Z M Transport (Pvt) LTD V Simon Willie N.O. AND Charles Nkomo

### Preamble
1
HB 106/20
(1) Z M TRANSPORT (PVT) LTD
HC 947/19
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Z M TRANSPORT (PVT) LTD						HC 947/19

Versus

SIMON WILLIE N.O.

And

CHARLES NKOMO

Z M TRANSPORT (PVT) LTD						HC 823/19

Versus

SIMON WILLIE N.O.

And

CHARLES NKOMO

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 11 FEBRUARY & 11 JUNE 2020

Opposed Application

Advocate G. Nyoni for the applicant

S. Chamunorwa for the respondent

MABHIKWA J:	The above two (2) matters involving the same parties arise from the same facts.  They were set down for hearing on the same day before me.  On the date of hearing the parties agreed to argue the 1st case only as its determination would necessarily dispose of the second application.  The parties therefore as per their agreement argued the application under cover of case number HC 823/19.  It is an application in terms of Order 9 Rule 63 of the High Court Rules 1971.  It seeks an order setting aside a default judgment of this court granted in case number HC 2742/18 and a default judgment of the Labour Court in case number LC/B/LRA/352/18; LC/MT/53/18, together with the draft ruling of the 1st respondent (arbitrator) confirmed in that matter.

The applicant contends that the application is premised on the grounds below.

That the applicant was not in willful default in all instances.

That the applicant has very good prospects of success on the merits; and

That overall, there is good and sufficient cause to set aside the judgment and draft ruling in question.

What is common cause is that 2nd respondent was employed in a managerial capacity by the applicant from 2005 to 2017.  The rest of the relevant facts are mostly contested.

Firstly, 2nd respondent contends that applicant was in willful default, he has no prospects of success on the merits of the case and that there is no good and sufficient cause upon which this court may set aside its judgment, that of the Labour Court as well as the 1st respondent’s draft ruling.

On the one hand also, applicant contends that on 27 October 2016, 2nd respondent applied for some 60 days leave of absence from work from 28 October 2016 to 3 February 2017.  On the other hand, 2nd respondent argues that he was sent on some forced leave for the said 60 days.  Also on the one hand, applicant contends that without good cause, 2nd respondent failed to report back to work on 4 February 2017, after which time applicant terminated his contract of employment upon the lapse of five (5) consecutive days of absence from duty without official leave and with no reasons proffered.

On the other hand, 2nd respondent argues that he was verbally advised by one Mr Z. Madonko that since there where criminal cases pending against him, he should stay away and await the outcome of the police investigations.  He disputes that he failed to report for work and was dismissed for that reason.

Further, the applicant states that the 2nd respondent was being investigated internally for acts of dishonesty and fraud.  He was subsequently arrested and convicted on fraud charges in a criminal court, but the conviction was later overturned on appeal.  Applicant contends that 2nd respondent used the appeal outcome as a basis to quickly initiate a labour claim against the applicant for alleged non-payment of “salaries” totaling $39 892,00.  The claim included the period in respect of which the 2nd respondent had failed to report for work and when his employment had subsequently been terminated.  On the other hand, 2nd respondent argues that he was simply unlawfully dismissed from employment and claims that applicant is now tailoring the evidence such as the alleged misconduct charges and the alleged dismissal letter.

The applicant contends that following the 2nd respondent’s institution of a claim of unlawful dismissal proceedings it (applicant) instructed a legal practitioner who, due to gross negligence, ineptitude and possibly inexperience as well, did a very shoddy job in representing it, if not misrepresenting it.  Applicant contends that at all times it intended to defend itself but the bundling that led to the default judgment had all to do with the ineptitude of a legal practitioner and to which it had no knowledge or control over.  It was argued therefore that the sins of the legal practitioner’s negligence and ineptitude should not be visited on it as the litigant.

Before responding to the issue of default and the merits, 2nd respondent raised two (2) points in limine.  The first point was that the order sought by the applicant is incompetent as it seeks the setting aside of orders made in the Labour Court and before an arbitrator (1st respondent).  He argued that Rule 40 of the Labour Court Rules, 2017 empowers the Labour Court to rescind its own judgments and that generally, the Labour Court [Chapter 29:01] empowers the Labour Court to control is own processes.

2nd respondent argues further that Order 9 Rule 63 of the High Court Rules, 1971, applies only to orders made by the High Court.  He thus contended that besides being out of time the application is improperly before the court.

