Tambaoga Nyazika v Zimbabwe Energy Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/377/2014
HARARE, 17th MARCH, 2014
CASE NO. LC/APP/H/48/14
AND 4TH JULY, 2014
JUDGMENT NO. LC/H/377/2014
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IN THE LABOUR COURT OF ZIMBABWE            JUDGMENT NO. LC/H/377/2014

HARARE, 17th MARCH, 2014    		                          CASE NO. LC/APP/H/48/14

AND 4TH JULY, 2014

In the matter between:-

TAMBAOGA NYAZIKA						Applicant

And

ZIMBABWE ENERGY WORKERS UNION			Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant 		- 	G. Madzoka (Legal Practitioner)

For Respondent		-	S.  Machingauta (Legal Practitioner)

MAXWELL J:

This is an application for rescission of a judgment issued in terms of Rule 19(3) (a) of this Court’s Rules SI 59/2006.

On 6th November 2013 Applicant noted an appeal against an arbitral award dated 22nd October 2013. On 13th November 2013 Respondent filed its Notice of Response. In terms of Rule 19(3) (a) of SI 59/2006 Applicant was supposed to file heads of arguments within fourteen days of receipt of the notice of response. This Applicant did not do. On 17th December 2013 Respondent reminded Applicant of the provisions of Rule 19(3) (a) of SI 59/2006. Applicant did not rectify the breach. On 10th March 2014 Respondent filed a Chamber Application for the dismissal of the appeal in terms of Rule 19(3) (a) of SI 59/2006. The application was granted on 17th March 2014.

On 24th April 2014 the present application was filed. On 9th May 2014 Respondent opposed the application. For an application of this nature to succeed it is trite that good and sufficient cause for the default has to be established. In doing so the following, among other 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 vs. Livingstone Muhomba SC 142/04

Maheya vs. Independent African Church SC 58/07

Champion Constructors vs. Modrack Mkandla and Another SC 18/07

The application was made more than a month after the order sought to be rescinded was granted. The reason given for the delay is the ineptitude of the Applicant’s erstwhile legal practitioners. The lawyer who was dealing with the matter accepted the blame under oath. The question therefore is whether the acceptance of blame by the legal practitioner is good and sufficient cause warranting the granting of the relief sought. Applicant has referred the Court to the cases of;

Cobra and Wild Cat (Pvt) Ltd vs. Tundu Distributors (Pvt) Ltd 1990 (1) ZLR 133

Mubvimbi vs. Maringa and Anor. 1993 (2) ZLR 24

which held that an affidavit from the legal practitioner who is to blame should be attached. This the Applicant has done. However Respondent has made reference to cases that held that such an explanation cannot be taken as “good cause”, the case of Rural District Council vs. Russell Construction Co. 1998 (2) ZLR 190. State vs. Mc Nab 1986 (2) ZLR 280.

The issue to be examined is whether or not Applicant was in willful default. It has not been disputed that the Notice of Response and the reminder that heads of argument were overdue were not brought to the attention of the Applicant. The said documents were served on the erstwhile legal practitioners. Applicant has indicated that he had been assured by Mr Masasire that the case was being given due attention. When Mr Masasire left the employ of Messrs Mutsahuni & Chikore legal practitioner Applicant was not advised. I find that Applicant in this matter did not acquiesce with the default as he was not aware of the same.

I agree with Applicant’s submission that;

“those decided cases which have held that there is a limit beyond which a litigant cannot escape the result of his attorney’s lack of diligence were decided in the context of clients who, with knowledge that action had to be taken, sat by passively without so much as directing any reminder or enquiries to the attorney in whose hands such matters were left (see, for example Salojee and Another NNO vs. B. Minister of Community Development 1965 (2) SA 135 (A) @ page 141 C – H ; Morliswani vs. Mamili 1989 (4) SA 1 (A) @ 10 B – D” (paragraph 29 of Appellant’s heads of argument).

I am inclined to follow the position in the case of Talbert vs. Yeoman Products (Pvt) Ltd S-111-99 in which MUCHECHETERE J.A. (as he then was) said;

“It is clear from the above that the fault in this matter was that of the Applicant’s Counsel and not of the Applicant himself. In these circumstances the Courts usually take the view that a client ought not to be punished for the “sins” of his legal representative unless he connived with the legal representative in the commission of the sins or sat back and did nothing when he became aware of the impending default. The Applicant cannot be accused of that in this case and therefore the default can be excused” (underlining for emphasis)

On the prospects of success on appeal, I am persuaded that there is a likelihood that the appellate Court may interfere with the arbitrator’s findings. The grounds of appeal raise questions of law on issues of sufficiency of evidence, reasons for a decision and approach to mitigation and penalty. For the above reasons the application succeeds.

Accordingly it is ordered that;

The default judgment issued on 17th March 2014 be and is hereby rescinded.

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

The Applicant be and is hereby ordered to filed heads of argument within five working days of receipt of this order.

There is no order as to costs.

Matsanura and Associates – Applicant’s legal practitioners

Tavenhave and Machingauta – Respondent’s legal practitioners