Miros Mujere V Nyaminyami Rural District Council

IN THE LABOUR COURT OF ZIMBABWE               JUDGMENT NO. LC/H/330/2013
HELD AT HARARE ON 31st MARCH, 2013          CASE NO. LC/ H/366/2011
In the matter between



MIROS MUJERE                                      –           Applicant
And

NYAMINYAMI RURAL DISTRICT COUNCIL                 –           Respondent




Before The Honourable L. Kudya, President
For Appellant      - In person
For Respondent     - Mrs Mushaka(Legal Practitioner)




KUDYA, L.

             Applicant (the employee) applied for a rescission of the judgment

handed down in default of his appearance at the Labour Court on 13 June 2012

in favor of the Respondent (the employer).       This forms the basis of this

judgment.



       The background of the case is that the employee was dismissed by the

employer following disciplinary proceedings which were conducted in his

absence at the workplace. His matter ended up at the Labour Officers and

finally at arbitration where the arbitrator made an order wherein among other

things the employer was ordered to reinstate the employee to his original

position.
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      The employer argued that before the arbitration proceedings it had paid

the employee his terminal benefits in full and final settlement of what they

owed him at the time of the dismissal. It thus argued that it was irregular for

the arbitrator to order the employee’s reinstatement yet according to it, the

issue between it and the employee had been concluded with the payment of the

terminal benefits.



      The employee argued that, what was paid to him were not his terminal

benefits as such but dues which the employee owed him from an arrangement

where he claimed that at the time of his dismissal he was irregularly dismissed

by the employer because his real employer was the Health Services Board from

which he drew his salary through the Salaries Services Bureau.



    Aggrieved by the arbitral award the employer appealed to the Labour Court

arguing that the arbitrator had erroneously reinstated the employee and also

erroneously found that the Health Services Board was charged with discipline

and employment issues which pertained to the employee. The appeal was set

down for hearing at the Labour Court on the basis of a mail registered slip as

proof of service of the appeal hearing date to the employee.



   The employee defaulted on the hearing date and the court granted a default

judgment in favour of the employer. In essence, it set aside the arbitral award

reinstating the employee and confirmed the dismissal of the employee. At a

later stage the employee gathered that the appeal had been allowed by the

Labour Court in his default. He thus filed the instant application seeking this


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court to set aside the default judgment and allow the main appeal to be heard

on the merits.



      The employer opposed the application for rescission of judgment on the

basis that the employee had been in willful default since there was proof of

service in the form of the registered mail slip. Further to that, it argued that the

employee did not have a bona fide defence to the appeal because, in its view the

arbitrator had erroneously reinstated him yet he had already been paid his

terminal benefits before the matter went for arbitration.



       On the date of argument of the rescission of the default judgment, the

court asked the parties to file comprehensive submissions both on the default

and the prospects of success in the main appeal. Both parties complied. The

submissions were not materially different from what had already been filed on

the merits of the main appeal.



       The law relating to rescission of judgments is well settled. See case of

Grant vs Plumbers 1949 (2) SA 470 where Brumde J. stated the following


    ‘----- I am of opinion that an Applicant who claims relief under Rule 43 should comply with the
   following


   a) He must give a reasonable explanation of his default. If it appears that his default was willful
       or that it was due to his negligence, the court should not come to his assistance.
   b) His explanation must be bona fide and not made with the intention of merely delaying
       plaintiff’s claim.
   c) He must show that he has a bona fide defence to plaintiff’s claim -----“




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    Whilst it is clear that, the above case is a South African case and the facts in

that case related to a purely civil claim, it should be noted that the principles

enunciated therein apply with equal force to the instant case as, it is also

dealing with the setting aside of a default order in labour proceedings which are

also civil in nature.



    Applying these principles to facts of the instant case, it is worth noting that

the explanation for the employee’s default is that he did not see the registered

mail or rather that he was not aware of the set down date for the appeal

hearing otherwise he would have availed himself. All that was on record to

show that service was effected on the employee is the registered mail slip.



      Whilst the court concedes that the rules provide for service by registered

mail as sufficient proof it should however be noted that in the absence of clear

documentation from the postal services which shows clearly that the mail was

uplifted by the employee, the slip remains for what it is worth. To that extent

there is room that it did get to the employee or it did not get to him. In view of

the fact that there is no other better evidence confirming that position the court

is therefore persuaded that the Applicant has a reasonable explanation why he

did not attend court.



     On the question of the bona fides of the case on the merits, the record is

replete with evidence that this is a case which was heavily contested from the

onset as to what the correct status of the Applicant was and as to what exactly

transpired during the alleged conciliation proceedings at the Labour Offices.




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   It is note- worthy that, even before this court started writing this judgment it

had difficulty comprehending how the matter ended up at arbitration and also

as to what the alleged order by the Labour Officer was like in respect of this

case. To that extent the lawyers from the Respondent were invited to address

those two aspects and they responded by attaching documents now filed of

record and stamped 4 July 2013.



      It is worth noting that, the document stamped 6 March 2008 by Senior

Labour Officer Matinyarare only makes reference to how terminal benefits due

to the Applicant could be calculated. It is not couched in the form of an order as

the Respondent would have the court believe. To that extent it is questionable

whether the res-judicata argument made by the Respondents is really sustainable.



      Further to that, documents which were exchanged between the Labour

Officers and the Public Service Officers in respect of this matter give credence to

the fact that there is need for more clarity as to what the exact position was with

the employee and the employer status in respect of this case. Those issues

cannot be resolved by a default order as in the instant or the arbitral

reinstatement. It is in the court’s view necessary that the matter be probed

deeper for what the exact position was in respect of this matter before the

dismissal or reinstatement is sanctioned by this court.



    In the light of the above reasoning, it is clear that the case is a case where

the employee can be said to have a bona fide defence to the appeal hence the

door should not be shut in his face before the full appeal is argued in- depth on

the merits.


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                                                     JUDGMENT NO. LC/H/330/2013




IN THE RESULT, IT IS ORDERED THAT



   1)    The Application for rescission of judgment being with merit be and is

        hereby allowed.

   2) The default judgment of 13 June 2012 handed down by this court is

        accordingly set aside.

   3) The Registrar is mandated to set down the appeal on the merits before

        another President, as soon as practicable on notice to both parties so that

        the appeal can be heard and concluded on the merits.

   4) There will be no order as to costs.




Signed

L. KUDYA -------------

President Labour Court




Masawi and Partners - Respondent’s Legal Practitioners




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