Mazowe Rural District Council V D. Karuma AND 5 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/251/14
HARARE ON 1ST APRIL, 2014
CASE NO. LC/H/529/13
AND 9 MAY, 2014
JUDGMENT NO. LC/H/251/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/251/14

HARARE ON 1ST APRIL, 2014				             CASE NO. LC/H/529/13

AND 9th MAY, 2014

In the matter between

MAZOWE RURAL DISTRICT COUNCIL		–	APPLICANT

And

D. KARUMA AND 5 OTHERS				-	RESPONDENT

Before The Honourable L.M. Murasi J.

For Applicant      :	Mr T.R. Madzingira (Legal Practitioner)

For Respondents :	Mr J. Chaka  (Trade Unionist)

MURASI J,

This is an application for rescission of judgment granted by MUZOFA J. on 30th January 2014.

The brief background of this matter are that Applicant and Respondents appeared before PRESIDENT NDEWERE (as she then was) on 20th June 2013 where Applicant applied for time to file Heads of Argument. This application was granted. Applicant did not file Heads of Argument until 4th October 2013. Meanwhile the Respondents had made an application in terms of Rule 19 on 5th September 2013 and on 29th November 2013 the Registrar wrote to Respondents to address certain issues in that application. The application by the Respondents was placed before MUZOFA J. who granted the order on 30th January 2014. Applicant has approached the Court with a plea to have that order rescinded.

Applicant submits that the judgment was granted as a result of  a common error between the parties. Applicant states that the order by NDEWERE J. on 20th June 2013 did not specify the period within which the Heads of Argument were to be filed. Further, Applicant avers that it was still amassing evidence in order to file comprehensive Heads of Argument. Applicant further submitted that Respondents were aware that Applicant had filed Heads of Argument though mistakenly under the wrong case number. As to prospects of success, Applicant stated that allowing the matter to be heard on the merits will permit clarity on the issue of employer/employee relationship.

Respondents, through their representative, submitted that there was no common mistake between the parties as alleged by Applicant. Further, the Respondents submitted, the application in which the order of 30th January 2014 was granted was made on 5th September 2013, well before the Applicant filed its Heads of Argument. It was stated that Applicant did not respect the Rules of the Court because a period of more than 3 months elapsed before Applicant filed Heads of Argument after having been given some reprieve by NDEWERE J. Respondents argued that the averment by Applicant that NDEWERE J. did not give a time frame in which to file Heads of Argument was mischievous.

In making a determination in such matters the Court should decide whether the Applicant has established good and sufficient cause for the judgment to be set aside. For an Applicant to show good and sufficient cause, Applicant must:

Give a reasonable and acceptable explanation for his/her default;

Prove that the application for rescission is bona fide and not made with the intention of merely delaying the other party’s claim; and

Show that he/she has a bona fide defence to the other party’s claim.

The Court will proceed to examine the above criteria in turn. Has the Applicant given a reasonable and acceptable explanation for the default? The reasonableness of an explanation can only be ascertained from the circumstances of the case. In the present matter, Applicant was granted leave to file Heads of Argument by the Court on 20th June 2013. Applicant only filed Heads of Argument on 4th October 2013. The reasons proffered by Applicant are that the Court had not specified the time period within with to file the Heads of Argument and Applicant assumed that the Court had permitted a departure from the Rules. Further, Applicant alleges that it was still gathering evidence in order to file comprehensive Heads of Argument. It should be noted that the permission granted by the Court on 20th June 2013 was indeed an olive branch to Applicant as Respondents were not required, in terms of the Rules, to file Heads of Argument. Applicant should in fact have been barred in terms of the Rules on 20th June 2013.

Applicant further submits that it was of the view that the Court had allowed a departure from the Rules and sought to rely on Rule 26. The Court brought to the attention of Applicant’s Counsel that the Rule specifically refers to “any time before or during the hearing” and such submission would mean a Court would allow a departure from the procedure specifically provided by the legislature. Such an explanation is therefore untenable.

Applicant sought to rely on the confusion cause by its having put the wrong case number on the Heads of Argument. This explanation does not assist Applicant in any way as the Heads of Argument were filed after Respondents had lodged their application in terms of Rule 19 on 5th September 2013. In a nutshell, Applicant has failed to show why it was unable to file the Heads of Argument on time after the order on 20th June 2013. Filing of Heads of Argument on 4th October 2013 showed unreasonable tardiness on the part of the Applicant’s legal practitioners.

The next issue to determine is whether the application is bona fide and not made with the intention of merely delaying the other party’s claim. As pointed out by Respondent’s representative, the matter involves the rights of employees. Some four (4) years down the line the matter remains unresolved. The record shows alarming evidence of tardiness on the part of the Applicant’s legal practitioners. The explanations tendered in Court are at best ridiculous bordering on a contemptuous attitude towards the Rules of Court. As submitted by Respondent’s representatives, one cannot be faulted in coming up with the inescapable view that the dilatoriness in dealing with the matter is meant to cause fatigue to the other party. Applicant has not advanced an explanation that this is not the intended result of its application.

The last issue is whether Applicant has a bona fide defence to the other party’s claim. The Court found no meaningful submissions made by Applicant on this point. Applicant’s Counsel urged the Court to allow the matter to be determined on the merits as it was crucial to determine “employer/employee relationships”. This is hardly a bona fide explanation of an existing defence  as it is not substantiated.

In KM Auctions (Pvt) Ltd vs Samuel and Anor. S – 15/12 GOWORA AJA (as she then was) held that negligence or lack of attention to detail on the part of a legal practitioner could not be an explanation that the Court should find satisfactory. The Learned Judge further held that there is a limit beyond which a litigant cannot escape the results of his legal practitioners lack of diligence or the insufficiency of the explanation tendered. In Zimbabwe Banking Corporation v Masendeke 1995(2) ZLR 400 (S) McNALLY JA had this to say at 403 A:

“The willfulness of a default is seldom if ever, clear-cut. There is almost always an element of negligence, and the question arises whether it was gross negligence and whether it was so gross as to amount to willfulness. And in coming to a conclusion there is a certain weighing of the balance between the extent of the negligence and the merits of the defence.”

The Court is of the view that the negligence exhibited by Applicant in handing this matter was gross and the explanations tendered were very unsatisfactory. This Court further identifies itself with the judgment of McNALLY JA in Songore vs Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 where he stated at page 211 E – F that:

“While the courts are inclined to frown on plaintiffs who snatch at their judgments the impression must not be gained that the Rules may be flouted with impunity and that as long as you are only a day or two late rescission will be granted on request. A reason for the delay must be given and it must be an acceptable reason. A defendant who admits that he was negligent in his tardiness may nonetheless be found to merit rescission if he shows bona fides. But one who puts forward a ‘reason’ which is an insult to the intelligence of the Court may have more difficulty in satisfying the Court on his good faith.”

In the result, the Court finds that, the application for rescission of the judgment of MUZOFA J. of 30th January 2014 is devoid of merit and must be dismissed with costs.

Matizanadzo & Warhurst – Applicant’s legal practitioners