John Madondo And 36 Others v Superior Holdings

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/191/2014
HELD AT HARARE ON 11 MARCH, 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      	JUDGMENT NO. LC/H/191/2014

HELD AT HARARE ON 11 MARCH, 2014			CASE NO. LC/H/187/10

& 28 MARCH 2014

In the matter between:-

JOHN MADONDO AND 36 OTHERS				-	Applicants

And

SUPERIOR HOLDINGS						-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	Mr. T. Mboko (Legal Practitioner)

For Respondent 	-	Mr. F.A. Rudolf (Legal Practitioner)

CHIVIZHE, J.

The application placed before me is for rescission of a default judgment entered against the Applicants by my sister MUZOFA J on the 27th of November, 2013.  The application is opposed.

The background facts to the matter are that the matter was initially set down for 11am on the date.  The matter was then stood down by consent to 2pm.  The parties’ positions are at variance as to what transpired at 2pm.  The Applicants’ submission is that they along with their legal practitioner arrived at court before 2pm.  They proceeded to the waiting room in the old Labour Court premises.  They waited for the Judge’s Clerk to usher them into chambers.  After 30 minutes they were then advised that the matter had already been disposed of and a default judgment entered against them.  It was Applicant’s submissions that the Judge’s Clerk admitted to having overlooked to check for them in the waiting room.  The Clerk however was reluctant to attest to that in an affidavit.  The applicants were in a position to call for her oral evidence save for the fact she was attending circuit court in Masvingo.

The Applicants submitted that on the basis of their reasonable explanation it had been clearly shown that they were not in wilful default on the date.  The Applicants prayed for an order for rescission of the judgment.

The Respondent was opposed to the application.  The Respondent ‘s legal practitioner submitted that the application itself was fatally defective on the basis that firstly, the application makes reference to 33 supporting affidavits whereas the record shows that the Applicants are 37 in number including John Madondo who is specifically cited.  Secondly, one F. Chiguvare, a deponent to a supporting affidavit has not signed the affidavit and the affidavit is also not commissioned.

In the event that the court was disinclined to agree with the Respondent on the procedural aspects it was Respondent’s counsel submission that the application was in any event meritless.  It was contended firstly that the Applicant’s default was wilful, the explanation tendered by Applicants that they were sitting in the waiting room at the material time was not substantiated before the court.  Secondly this was not the first time a default judgment had been entered arising out of Applicant’s actions.  Thirdly, neither the founding affidavit nor the supporting affidavits spoke to prospects of success a requirement in an application of this nature.  On that basis the Respondent’s prayer was the application being fatally defective it ought to be dismissed.

I shall address initially the procedural point taken by the Respondent.  Whilst it is correct as alluded by the Respondent that the founding affidavit is supported by 33 affidavits instead of 36 affidavits I believe that there has been substantial compliance.  With regards the affidavit by Chiguvare which is not signed or commissioned that affidavit is clearly not properly before the court. It deserves to be struck out.  In reaching both decisions I am also cognisant of the Dalny Mine decision which laid down a well established principle that labour matters ought to be decided on the merits rather than on technicalities.

As far as the merits of the application are concerned the factors that the court ought to consider in determining an application of this nature were well laid out in RedstarWholesalers v Mutomba SC-142-04. These include:

Length of delay in applying for a rescission;

The reason for the default;

The prospects of success; and

The balance of convenience.

The Respondent has disputed the Applicant’s version of events.  The position is settled at law that where as in this case an allegation or averment has been made which amounts to charging an official of the court with some form of dereliction of duty it is incumbent upon the Applicant to obtain from the official an affidavit swearing as to the facts for which he or she is blamed.  The Applicants in this case explained the particular Clerk’s reluctance to swear to an affidavit.  This in my view is probably arising out of the Clerk’s ignorance of the procedures.  The Applicants also indicated to the court that they were prepared to call for the evidence of the Clerk save for the fact that the Clerk was at the time in Masvingo.  I am satisfied that notwithstanding that the Applicants have not placed before the court any evidence in the form of an affidavit from the Clerk concerned to prove the averments made the probabilities are very high that the Applicants were not in wilful default on the particular date.  I am therefore prepared to give the Applicants the benefit of doubt.

In regards prospects of success the Respondent submitted that the Applicants having failed to address prospects in their papers the application clearly ought to fail.  It is clear the applicants’ papers have not dealt with prospects with sufficient detail.  However a perusal of the record by the court showed that the appeal raises crucial issues which clearly ought to be ventilated before the court.  In the result therefore the court grants the application as sought.  It is accordingly ordered as follows;

The application for rescission of a default judgment be and is hereby granted.

The default judgment entered on the 27th of November, 2013 be and is hereby set aside.

The Registrar is directed to set down the matter for hearing on the merits.

DonsaNkomo&Mutangi, applicants’ legal practitioners

Scanlen& Holderness, respondent’s legal practitioners