NEC FOR THE Welfare & Educational Institutions V Telford Nyoni

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/245/2014
HELD AT HARARE, 31 MARCH 2014
CASE NO. LC/
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/245/2014

HELD AT HARARE, 31 MARCH 2014		        CASE NO. LC/ REV/H/113/13

& 25TH APRIL 2014

In the matter between:-

NEC FOR THE WELFARE & EDUCATIONAL				Applicant

INSTITUTIONS

And

TELFORD NYONI								Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		-	Ms S. Nyagura (Legal Practitioner)

For Respondent		-	Mr. T.G. Mboko (Legal Practitioner)

MAXWELL J:

This is an application for rescission of default judgment upliftment of bar and condonation of late filing of heads of argument.  Respondent was granted an arbitral award in his favour on 25 September 2012.  Applicant appealed against the arbitral award on 2 October 2012.  There was no notice from the Registrar, in terms of Rule 15(2) of this Court’s Rules SI 59/06, to the Respondent.  Nevertheless Respondent filed his response on 13 November 2012 which he says was served on Applicant’s legal practitioners on 14 November 2012. Applicant filed heads of argument on 17 January 2013.  On 29 January 2013 this court granted Applicant interim relief.

On 2 July 2013 Respondent filed an application for the dismissal of the appeal in terms of Rule 19 (3) (a) and (4) of this court’s rules.  The application was granted on 23 July 2013.  This led Applicant to file the present application on 2 August 2013.

Applicant contends that Respondent’s notice of response was irregular as it is not in line with the Labour Court Rules.  As a result of that belief Applicant submits that it “did not think its heads of argument were filed out of time ….”  Applicant further contends that Respondent should not rely on rules which he did not follow by filing a defective notice of response.  Applicant avers that its legal practitioner was laboring under the genuine mistaken belief that, like the High Court Rules, the period of filing heads of argument does not include the dates the court is on vacation.  Applicant condemns the application by Respondent in terms of Rule 19 (3) (a) and refers to it as “purporting to file an ex parte application for dismissal …” (para 7.9 of founding affidavit) and also “the short circuit hat trick adopted by the Respondent.”(para 12 of founding Affidavit).

In response Respondent avers that Applicant has followed a wrong procedure.  In Respondent’s view Applicant should have appealed against the order of this Court dismissing the appeal.  Respondent further avers that at the time of filing the notice of response he was not legally represented.  Counsel for Respondent submitted that the judgment of this court in terms of Rule 19 (3) (a) is not a default judgment as the presence of the Applicant was never called for nor was it required.  His view was that since the rules of the Court allowed the making of an ex parte application in terms of Rule 19 (3) (a) it cannot be said to be made in default.  He further submitted that an appeal dismissed for want of heads of argument is tantamount to absolution from the instance and not necessarily default judgment.  Counsel further submitted that on the merits there is no reasonable explanation given for the default.  In his view the two reasons given are not mutually consistent, that there was a mistaken belief that heads of argument cannot be filed when the Court is on vacation and that there is no valid response to the appeal.

I will first deal with the issue of whether or not the dismissal of the appeal in terms of Rule 19 (3) (a) was a default judgment.

It is trite that the proceedings in terms of Rule 19 (3) (a) are proceedings done in the absence of the other party.  The determination thereof is in essence a default judgment.  It is an established legal position that the proper procedure for undoing a default judgment is to seek rescission thereof in terms of Section 92C of the Labour Act [Chapter 28:01] and Rule 33 of the Labour Court Rules SI 59/06.

For the above principle I refer to the case of Redstar Wholesalers v Livingstone Mutomba SC 142/04 where CHIDYAUSIKA C. J. had this to say

“The proceedings were conducted in the absence of the Appellant and the judgment itself is very clear on that point.  It certainly is a judgment given in proceedings conducted in the absence of one of the parties and in respect of which the absent party can apply for rescission in terms of section 92C (1) of the Act.”

Respondent is therefore mistaken in his view that the appropriate remedy would be an appeal.  It is surprising that Applicant seems to impute some impropriety in the granting of the order in terms of Rule 19 (3) (a).  Counsel for Applicant has a duty to his client to familiarize himself with the rules of this Court.  In the words of ZIYAMBI JA in Kadungure v Kadungure SC 19/07.