I will deal 1st with the two pieces of legislation referred to above.  Order 9 Rule 634 of the High Court Rules, 1971, reads as follows:

“63.	Court may set aside judgment given in default.

A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

If the court is satisfied  on an application in terms of subrule (1) that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

In my view therefore, in addition to the original civil jurisdiction over all persons and over all matters within Zimbabwe, conferred to the High Court by section 13 of the High Court Act, [Chapter 7:06], Order 9  Rule 63 also allows the High Court to entertain a party against whom judgment has been given in default whether under the High Court Rules or under any other law and set aside the concerned judgment if satisfied that there is good and sufficient cause to do so.  The said Rule 40 of the Labour Court Rules cited and relied upon by the 2nd respondent reads thus;

“An application for the rescission or alteration of a determination order or judgment of the court or judge on any of the grounds specified in the Act shall be made within twenty-one days from the date after the party has had knowledge of the determination, order or judgment.  Provided that, unless the contrary is proven the party shall be presumed to have had knowledge of the judgment within two days after the date thereof.”

In casu, there are 3 orders or determinations whose rescission are sought.  These are case numbers LC/B/LRA/30/18 and LC/MT/351/18 under and confirmed by the Labour Court as well as case number HC 2742/18 registered at the High Court.

Whilst it is true therefore, that Rule 40 of the Labour Court Rules allows for the Labour Court to rescind its own orders and judgment, it cannot and does not however allow the Labour Court to rescind an order or judgment of the High Court.  This application involves, as part of it an order of the High Court.  The High Court Act and High Court Rules on the other hand and as already shown above, confers jurisdiction on the High Court not only to make a determination on its own judgment, but that of any other court or under any other law.  This therefore is the 2nd reason why the High Court can properly entertain and determine the matter at hand.

I have stated elsewhere in other judgments that it should be discouraged in my view, that the High Court be asked to “simply flex its muscles” as it were and invoke its inherent jurisdiction powers willy nilly with no just cause shown, where the legislature specifically directs a particular institution, court or individual to deal with the matter in issue.  In casu, there is no way the Labour Court would deal with the High Court order part of the application.

Thirdly, precedent has decided that the High Court can properly deal with such application for rescission, including that of an arbitrator’s draft.

See:	(i) Victoria Falls Municipality vs S C Mutare (NO) & Dickson Mukombwe & 16 Ors HB160-16 per MATHONSI J (as he then was);

(ii) Unilever Zimbabwe (Pvt) Ltd vs Murira & Ors 2016 (2) ZLR 318 (H).

The above point in limine is dismissed.

The 2nd respondent also raised the issue of applicant’s failure to comply with Rule 53 (1) of the High Court Rules in that the application should have been filed not later than one (1) month after the applicant had knowledge of the default judgment.  Rule 63 (3) is to the effect that a party against whom default judgment is granted is presumed  to have had knowledge of such judgment within two (2) days  of the date of judgment being pronounced.

Applicant admits that after receiving the 2nd respondent’s notice of opposition, it quickly realised that indeed by some error in calculation of the days in one calendar month, which in any case is not defined in the rules, the application was filed some three (3) days out of time.  Applicant then quickly filed the application for condonation of late filing of an application for rescission of judgment which is case number HC 947/19.  The issue has not been vigorously argued or pursued by both parties.  The delay in the circumstances cannot be described as inordinate and the non-compliance in my view is the kind that I can as I do,  in the exercise of my discretion, condone in terms of Order 1 Rule 4C of the High Court Rules.

The law relating to willful default, prospects of success and whether there is good and sufficient cause to grant the relief sought

The 2nd respondent has cited and relied on the famous case of Ndebele vs Ncube 1992 (1) ZLR 288 (S) wherein McNALLY JA (as e then was) at page 290 made the equally famous comment that:

“The time has come to remind legal practitioners of the old adage, vigilantibus non domintibus jura supeveniunt – roughly translated, the law will help the vigilant but not the sluggard”.

It must be noted from the facts of the above case, the applicant (Mr Ndebele) was largely to blame, even for the default judgment itself.  He had spent years admitting indebtedness and promising to pay only to default.  He would later deny owing a portion and admit only a portion after summons had eventually been issued against him.  He had later engaged an advocate who advised him to look for money and pay the judgment debt.  	He had engaged the advocate only after judgment in default had been entered.   He continued to approach the other party’s legal practitioners (Mr Coltart of Webb, Low & Barry) with promises to pay.  He would then make irregular and not so meaningful payments.  Ultimately a writ of execution was issued and eventually his property was sold in execution on 25 August 1989.  He was evicted therefrom on 1 October 1989 still promising to pay.

