L. Nyangawo and 13 Others v Cutrag Processing

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/189/2013
HELD AT HARARE ON 15 MAY
CASE NO. 2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/189/2013

HELD AT HARARE ON 15 MAY				CASE NO. LC/H/145/09

In the matter between

L. NYANGAWO AND 13 OTHERS	-		Applicants

And

CUTRAG PROCESSING			-		Respondent

Before The Honourable B.T. Chivizhe, President

For Applicants		-	Mr M. Mandevere (Legal Practitioner)

(Mbidzo, Muchadehama and Makoni)

For Respondent		-	Mr A. Mugandiwa (Legal Practitioner)

Wintertons Legal Practitioners

REASONS FOR RULING

The Labour Court on 23 September, 2009 granted a default judgment in favour of the Respondent.  On 14 July, 2010 Applicants filed simultaneously an application for condonation of late filing of an application for rescission as well as an application for rescission of judgment.

The Labour Court having granted condonation of late noting of the application for rescission on 2 November, 2010 the matter was set down for hearing of the application for rescission of the default judgment granted on 23 September, 2009.  The application was opposed.  The court having granted the application the following constitute the reasons;

Point in limine

The Respondent having taken a point in limine that the Appellant had not complied with Rule 14 (i) of the Labour Court Rules in that the application was not in Form LCI and there had been no accompanying application for condonation for non-compli ance with the rules the court found that whilst the application filed by the Appellants does not strictly comply with Form LCI the court was prepared to condone the non-compliance as they had been substantial compliance with Rules.

Reasons for default

Applicants’ legal counsel explained the default as follows.  The Appeal was noted by the Trade Union Representative.  His address was given as 13A Simon Mazoredze Road.  The notice of set down was however served on the Trade Union’s previous address at St Andrews House in Harare.  Applicants were therefore not in wilful default as they were not aware of set down date.  Although there are unclear aspects to the Applicants submissions such as why if the Trade Union had indeed changed address no notice had been given to the Respondent party and indeed the court and why the Applicants counsel had not seen it fit to file a supporting affidavit from the Trade Union representative to state that no such service had taken place, or from Mr Bamu their Legal Practitioner at the material time I was however prepared to give the Appellants the benefit of doubt on this aspect.

Prospects of Success

I was satisfied on a reading of the record that the Applicants may have an arguable case on the merits.  The Applicants have in their appeal challenged what they term selective application of the disciplinary process by the employer in that some of the employees who were also involved in the unlawful job action were not disciplined.  It was also contended by the Applicants that the employer may have in imposing the dismissal penalty discriminated against some of them who were members of the Workers’ Committee as some employees had been actually reinstated.

On the basis of the above I was satisfied the Applicants had made a good case for rescission of the default order.