UMP Zvataida Rural District Council v Tsigai Mutegude

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/424/16
HELD AT HARARE 7 JUNE 2016
CASE NO
JUDGMENT NO LC/H/424/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/424/16

HELD AT HARARE 7 JUNE 2016				CASE NO LC/H/APP/238/16

& 22 JULY 2016

In the matter between:

UMP ZVATAIDA RURAL DISTRICT COUNCIL			Applicant

And

TSIGAI MUTEGUDE						Respondent

Before The Honourable Kudya, J

For Applicant 			P Seda (Legal Practitioner)

For Respondent		J B Chaka (Trade Unionist)

KUDYA J:

This is an application for the setting aside of a judgment granted on 24 February 2016 in the applicant’s default on 16 February 2016.

The background to the matter is that the respondent employee filed his appeal with the Labour Court on 3 August 2015.  The appeal was set down to be heard on 16 February 2016.  Applicant employer defaulted on that day and the respondent employee applied that his appeal be allowed in the default of the employer.  The default order was granted as prayed for.  Irked by the default order the applicant applied to the Labour Court to have the default judgment set aside.  It is the rescission application which is the subject of this judgment.

The basis for this application is that applicant was not aware of the set down date since the notification to attend the hearing was served on the old address of its legal practitioners.  Consequently the notice did not come to their attention.  It also argues that it has an arguable case in opposition to the main appeal lodged by the respondent employee.

On the other hand the employee is adamant that the employer was in wilful default since it did not make enough effort to bring to the Registrar of the Labour Court’s attention the fact that its lawyers had changed addresses.  He also argues that the employer does not have a good defence to the appeal on the merits since in his view his guilt was based on insufficient evidence.  In the result he prayed that the application for rescission be dismissed with costs on a higher scale and that the default judgment allowing his appeal be made to stand in the circumstances.

The law is settled that for one to succeed in a rescission application he has to give a satisfactory explanation about his default and the bona fides of his main matter or defence thereto.  See Stockhill v Griffiths 1992 (1) ZLR 172 (6).  Each of the tenents of the test is discussed below.

Explanation for default

Applicant argues that when the counsels moved house they wrote a letter to the Law Society and copied same to all the courts advising of the change of address.  This was about 5 January 2016 way before 1 February 2016 the date when the Sheriff served the notification at the old address.  It stated that even though it could not categorically state as to when the Registrar of the Labour Court received the same notification it believed that as per usual operation same would have been on the Labour Court notice board to advise all interested persons.  In its view therefore when service was effected on 1 February 2016 at the old address that was unfortunate as that led to its failure to see the process in question.

In response, the employee was adamant that the default was wilful because before the court date one of his representatives had communicated with one Tsimba from the employer’s that there was a matter in court on the 16 February 2016 pitting the employer and the employee.  A reading of the affidavit speaking to this issue points to a not so clear picture about the information viz the default date.  This is so because it is apparent from the affidavit that the message about the set down for the case at hand only emerged when the parties were discussing about other cases with the respondent employee.  It would therefore be unfair to harp much on that conversation as founding the proof that employer knew of the court date and chose to default.  That the notification was sent to old address is without doubt.

It is clear also that employer did not exercise vigilance by not bringing it to Registrar’s attention that the lawyers had moved shop.  In the main however the scales  tilt more in favour of the default having been explained plausibly as from all the evidence around it there is nothing cogent to say that employer deliberately refrained from attending court.  The explanation and excuse is therefore accepted by the court.

Merits and bona fides of defence to appeal

A reading of the record of the shop floor proceedings in the matter shows that respondent was acquitted in respect of all the allegations levelled against him excerpt where he failed to account for $685 which he however later reimbursed after the auditors had come in.  It is also clear that his guilt was founded on what happened between him and the other person with whom he did a hand over take over.

It also emerged that applicant operated a loose accounting system which could explain how the offences ended up being committed.  It also emerged that the rest of the charges were withdrawn because of lack of evidence in sync with the loose accounting systems.  Being that as it may what was clear from the papers on record is that the employee had to explain how the $685 which he later reimbursed had earlier on failed to be accounted for.  That on its own gives rise to a probable good misconduct case.

In that light the views expressed in Chiku Mnensa SC-89-04 case become relevant.  The question becomes whether respondent should escape because employer defaulted on hearing date in filing heads and on filing response on time.  The answer is in the negative.  Whilst it is imperative that court users adhere to rules of court.  See Ncube v Ndebele 1992 (1) ZLR 288for the smooth administration of justice it is also imperative that interests of justice be sacrificed at the altar of good administration.  It is also noteworthy that the point of law debate raised by both parties has no role in instant case as it is distinct from 98 (10) arbitral appeals which can only be decided on points of law.

In the ultimate the cumulative import of the discussion above on the 2 tenets of rescission of judgment is that the applicant has a good case for rescission of judgment and the matter has to be determined on its merits.

IT IS ORDERED THAT

Application for rescission of judgment being with merit it be and is hereby allowed.

The judgment of 24 February 2016 be and is hereby set aside and the Registrar is directed to set down the main appeal on the merits.

Sawyer & Mkushi, applicant’s legal practitioners