoke in his capacity as a member of the Workers’ Committee.

Respondent’s counsel pointed me to the requirements for the granting of a rescission of judgment.  The two essential elements were stated as a reasonable and acceptable explanation for default and that there are some prospects of success in the matter.  I consider these below (See Chetty v Law Society Transvaal 1985 (2) SA 756 (A)

Reasonable and acceptable explanation for the default

I find that applicant’s non-availability has been satisfactorily explained.  He was sick and being attended to at a clinic.  What has not been explained to me satisfactorily is why applicant’s representatives were in default.  I therefore find that they were in wilful default.  As trade unionists who are constantly dealing with this court, the representative, with full knowledge of set down and the risks attendant on his default, freely took a decision to refrain from appearing.  (See Newman (Pvt) Ltd v Marks 1960 (2) SA 170 (SR) at 173 A – D.  It was not enough that he made a phone call to the reception area of the Court or that he appeared twenty seven minutes later than the set down time.  I wish to note with displeasure that even on the date of the hearing of this application, the same representative arrived fifteen minutes late.

Applicant’s representative had the option of attending Court on

6 March 2014 and seeking a postponement if he felt he needed his client’s presence.

Prospects of success

In submissions before me, applicant’s representative made the allegation that the initial disciplinary minutes were not on record and the Court could not come up with a proper assessment of the matter.  It turned out that the allegation was untrue as the minutes are on record.

Respondent’s counsel pointed out that applicant filed a defective notice as the Form LC3 in terms of the Labour Court Rules S.I. 59 of 2006 required applicant to state his grounds of appeal.  In casu applicant filed his grounds of appeal four months later.

Reference was made to the cases of Dombodzvuku v CMED (Pvt) Ltd SC-31-12 and Jensen V Acavalos 1993 (1) ZLR 216 (S) for the assertion that a notice of appeal which does not comply with the rules is fatally defective and invalid, that is to say, it is a nullity, it is not only bad but incurably bad.

I was pointed to the fact that applicant had indeed spoken to the news reporter and evidence showed such communication had happened more than once.  Applicant is also only appealing against the conviction now as the appeal at internal level was only against sentence.  The evidence against applicant in my opinion is overwhelming and this court would be unable to deal with the issue of the conviction which was not raised on appeal internally.  The case of Chikanda v UTC Ltd SC-7-99 is authority for the fact that

“if the argument is not raised, the Appeal Court cannot be faulted for not dealing with it. It cannot be a ground of appeal from the appeal court that it did not deal with a matter which it was not asked to deal with.  On this basis alone the appeal cannot be sustained.”

In the above circumstances I find that applicant does not have prospects of success on appeal.  The evidence against him is overwhelming over and above my analysis above.

This is a case where unfortunately the non observance of the rules by a representative of a party will have to be visited on the client as in S v McNab 1986 (Z) ZLR 280 (SC).

The application for rescission of judgment be and is hereby dismissed with costs.

Dube, Manikai & Hwacha, respondent’s legal practitioners