Kadoma City Council v Zimbabwe Urban Council Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/298/2016
HARARE, 15 JANUARY 2016 &
13 MAY 2016
CASE NO LC/H/APP/1052/2015
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/298/2016

HARARE, 15 JANUARY 2016 &			     CASE NO LC/H/APP/1052/2015

13 MAY 2016

In the matter between

KADOMA CITY COUNCIL						APPLICANT

Versus

ZIMBABWE URBAN COUNCIL WORKERS UNION			RESPONDENT

Before the Honourable D L Hove J

For the Applicant	T Zhuwarara (Advocate)

For the Respondent     J Burombo  (Legal Practitioner)

HOVE J:

This is an application for rescission of judgment. In considering applications of this nature, the court is to consider generally whether or not there has been a reasonable explanation for the default and also whether the applicant has good prospects of success on the merits.

The court in the case of Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 observed as follows:

“The principles applicable in determining this issue were set out by MILLER JA in Chetty v Law Society Transvaal 1985 (2) SA 756 (A) at 764 I – 765 C as follows;

‘the appellant’s claim for rescission of judgment …. Must be considered in terms of the common law, which empowers the court to rescind a judgment obtained on defaultt of appearance, provided sufficient cause therefore has been show … The term ‘sufficient cause’(or ‘good cause’) defies precise or comprehensive definition, for many and various factors require to be considered … But it is clear that in principle and in the long-standing practice of our courts two essential elements of ‘sufficient cause’ for rescission of a judgment by default are:

That the party seeking relief must present a reasonable and acceptable explanation for his default; and

That, on the merits such party has a bona fide defence which prima facie, carries some prospects of success”’.

The court will therefore consider these two factors:

Whether or not the applicant has managed to present a reasonable and acceptable explanation for his default

The explanation given for the failure to attend court has been a bold “my lawyer wrongly diarised the date of hearing”. No circumstances surrounding this “wrong diarising” have been given to the court. Nothing further has been given to the court in the form of proof. In any event incorrectly diarizing the date of court attendance is negligence on the part of the legal practitioner and cannot be deemed to be a good and reasonable explanation.

The fact that the applicant himself was not in wilful default but the fault is that of his lawyers, cannot assist the applicant. The courts have found litigants liable for the negligence of their legal practitioners of choice. See in this regard the case of S v McNab 1986 (2) ZLR 280 (S) DUMBUTSHENA CJ, as he then was, held that in cases similar to the applicant’s case, a party should be punished for the negligence of his legal practitioner. He said:

“In my view, clients should in such cases suffer for the negligence of their legal practitioners. I share the view expressed by STEYN CJ in Saloojee & Anor NNO & Minister of Community Development when he said:

‘There is a limit beyond which a litigant cannot escape the result of his attorney’s lack of diligence or the inefficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of Court …. the attorney, after all, is the representative whom the litigant has chosen himself and there is little reason why, in regard to condonation of a failure to comply with a rule of court, the litigant should be dissolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are’”.

See also Bessie Maheya v Independent African Church SC 58-07.

There has been some casting of blame on the part of the respondent’s legal practitioners who are accused of having snatched a judgment. This is, to say the least, wrong. The respondents’ conduct cannot be in anyway faulted. The applicant was aware of the date of hearing and was in default on that date. It cannot be the respondent’s fault that they obtained a default order.

See in this regard the case of Tuvigari Investments (Pvt) Ltd v Lucy Chiremba & 2 Ors HH 23-09 where the court stated as follows:

“Clearly, the applicant’s law firm was aware of the trial date of this matter. I must point out that allegations of snatching at judgments are of serious magnitude for they portray the accused law firm in bad light. Legal practitioners must be careful to avoid casting aspersions on fellow legal practitioners in their quest to build a good case in favour of their clients or sometimes in a desperate effort to attract the court’s sympathy. It is unethical as it is inconsistent with the rules of practice.”

I am thus not satisfied that the applicant has been able, to show good and sufficient cause for their failing to attend court.

The court must however consider also whether or not the applicant has good prospects of success in the appeal pending before the court.

The applicant argues that to award its employees the salary increment would be against public policy in that it would drive the applicant into insolvency thereby destroying the economic fabric of the nation. Apart from making these bold and sensational averments, nothing has been placed before the court to show it, or to prove that indeed the applicant would be driven in to insolvency. No figures have been placed before the court to show that that would be so. Several sensational claims have been made but nothing has been placed before the court in terms of figures to show that these claims are true. The applicant reiterates that it has no money to award any increment. The applicant has not even attempted to outline facts that show that its submissions are true and factual.

A case will stand or fall on the basis of its founding papers. The founding affidavit deals with the applicant’s prospects of success. It is alleged that the wage bill will be higher than the income and this would lead to the demise of the applicant. Nothing further is placed before the court to establish the truthfulness or otherwise of these averments.

The applicant has in my opinion failed to establish that it has good prospects of success on merits. The court has nothing before it apart from bold unsupported averments. No tangible proof has been placed before the court to help it consider whether or not the arbitrator in making the factual conclusions that he made in awarding a 40% salary increment acted in a manner that constituted palpable inequity, that was far reaching and outrageous in its defiance of logic or acceptable moral standards.

It was incumbent on the applicant to prove its allegations or in casu to show that it had a good prima facie case. It has not.

The arbitrator held that the respondent were entitled to a fair wage, nothing has been placed before the court to show that what the respondent would get as a result of the award was not a fair wage in view of the financial circumstances of the applicant. In short the applicant has failed to show that it has a good prima facie case.

In the result, I’m not persuaded that the applicant has managed to show that it has made a good case for rescission of judgment.

I accordingly dismiss the application with costs.

Mawere & Sibanda, applicant’s legal practitioners

Maja & Associates, respondent’s legal practitioners