“It is deplorable that the Rules of Court are not studied or taken seriously by the legal practitioners who practice in those courts.  It is part of a legal practitioner’s duty to his client to ensure that he is well versed in the Rules of the Court in which he appears on behalf of his client.  Not to be conversant with the Rules constitutes, in my view, gross negligence on the part of a legal practitioner vis-à-vis his client.” (page 6 of cyclostyled judgment)

If counsel for Applicant had “studied or taken seriously” the rules of this Court he would not have the audacity of submitting that;

“Further the applicant’s legal counsel was under the mistaken belief that the provisions of the High Court rules that the period within which heads of argument had to be filed does not include the vacation period applied in the same circumstances”.

Where rules are provided there is no room for “mistaken belief”.  The legal practitioner has a duty to know what is required in terms of the rules of the Court in which he will appear.  I find it totally unacceptable that the “mistaken belief” is used as a justification that the default was not willful.

The second issue is whether or not the notice of response was irregular.  The propriety or otherwise of the notice of response is an issue relevant to the application in terms of Rule 19 (3) (a) that was dealt with by this Court on 23 July 2013.  The basis of that application is that Appellant failed to file heads of argument.

“(a) within fourteen days of receiving a notice of response to the … appeal…”

The issue of the response not being in the prescribed form cannot excuse Applicant from failing to comply with the rule that requires filing of heads of argument within fourteen days of receipt of a response.  When the application in terms of Rule 19 (3) (a) was placed before a Judge in Chambers, he was satisfied that a proper response to the appeal had been filed and served on the Applicant.  The Judge exercised his discretion and granted the application.  It is therefore too late for Applicant to insist that there was no opposition to its appeal when there is an order that arose out of the Court’s acceptance of the response filed by Respondent.  In my view, on receipt of the so called irregular notice of response, Applicant should have simply complied with the rule by filing heads of argument within fourteen days.  Applicant should have raised the issue of irregularity whilst complying with the Rules.

Now for an application for rescission of default judgment to succeed it is trite that good and sufficient cause for the default has to be established.  In doing so the following factors have to be considered.

the length of the delay in applying for rescission.

the reason for the default.

the prospects of success.

the balance of convenience.

See Redstar Wholesalers v Livingstone Mutomba (Supra)

I am satisfied that there was no inordinate delay in applying for rescission.  The default judgment was granted on 23 July 2013 and the application was filed on 2 August 2013.  The reason for the default as stated above is not acceptable.  However I am bound to consider the prospects of success.  I am satisfied that the prospects of success on appeal are high.  The honourable arbitrator accepted that the Respondent was guilty of misconduct.  He thereafter proceeded to express the view that;

“… the dismissal penalty was not appropriate given the circumstances surrounding the charges and the mitigatory facts.  I am convinced that the Hearing Officer did not adequately weigh the mitigatory factors in line with the requirements of section 7 of the code…” (page 12 of Award)

The arbitrator went on to justify his view on the basis that;

Claimant was a first offender and a correctional penalty was most suitable.

Respondent did not suffer any prejudice.

The Hearing Officer did not consider that Claimant had authority from the chairman of the Executive Committee.  By signing the withdrawal slips the Claimant was authorizing those transactions otherwise the two of them should have been disciplined.  The Chairman was part of the body which acted as the complainant in disciplining the employee.

With due respect the honourable Arbitrator interfered with the exercise of discretion by the employer.  Two of his reasons have been shot down in the Supreme Court.  In the case of Toyota Zimbabwe v Richard Posi SC 55/07 the penalty of dismissal was held to be appropriate for a first offender.  In the case of Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/12 the issue of prejudice was held to be irrelevant were the offence committed involved a betrayal of trust and confidence reposed in the employee.  In any event it has also been held that;

“If the discretion has been exercised on judicial grounds and for sound reason, i.e., without caprice or bias or the application of wrong principles an appeal court will not interfere and substitute its own decision.  It is not enough that it considered, if it had been in the position of the lower Court, that it would have taken a different course.”

(S v Nhumwa SC 40/88 page 5)

Also in the case of Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03 it was held that;

“…. The question of penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

I am convinced that there is a probability that an appellate Court may interfere with the arbitrator’s award.  For that reason I am of the view that the matter should be dealt with on the merits.  The application therefore succeeds on this basis.

I therefore make the following order.

The default judgment issued on 23 July 2013 be and is hereby rescinded.

The late filing of heads of argument by the Applicant be and is hereby condoned.

The heads of argument filed by the Applicant on 17 January 2013 be and are hereby incorporated into the record.

Respondent is to file heads of argument within fourteen days of receiving this order.

There is no order as to costs.

Matsikidze & Mucheche, Applicant’s legal practitioners

Messrs Donsa-Nkomo & Mutangi, Respondent’s legal practitioners