In short, Ndebele continued to duck and dive amid promises to pay from 1984 to October 1989 (five) 5 years.  When he engaged Mr J.J. Moyo of Messrs Calderwood Bryce ad Hendrie legal practitioners, it was long after his house had been sold in execution and even after he had been evicted from it.

I have taken time to repeat the facts and findings of that case almost in full because quite often, legal practitioners quote that case as if the sluggish conduct referred to therein by McNALLY JA related to the legal practitioners.  Quite the contrary, the “drove” or the “sluggard” in that case was in fact the litigant himself.

In casu, right at the beginning at arbitration stage, the applicant instructed his erstwhile legal practitioner, a Mr Ngulube of Messrs Sengweni Legal Practitioners   On the day of the hearing, it is not disputed that a representative of the applicant offered the lawyer a lift to the hearing venue in applicant’s car.  This was well ahead of time, being 9:30am instead of 11:00am. Applicant himself seems to concede this fact at paragraph 23.2 of his opposing affidavit.  Again, this is something that having instructed counsel, a litigant has a reasonable expectation that the lawyer would diarise and know better.  After finding that the arbitrator was not present but would be coming later, he left with the applicant’s representative, telling him to go as he would himself attend to the matter.  The litigant must have thought that the lawyer knew what he was doing.  However, from then on, the lawyer blundered endlessly without advising the litigant.  I am cognizant of the fact that Mr Chamunorwa for the 2nd respondent argues that it matters not whether applicant knew or not.  It is their case and their lawyer.

At one time, a representative of the plaintiff company was made to sign a document (annexure “D”) headed “Applicant’s Founding Affidavit” but in all fairness it is difficult to describe the document in any legal terms.  It was allegedly meant to be an application for rescission of judgment at the Labour Court in Bulawayo.  However, a reading of the same gives the impression that it is a response to some other document, not a founding affidavit.  It is difficult to fanthom that the document was done by a legal practitioner and for what purpose.

Mr Chamunorwa for 2nd respondent has argued that the law is that where one blames his legal practitioners for his failure to comply with court rules or for any dilatoriness, he must file an affidavit from his lawyers blaming themselves.  I am not so sure whether he put it aptly.  I am of the view that there is no hard and fast rule that there should always be such an affidavit.  What I do know is that it has been the practice of law that one was to bolster his averments, if necessary, by an affidavit from his legal practitioner taking the blame for the failure to act.  But surely, common sense would tell us that it is not in every case that if you have a “Mr Lazybones” of a lawyer, he will own up and write you an affidavit accepting the blame for the bungling, especially one who has been dumped for another law firm.

Also Mr Chamunorwa, may not have been entirely wrong considering decided cases such as Cobra and the Wild cat (Pvt) Ltd vs Tundu Distributors (Pvt) Ltd 1990 (1) ZLR 133 (HC) per MUTAMBANENGWE J (as he then was) where the applicant accused his former legal practitioners, Messrs Chirinda, Chihambakwe and Partners who had renounced agency of failure to bring to him or his new lawyers a court order compelling discovery in time until well after default judgment was granted.  The court therein considered Order 2 Rule 8 of the High Court Rules, 1971 that:

“8.	A legal practitioner may at any time renounce his agency by giving notice to his client and to the registrar but, until the client furnishes the registrar with and notifies the opposite party of a new address for service, any process served on the retiring legal practitioners at the address for service shall be considered good service and the retiring legal practitioner shall notify his former client of the  service of any such process by letter addressed to the client’s last known address.”

In fact after Messrs Chirinda, Chihambakwe and Partners, applicant had also been represented by Messrs Winterton, Howes and Hill legal practitioners before ultimately being represented by Messrs Mugabe, Mutezo and Partners who brought the rescission application to court.  There were doubts as to the veracity of the allegation that Messrs Chirinda and Chihambakwe were the ones who had messed up, but applicant had done nothing further than make the allegation.  As if that was not enough, in paragraph 6 of the respondent’s opposing affidavit, applicant was clearly advised to approach Messrs Chirinda and Chihambakwe to confirm, and if true, to explain a pertinent sticking point concerning the handover  - takeover of the client’s file and papers between then and Messrs Winterton, Homes and Hill.  However, in his answering affidavit, the applicant had gone no further than explaining that it could not have been the fault of Messrs Winterton, Homes and Hill.  It did not approach the lawyers accused of bundling even as advised.  The court was left with no option but to hold that the reason why applicant did not approach Chirinda and Chihambakwe was because it was not telling the truth and was unfairly blaming its erstwhile lawyers.

