ZESA Holdings V Itayi UTAH

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/504/14
HELD AT HARARE 7TH MAY 2014
CASE
NO
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/504/14

HELD AT HARARE 7TH MAY 2014			CASE NO LC/H/756/13

& 1ST AUGUST 2014

In the matter between:-

ZESA HOLDINGS						Applicant

And

ITAYI UTAH							Respondent

Before The Honourable R.F. Manyangadze, Judge

For Applicant		Mr A Maguchu (Legal Practitioner)

For Respondent		Mr T.K. Hove (Legal Practitioner)

MANYANGADZE, J:

This is an application for the reinstatement of an application for rescission of judgment.  The application for rescission of judgment was struck off the roll by an order issued by Honourable Judge Muzofa on 28 January 2014.

The irregularity that caused the application to be struck off was that the applicant’s legal practitioner, Mr A.K. Maguchu, had deposed to the Founding Affidavit on behalf of the applicant, without a Supporting Affidavit from the applicant, showing that he had authority to depose to the Founding Affidavit.

A brief history of the matter should help put it into perspective.  The respondent won an arbitral award handed down by Arbitrator A.J. Manase sometime in July 2013, in terms of which his retrenchment by the applicant company was nullified.

On 23 September 2013, the applicant filed an appeal in this Court, against the arbitral award.  On 20 November 2013, a default judgment was issued by Honourable Judge Murasi, in terms of which applicant’s appeal was dismissed for want of prosecution.

Applicant went on to file an application for rescission of the default judgment of 20 November 2013.

On 28 January 2014, the application for rescission of judgment was struck off the roll for the reasons already stated.  The striking off of the matter then prompted the present application for re-enrolment of the matter on the roll.  The application has been made in terms of the Chief Justice’s Practice Direction No 3 of 2013, (Practice Direction) which is captioned;

“PROPER USE AND APPLICATION OF THE TERMS ‘STRUCK OFF THE ROLL”, “POSTPONED SINE DIE” AND “REMOVED FROM THE ROLL.”

The respondent raised a point in limine, or rather, two points in limine. I

say two points because at the hearing of the application, respondent’s counsel added another point in limine, in addition to the one raised in the respondent’s Opposing Affidavit.  The points raised were that;

The application is not properly before the court because Honourable Justice Muzofa’s order effectively disposed of the matter.  Respondent contended that sections 3 and 4 of the Practice Direction state that when a matter is struck off, it means it is fatally defective and has thus been effectively disposed of.  The court which issued the order is functus officio and the only remedy is by way of an appeal.

The application is non-existent as there was no valid Founding Affidavit.  The Founding Affidavit that was deposed to by applicant’s legal practitioner is without the necessary authority from applicant and this renders the application fatally defective.  There is no application which the applicant seeks to enrol.

At the hearing of the matter, I dismissed the points in limine and

indicated that my reasons  would appear in the main judgment.

The first preliminary point can be disposed of by a look at the Practice Direction. Sections 3 and 4 provide:

“1.	 The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

In accordance with the decision in Matanhire v BP & Shell Marketing Service (Pvt) ltd 2004 (2) ZLR 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court.”

The phrase relied on by respondent is in section 3, which reads:

“effectively dispose of matters which are fatally defective.”  The respondent then averred that the application for rescission, when it was struck off, was effectively disposed of.

There is however, a proviso to section 4 of the Practice Direction,  which  respondent’s counsel did not focus on as much as he did section 3.  The proviso is in the form of a footnote, which reads:

“such a matter can only be re-enrolled following an application for which an appropriate Court order is issued.  The Registrar shall not reset the matter without a Court Order.”

It is clear the proviso to section 4 provides a window for the re-enrolment of a matter that has been struck off the roll, on good cause shown.  A party whose matter has been struck off can file an application to have the matter re-enrolled, and the court then considers whether there is merit in such an application, and issue an appropriate order.  To that end, the present application is properly before the court.

