Zimbabwe Electricity Transmission AND Distribution Company (Zetdc) V MARK Nhawu AND 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/669/14
HARARE ON 26th SEPTEMBER , 2014
CASE NO. LC/APP/H/242/14
AND 10 OCTOBER, 2014
CASE NO. LC/APP/H/669/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/669/14

HARARE ON 26th SEPTEMBER , 2014			     CASE NO. LC/APP/H/242/14

AND 10th OCTOBER, 2014						X REF. LC/H/120/14

In the matter between

ZIMBABWE ELECTRICITY TRANSMISSION AND

DISTRIBUTION COMPANY (ZETDC)				–	APPLICANT

And

MARK NHAWU AND 3 OTHERS					-	RESPONDENTS

Before The Honourable L.F. Kudya, J

For Applicant   :	Mr A.K. Maguzhu (Legal Practitioner)

with Jakari (Legal Practitioner)

For Respondent:	Mahembe  ( Unionist) with Samunda (Legal Officer)

KUDYA J,

This is an application for rescission of a default judgment handed down by this Court on 5th June 2014.

The background to the matter is that the Applicant employer appealed to the Labour Court against an arbitral award made in favour of the Respondent employees in relation to the employee’s housing allowance and non-pensionable allowances. On the set down date for the appeal the Applicant’s legal practitioners did not attend court leading to the Court granting the default judgment in favour of the Respondent  employees.

The test in rescission application is set out clearly in the authorities cited by both parties in their Heads of Argument. Since the cases are apparent on the record they do not deserve restatement. It suffices to say that mainly 3 issues have to be ruled on and these are whether the default was willful, whether there is good and sufficient cause in the matter and whether the Applicant has a bona fide defence and a prima facie case which has prospects of success see Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S). Each of the tenets will be determined in turn below.

Wilful default

Applicant submitted that its lawyer failed to attend Court due to administrative problems in the form of the fact the lawyers newly appointed Secretary failed to bring the hearing date to the lawyer’s attention until later on the day of the hearing when it became apparent that the Applicant had defaulted Court.

It need be pointed out that more due indulgence would have been expected of the lawyer especially where he was aware that they were operating with a new Secretary. In the Court’s view very little turns on her credentials contained in the papers to demonstrate her skills etc. To that end the Court is of the view that the explanation for the default speaks of negligence on the part of the lawyer concerned. It need however be noted that the cumulative effect of all the tenets is what would rule the day.

Good and sufficient cause

This heading is intricately linked with the heading above and suffice to state that more was expected of the lawyer than he did. However the prompt action he took to apply for the rescission almost immediately upon knowing it seems to suggest serious intent on Applicants part to prosecute its appeal to finality.

Bona fides of the case

It is worth noting that all the 3 issues raised by the Applicant in its appeal as misdirections by the Arbitrator posit legal issues which the appeal tribunal needs to articulate.

It is worth noting that the issues of the extent of the benefit of contract workers as opposed to permanent workers as well as the extent of the application of the statutory Instrument argued about are issues which in the Court’s view carry some bona fides depending on how the appellate court looks at them and interprets the law.

It is therefore clear that the Applicant has a probable merited case on appeal and to that end it would be improper for the Court to shut the door in its face before the appellate court has the chance to rule on the issues at stake. The Court is therefore satisfied that the strength in the prospects of the appeal seem to shift the balance in favour of the granting of rescission despite the porous explanation of the default. In the main therefore Court is satisfied that before it is a good case for rescission of judgment and the order is granted as prayed for.

IT IS ORDERED THAT

Application for rescission of judgment being merited it be and hereby succeeds with each party bearing its own costs.

Dube, Manikai and Hwacha – Applicant’s legal practitioners