The same point was held by NDOU J in Challenge Auto (Pvt) Ltd & Ors vs Standard Chartered Bank Zimbabwe Ltd 2003 (1) ZLR 17 (H) where the applicant had sought rescission of a default judgment granted against them after they were barred for failing to file a plea.  They blamed their former legal practitioners for the default but did not explain how the practitioners were to blame.  They also did not file an affidavit from the said legal practitioners.  The application for rescission was itself filed more than 2 ½ months after the applicant had learned about the judgment and had even made a part payment to satisfy the judgment.  The court held that it was necessary in the circumstances for the applicant to have obtained and filed an affidavit from their erstwhile legal practitioners accepting blame for the default.  Yet apart from the attempt to blame their former legal practitioners, the applicant had advanced no facts justifying their dilatoriness and even on the merits, they had no prospects of success.  As a result, they had not shown good cause for the court to exercise its discretion in their favour hence the application was dismissed.

I have no doubt that Mr Chamunorwa was referring to the position of the court in the above two cases.  However, the facts in casu are different.  Firstly, annexure “D” referred to above is itself an indicator, even before clarification or an affidavit is sought, that the erstwhile legal practitioner was either just a “Lazybones” type or a very “green” legal practitioner just thrown into the deep end by his superiors in the law firm with no assistance or supervision.  Secondly, at least applicant in casu wrote a letter to the erstwhile lawyers wherein he sought clarification.  Both letters contain “Urgent” stickers.  One was addressed to the attention of Mr Sengweni perhaps as the senior partner of the law firm.  This was on 12 March 2018.  The second one on 23 March 2018, was addressed to the attention of both Messrs Sengweni and  Ngulube.  Both were not favoured with responses according to Advocate Nyoni for the applicant.  In fact applicant contends that these were but just two of the many letters written to the erstwhile lawyers that were not responded to.

I agree with Advocate Nyoni that after that, applicant could not have done anything more.  One cannot force a legal practitioner to write an affidavit and admit to his own bundling knowing or suspecting the likely and possible consequences of such admission in terms of costs and censure.  In any event the Cobra & Wild cat (Pvt) Ltd as well as the Challenge Auto cases above, are authority for the fact that wherever necessary and possible, a party should endeavour to get an affidavit from the former legal practitioners accepting the blame, not that an applicant in that position must get the affidavit at all cost and whatever it takes, file an affidavit from a lawyer “condemning himself” as 2nd respondent puts it.  That would be a nightmare for some applicants as in the current case.  As shown above, the facts and circumstances of the applicant in casu, take him out of the basket of the Cobra & Wild Cat (Pvt) Ltd and the Challenge Auto cases (supra).

In my view, his explanation is more acceptable.  In Mushosho vs Mudimu & Anor 2013 (2) ZLR 642 (H), the court pointed out that there are three (3) separate ways in which a judgment in default of one party may be set aside and a litigant must choose the appropriate one.  These are;

In terms of Order 9 Rule 63 of the High Court Rules, 1971.

In terms of the Common Law; and

In terms of Order 49 Rule 449 of the Rules.

The court also pointed out that a litigant must show that there is “good and sufficient cause” for the granting of the order sought.  “Good and sufficient cause” has been construed to mean that the applicant must (a) give a reasonable and acceptable explanation for his default, (b) prove that the application for rescission is bona fide and not made with the intention of merely delaying the plaintiffs claim and (c) show that he has a bona fide defence to the plaintiff’s claim. In ZEDTC vs Ruvinga (7) 2012 (2) ZLR 61 (H), the applicant had been sued by the respondent for losses arising out of erratic power supplies.  His explanation for default was found by the judge to be false and the application was dismissed.  However, the court held importantly that;

“Further that in order to succeed in having any order made in default of appearance set aside, the applicant must show good and sufficient cause.  The explanation tendered must negate any willful default.  In the context of default judgment, “willful” connotes deliberateness in the sense that the applicant must have had full knowledge of the set down date and the risks attendant upon default; and freely took the decision to refrain from appearing whatever the motivation of that decision may be.”

