Moses Sikwila v Chartered Institute of Management Accountants

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.
LC/H/62/2020
HARARE, 13 FEBRUARY, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/62/2020

HARARE, 13 FEBRUARY, 2020		     	     CASE NO. LC/H/APP/420/18

AND 28 FEBRUARY, 2020

In the matter between:-

MOSES SIKWILA									Applicant

AND

CHARTERED INSTITUTE OF MANAGEMENT ACCOUNTANTS		Respondent

Before The Honorable L. Hove, Judge:

For Applicant:				Allen Moyo Attorneys At Law

For Respondent				Dube, Manikai & Hwacha (Legal Practitioner)

HOVE J:

This is an application for rescission of an order made in default by this Court against the applicant.

The background is that sometime in 2015, the applicant was charged and dismissed from respondent’s employ for conduct inconsistent with the fulfillment of conditions of his contract and for disobedience of a lawful order. The applicant lost an internal appeal and referred the dispute to a Labour officer and subsequently to an arbitrator. The arbitrator set aside the decision to dismiss the applicant and ordered reinstatement. The respondent was aggrieved and lodged an appeal to the Labour Court under case number LC/H/1946/15.

The Labour Court set aside the arbitrator’s award and confirmed the respondent’s decision to dismiss the applicant in a judgment handed down on 16 June 2017, that is, judgment number LC/H/374/17.

Five months after the judgment had been handed down, on 14 December 2017 the applicant filed an application for condonation of late filing of an application for leave to appeal the decision against him by the Labour Court.

The application for condonation was set down for hearing on 21 May 2018 at 10am. By 11:26, both the applicant and his legal practitioners were in default and the court granted an application made by the respondent to dismiss the matter in default of appearance by the applicant. The court dismissed the application for condonation dated 30 May 2018.

The applicant filed an application for rescission of the court’s order of 30 May 2018 in case number LC/H/APP/420/18 explaining that his legal practitioner had made an error in diarizing the matter for the 23rd and not the 21st of May 2018 as per the notice of setdown. The application for rescission was setdown for hearing on 3 October 2018. On the hearing date, the applicant and his legal practitioners were again not in attendance and a default order was granted dated 10 October 2018.

Another application for rescission of the 2nd default order was made on 6 February 2019 on the basis that the applicant had not been served with the notice of hearing. The notice was apparently served on an old address.

The Labour Court granted the application for rescission on 27 August 2019 and rescinded the order in case number LC/H/APP/420/18.

The effect of that order of 27 August 2019 was to take the case back to the application which had originally been set down for 3 October 2018, that is, LC/H/APP/420/18 being an application for rescission of an order originally granted in default in May 2018.

The matter was set down for hearing on the 5th February 2020 at 10:00am.

On the 5th of February 2020 at 10 in the morning, the applicant’s legal practitioner was not in attendance. His client (the applicant) was in attendance. Initially, the applicant applied that the matter be stood down to a later time to enable his lawyer to attend. The lawyer was said to be attending an interview with the law society. Later the submissions changed to

“can the matter be postponed”.

The court refused to grant a postponement and ordered that the matter be stood down to 12 noon the same day to accommodate the applicant’s legal practitioner. At 12 noon, when the proceedings resumed, the applicant’s lawyer was still not in attendance. The applicant advised the court that he was prepared to proceed with the matter in the absence of his lawyer. He had failed to make contact with him. The matter so proceeded.

The applicant submitted that the reason why him and his legal practitioner had failed to attend court on 3 October 2018 was because his legal practitioner had made a mistake when diarizing the date of setdown and he “mistakenly diarized the matter for 23rd May 2018”.

This was the reason given for the failure to attend court. The applicant then submitted that his non-attendance was not willful. His lawyer misdiarized the date of hearing.

An applicant in an application of this nature must show good and sufficient cause for his default. See the case of Cobra & Wildcat PL & Tundu distributors P/L HCH 38/90. In other words, the applicant must give a reasonable explanation for his default, this is one of the factors in establishing good and sufficient cause. See the cases of Redstar Wholesalers v Mutamba SC 142/04.

Zimbank v Masendeke SC 223/95.

