Laubscher Services v Edmore Billiart & 7 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/246/2014
HARARE, 24 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/246/2014

HARARE, 24 MARCH 2014 &			           CASE NO LC/H/355/2013

25 APRIL 2014

In the matter between:

LAUBSCHER SERVICES							APPLICANT

Versus

EDMORE BILLIART& 7 ORS 					RESPONDENTS

Before the Honourable E Muchawa    :    Judge

For the Applicant		E Ndlovu    (Legal Practitioner)

For the Respondent         T Mwaramidze (Trade Unionist)

MUCHAWA J:

This is an application for rescission of judgment. This court entered a default judgment on 22 January 2014 following the applicant’s failure to attend court. The application is opposed.

The applicant alleges that he was not in wilful default. Though he received the notice of set down and duly diarised the matter it is claimed that on the eve of the hearing the applicant’s lawyer one PepukaiMabundu was travelling from Bulawayo where he had attended court on 20 and 21 January 2014. On the drive back, it is alleged that Mr Mabundu hit a pothole and had a double tyre puncture. It is further alleged that it was raining during night time and no help was available. The explanation further states that Mr Mabundu was only able to buy a spare tyre the following morning when he then travelled to Kwekwe.

The failure to get a replacement lawyer from the firm is explained away by the bad communication network leading to failure to communicate with a Mr Ndlovu. not appear at the Labour Court in time for the set down. In short it is alleged that the default was occasioned by circumstances beyond his control.

The respondent alleges that the applicant and his lawyers have exhibited conduct which is undesirable, deplorable and un-respectful of this court. Their explanation for the default is said to be insincere and just a ploy to buy time.

I note that in November 2013 another application for default judgment was made on behalf of the applicant. That time Mr Ephraim Ndlovu was the attending legal practitioner. He too did not attend court in spite of receiving the notice of set down. He claimed to have forgotten to advise his colleagues on leaving to attend an uncle’s funeral. In that case however, both parties were in default.

In the current application, no attempt has been made to substantiate the claims of engagement in court in Bulawayo as alleged. I find that the explanation given for the default, in the circumstances does not amount to good and sufficient cause. (See Sangore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S).

In particular I find that the applicant is represented by legal practitioners who are well aware of the full risks of not attending court. In this case there was even a previous default judgment. They chose not to appear in circumstances where arrangements could have been made. I do not want to be drawn into the operations of law firms as that is not my role. This court will not however have its time wasted repeatedly where lawyers should know better.

Both parties made extensive submissions on the prospects of success on the merits. I find that the applicant does not have any prospects of success on the merits. The arbitrator’s award is well reasoned. It justifies the application of the Collective Bargaining Agreement of the Construction Industry through s 82 (1) of the Labour Act [Cap28:01] which states that even employers who are not members of the employer’s organisation are bound. The award proceeds to consider whether the respondents are employees and relies on the definition in the Labour Act [Cap 28:01]. Reference is also made to the Construction Industry CBA S I 244 of 1999 regarding the definition of the construction industry.

I find that the arbitrator’s decision on the factual findings on the entitlements to underpayments or cash in lieu of leave cannot be faulted in the circumstances. The same is true of the findings of unlawful dismissal.

Consequently the application for rescission of judgment is dismissed and the arbitral award is confirmed.

Mabundu Law Chambers, applicant’s legal practitioners