Exactly the same position was held in Deweras Farm (Pvt) Ltd & Ors vs Zimbank Corp 1997 (2) ZLR 47 (H) per GILLESPIE J (as he then was).  The judge further pointed out that unlike the Magistrates’ Court Civil Rules, the High Court Rules has no provision for the concept of willful default.  All that is required for the rescission is that there be “good and sufficient cause” for it.  Even where gross negligence is revealed and while willful default will normally be a bar to success, there may still be situations where good and sufficient cause might be found to exist.  The court is entitled, if it considers fair and just to do so, to consider the applicant’s prospects on the merits inspite of the default.

The learned Honourable GILLESPIE J went on in Deweras Farm  case (supra) to quote with approval, BEADLE J (as he then was) in the case of du Preez vs Hughs N.O. 1957 R & N 706  (SR) @ 707 that:

“There are three broad considerations which the court will always take into account.

First, the explanation given by the applicant for his default.  Second, the bona fides of the application made to rescind the judgment, and third, the bona fides of the applicant’s defence on the merits of the case …  The court has a very wide discretion in deciding what is, or what is not, sufficient cause for relief.  But as I have said, the circumstances already set out are considerations which are generally taken into account in all application such as this.  Too much emphasis should, however, not be laid on any one of these considerations individually.  They should be  regarded in conjunction with each other and with the application as a whole.  An unsatisfactory explanation for the default may be strengthened by a very strong defence on the merits …” (the emphasis is mine)

It is common cause that the court in fact has a wide discretion whether to refuse or to grant the order sought in the circumstances of a particular case   See also Mereki vs Forrester Estate (Pvt) Ltd 2010 (1) ZLR 351 (HH-191-10)  As correctly put in Challenge Auto (Pvt) Ltd & Ors (supra) and in Sangore vs Olivine Industries (Pvt) Ltd, 1988 (2) ZLR 210 (S);

“One is naturally reluctant to reach a decision which would result in the giving of a judgment against a person without his being heard when he protests that he has a valid defence.  The  factors which the court takes into account in an application for condonation for non-compliance with the Rules were also set out in V Saitis & Co. (Pvt) Ltd vs Fenlake (Pvt) Ltd 2002 (1) ZLR 378 (H) as;

The degree of non-compliance with the Rules;

The explanation thereof;

Prospects of success on the merits;

The importance of the case;

The convenience of the court; and

The avoidance of unnecessary delay in the administration of justice.

There is no doubt that there are hotly contested facts in this case.  As shown at the beginning of this judgment, the parties have traded accusations and counter accusations.  More pronounced, there is the issue of whether the 2nd respondent took 66 days leave and thereafter absented himself from duty leading to his dismissal or, as alleged by him, he was forced to sign leave forms that had already been filled in for him and that he was told by Mr Z. Madonko not to come back to work at the expiry of the 66 days.  There is also the issue of whether or not the 2nd respondent took advantage of the other party’s default to inflate his entitlement and had his award figure calculated at more than double the correct figure, that is to say $1 228,00 per month instead of $652,60 after deduction of all taxes from a basic salary of $737,00.  There was also the claim by 2nd respondent that during his employment, he was never paid his salary at all, which applicant disputes.  Lastly, there is the disputed issue of the period(s) given to the arbitrator in calculating the award figure.

I am convinced that this is a proper case wherein, in as much as there is need for finality in litigation, that need is outweighed in the circumstances by the other equally important need to have the 2nd respondent’s entitlement if any, properly calculated after both parties have been heard and the issues properly ventilated.  I am satisfied for the foregoing reasons that the applicant has shown good cause for this court to exercise is discretion in the applicant’s favour and grant the order sought, minus costs of suit.

Accordingly, I make an order in the following terms:

The late filing of the application under cover of case number HC 823/19 is hereby condoned

Judgment  granted in default in the Labour Court in the matter under cover of  case number LC/B/LRA/352/18; LC/MT/351/18 is set aside.

The draft ruling handed down by the 1st respondent and confirmed in the matter under cover of case number LC/B/LRA/352/18; LC/MT/351/18 is set aside

The matter is hereby referred back to a labour officer for hearing on notice to the applicant and 2nd respondent.

The applicant is hereby directed to file its written submissions for the hearing before a labour officer within ten (10) days of the granting of this order.

No order as to costs.

Messrs Webb, Low & Barry Inc Ben Baron & Partners, applicant’s legal practitioners

Messrs Calderwood Bryce Hendrie & Partners, 2nd respondent’s legal practitioners