In this case, the explanation given is that the applicant’s lawyer misdiarized the date of set down when they were served with the notice of setdown. He diarized for the 23rd when the set down date was the 21st. The applicant gives this explanation himself imputing the blame for the default on his legal practitioner. There is no affidavit from the legal practitioner confirming that the default was as a result of his misdiarizing. It is trite law that where blame is imputed on a legal practitioner, that legal practitioner must himself file an affidavit with the court supporting the client’s averments. In casu, there is nothing from the legal practitioner.

In the case of Grant v Plumbers P/L 1919(2) SA 470 the court held that a reasonable explanation for the default must be given and if it appears that the default was wilful or that it was due to gross negligence, the court should not come to the applicant’s assistance.

I am of the opinion that the explanation tendered in casu is far from being satisfactory. The applicant is pleading his lawyers negligence, that he was served with a notice of setdown which clearly showed that the date of hearing was the 21st and he diarized for the 23rd. The lawyer does not swear to an affidavit explaining the circumstances of his error. Without any explanation, the Court is of the view that the lawyer lacked diligence in the execution of his duties and was grossly negligent. The applicant cannot escape the result of his lawyer’s lack of diligence. See the case of Soloojee & anor v Minister of Community Development 1965 (2) SA 135.

The court in the case of Uzande v Katsande 1988 (2) ZLR 47 (HC) echoed the sentiments set out in the case of Stewart’s Assignee v Walls Trustees & others (1981) 3 SC 243 to the effect that an allegation by a litigant that he was unaware of a pending trial would justify restitution only if he could establish a supremely just cause of ignorance, free of all blame whatsoever.

In casu, the applicant’s legal practitioner cannot be said to be ‘free of all blame whatsoever’. He is to blame for the misdiarizing whose circumstances he has not explained. He lacked diligence and his client, the applicant cannot escape the lack of diligence on the part of his chosen agent. The courts have stated that the wilfulness of the default is seldom if ever clear cut. There is almost always negligence and the question is, was it gross negligence and whether it was so gross as to amount to wilfulness.

I have already stated that without an explanation by the legal practitioner as to the circumstances of the misdiarizing, the misdiarizing is a gross lack of diligence and it thus amounts to wilfulness. The court under those circumstances, cannot came to the applicant’s assistance.

Prospects of success

If the applicant is successful in this case, he would earn the right to bring his application for condonation for late noting of appeal before the court. It is my considered view that for this application to succeed, he must show that in that application for condonation for late noting of his appeal, he has good prospects of success. The applicant has not addressed the court on the prospects of success of the application for condonation for late noting of appeal. He has thus failed to satisfy one of the requirements in establishing a good and sufficient cause.

He chose to refer the court, for his prospects of success, to the record in his founding affidavit. He states in paragraph 8.5 of his founding affidavit as follows;

“as regards the prospects of success on the merits of that application, the Honourable Court is humbly referred to the record for reference.”

It is my opinion that one must show the court that he has good prospects of success on the merits by making reference to the record. It is not for the court to gleam through an entire record with no specific areas pointed out to enable it to find applicant’s prospects of success. In any event, it is not clear which record the court is being referred to. The applicant in his founding papers dismally fails to make a case as regard his prospects of success.

The applicant’s heads of argument address the requirement of prospects of success but these were not in the application and the founding affidavit.

I am of the opinion that the prospects of success that ought to have been addressed are in relation to the application for condonation for late noting of appeal. In the event that the applicant succeeds to have this default order rescinded, and he gets to argue the application for condonation for late noting of appeal, It is then that the prospects of success of the intended appeal can address the merits of whether or not the applicant has good prospects of setting aside the decision that is being sought to be appealed against. At this stage, the prospects of success must relate to the application for condonation for late noting of appeal and these have not been addressed.

In the result, the applicant has failed to show good and sufficient cause for the rescission of the default order entered against him on the 30th May 2018 LC/H/AP/907/17.

Order

The application for rescission of a default order granted on 30 May 2018 in case number LC/H/APP/907/17 be and is hereby dismissed with costs.

Allen Moyo Attorneys At Law	-	Applicant’s Legal Practitioners

Dube, Manikai & Hwacha	-	Respondent’s Legal Practitioners