With regard to the second preliminary point, there is need to separate the two applications.  The brief outline of the history of the matter  made at the outset of this judgment, clearly shows the application for rescission of judgment emanated from Honourable Justice Murasi’s default judgment of 20 November 2013.  There are issues to be argued in that application, should  re-enrolment be granted.  One of the issues is whether or not it was proper for applicant’s attorney to depose to a Founding Affidavit on its behalf.

Honourable Justice Muzofa’s order did not dispose of the merits of the application for rescission.  The order struck it off on the basis of a procedural irregularity.  This implies that if the irregularity is rectified, the party affected can seek re-enrolment of the matter.  Once re-enrolled, the application is then argued on the merits.  The court that will be seized with the application will then consider the merits thereof and issue an appropriate order.

For the reasons given, the preliminary points cannot be upheld.

The issue that remains is whether the applicant has laid out a good and sufficient cause for having its application re-enrolled, whether it should benefit from the window provided for in the Practice Direction.

In this regard, applicant makes an averment that it had infact filed its Supporting Affidavit on 10 January 2014. That was at the time it filed its Answering Affidavit.

It is not in dispute that the record does contain a copy of a Supporting Affidavit, filed on 10 January 2014, when the Answering Affidavit was also filed.  What is in dispute is whether the Supporting Affidavit was indeed filed on the date reflected i.e. 10 January 2014.  It is in respect of this issue that some rather untoward allegations have been made.

In his Opposing Affidavit, respondent averred that the copy a of the Supporting Affidavit, “purportedly filed before the hearing date”, must have been “issued and filed retrospectively to suit the situation.”  I referred to this as an untoward allegation in that it implies that the Supporting Affidavit in question was irregularly, if not fraudulently, sneaked into the record after the matter had been struck off, for the purposes of strengthening the application for re-enrolment.

In the absence of evidence of collusion between the applicant’s legal practitioner and court officials, I will not go so far as to hold that this is what happened.  It has very serious implications on the part of the legal practitioner or any court officials involved.  I will, in the circumstances, regard it as a bald assertion.  It will remain on record as nothing more than that, as no evidence was shown to substantiate it.

The other possibility is that the court, due to a genuine and inadvertent oversight, did not notice the Supporting Affidavit. There is also another dimension, having regard to the Court’s order.  The order, apart from referring to a Supporting Affidavit, also refers to authorisation the legal practitioner to depose to an affidavit on behalf of the applicant.  It seems to me that even if a Supporting Affidavit was there, there is the issue of authority from the applicant, mandating the legal practitioner to do what he did. It is not clear, ex facie the order, whether this authority would be expressed in the Supporting Affidavit itself, or as a separate document, such as a company resolution, attached to the Supporting Affidavit.

What is however clear from the order is that the Honourable Judge could not entertain the application for rescission without these pre-requisites having been attended to.  She then struck off the matter from the roll.

The applicant avers that it had attended to those issues, of the Supporting Affidavit and the requisite authorisation.  It is therefore petitioning the court to avail it the window of re-enrolment, in terms of the Practice Direction.  In my view, the prayer is not misplaced or misdirected.  It does not adversely affect the integrity of the court that granted the order.   It is not seeking a review of that order.  The order did not dismiss the application.  It simply struck it off the roll.  If the position is regularised, an application for re-enrolment may be properly granted.  It seems to me, the question of the adequacy or otherwise of the papers filed by the applicant, is a matter for the Judge who will deal with the merits of the application for rescission of judgment.  The Judge who issued the striking off order did not go into such merits, having considered that the application was not properly before her.

It seems to me that the applicant has shown good and sufficient cause for its application to be re-enrolled.  The Practice Direction is clear on the propriety of such a procedure.  The application, in the circumstances, succeeds and it is accordingly ordered that;

The application for rescission of default judgment which was struck off by order of this court dated 28 January 2014 be and is hereby re-enrolled.

The Registrar is directed to set down for hearing the application for rescission of judgment.

Costs shall be in the cause.

Dube, Manikai & Hwacha, applicant’s legal practitioners

T.K. Hove & Partners, respondent’s legal practitioners