Air Zimbabwe Holdings (Private) Limited v Moses Mapanda

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/762/14
HELD AT HARARE 17TH OCTOBER 2014
CASE NO
JUDGMENT NO LC/H/762/14
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/762/14

HELD AT HARARE 17TH OCTOBER 2014		CASE NO LC/APP/H/317/14

& 7TH NOVEMBER 2014

In the matter between:-

AIR ZIMBABWE HOLDINGS (PVT) LTD			Applicant

And

MOSES MAPANDA					Respondent

Before The Honourable R.F. Manyangadze, Judge

For Applicant		G Dzitiro (Legal Practitioner)

For Respondent		S Nyagura (Legal Practitioner)

MANYANGADZE, J:

This is an application for rescission of a default judgment granted by this Court on 25 June 2014.

The respondent was employed by the applicant, and held the senior position of General Manager – Passenger SBU.   In April 2013, he was placed on indefinite leave.  His salary was reduced, and allowances and benefits withdrawn.  He also had his office furniture reallocated to other company officials.

The applicant’s position was that it was facing serious viability challenges, and was taking some company-wide cost saving measures.  Placement of respondent on indefinite leave and reduction of his salary were part of the company-wide cost adjustments, and were not peculiar to respondent alone.

The dispute went through conciliation and arbitration.  In an arbitral award handed down on 29 July 2014, it was ruled that the respondent was constructively dismissed.  The applicant was ordered to pay the respondent outstanding salaries and benefits, plus damages for any loss resulting from the constructive dismissal.

The applicant noted an appeal against the arbitral award with this court on 20 February 2014.  The appeal was set down for hearing on 25 June 2014.  There was no appearance for the applicant.  The appeal was dismissed.  The default judgment prompted the present application for rescission thereof.

That, in brief, is the background to this application.  The requirements for an application for rescission of judgment are well settled.  The court was referred to the case of Stockill v Griffiths 1992 (1) ZLR 172, were the requirements were set out as:

the  reasonableness of the applicant’s explanation for the default

the bone fides of the application to rescind the judgment

the  bona fides of the defence on the  merits of the case

A consideration of these factors, taken cumulatively, should show that

the applicant has a good and sufficient cause for granting of rescission of judgment.  See also Songoru v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 and Roland & Anor v McDonnel 1986 (20 ZLR 216 (S).

On the question of whether the applicant was in wilful default, the explanation proferred was that the applicant’s legal practitioner was unable to attend court due to her husband’s sudden illness, on the morning of the court day.  In a Founding Affidavit deposed to by the legal practitioner, Mrs G Dzitiro, her husband developed complications from a medical procedure he had undergone 5 days before, described as sphincterrotomy.  She had to rush him to the casualty rooms at West End Hospital.

A note by Specialist Surgeon Mr E Chitsaka was attached.

I must point out that the filing of a Founding Affidavit deposed to by the applicant’s legal practitioner was irregular.  The applicant itself must depose to the Founding Affidavit.  The legal practitioner then weighs in with a Supporting Affidavit.  There could be further Supporting Affidavits if necessary, such as the one deposed to by the legal practitioner’s husband.

However, the Founding Affidavit was permitted as an exceptional case, in that it contains averments which are within the exclusive and peculiar knowledge of the legal practitioner.  These averments relate to the default in question.

In his response, the respondent mainly took issue with the applicant’s failure to communicate the emergency that befell the legal practitioner on the morning of the court day.  There were further averments that the applicant’s legal practitioner attempted to communicate telephonically with the respondent’s legal practitioner.  There was disagreement as to the veracity  of these averments.

It seems to me applicant’s legal practitioner failed to communicate the emergency that confronted her.  If she made an attempt to so communicate, such an attempt was not done with sufficient diligence.

What is however, significant in this case is that the reason for the default has not been impugned.  The fact that she was seized with a medical emergency involving her husband has not been disputed.  What has been put in issue is the manner in which she handled that emergency, in terms of timeously informing her professional colleagues.

In the case of Alpha Media Holdings (pvt) Ltd v Berlinda Moyo, LC/H/418/2014, this court had to consider the plight of a legal practitioner, Ms Linda Cook, who found herself in more or less similar circumstances.  She sought  rescission of a default judgment occasioned by her failure to file Heads of Argument in time.  The explanation for the default was that she was under stressful personal circumstances, as she had to assist her critically ill father who needed specialist medical treatment.  She however, took full responsibility for the resultant oversight to timeously file Heads of Argument.  She deposed to a Supporting Affidavit wherein she explained the serious personal problems that led to her inadvertently failing to file Heads of Argument within the required time.

In granting the application for rescission of judgment, the Court remarked:

“In her Supporting Affidavit, Ms Cook explains that at the material time she had serious personal problems to attend to which led to her inadvertently failing to file the Heads of Argument timeously.  These problems mainly had to do with her critically ill father, whom she had to personally attend to during his treatment for cancer...

It is significant to note that the averments in the legal practitioner’s affidavit are not disputed by the respondent.  The legal practitioner, who is very senior with 30 years in practice, has taken full responsibility for the default.  She however, pointed out that the default was not deliberate as it was occasioned by the distressful situation she found herself in.”

In casu, the applicant’s legal practitioner found herself in a distressful

personal situation, her husband’s sudden illness.  That much, it appears, has not been contested. However, the explanation surrounding the attempts to communicate is rather murky.  Most probably, this aspect was inadvertently overlooked, as attention was focused on the hospital situation.  In my view, it was better to accept full responsibility for the oversight rather than attempt an unclear, and unconvincing explanation.

Be that as it may, I am inclined to adopt the same approach I made in the Alpha Media Holdings case, supra and excuse the negligence involved.  In this regard, I associate fully with the sentiments expressed by MAKARAU JP (as she then was) in the case of Chimpondah & Another v Muvami  2007 (2) ZLR 326.  The learned Judge stated that, at p 327:

“It is trite that there is a certain degree of negligence in failing to observe the rules of the court.  An application for condonation such as the one before me, is therefore, an application for excusing the negligence of the offending party and the degree of such negligence then becomes a factor, together with other factors that will ensure that at the end of the day justice as between the parties prevails.”

The Judge further stated, at p 328:

“I used the discretion vested in me to allow the late filing of the heads of argument because of the need for the parties to have a final judgment on the matter in view of the spate of litigation that they have already been involved in over the same matter.  Further, in my view, the point raised by the respondent in his defence is an interesting and important legal point concerning the definition of instalment sales of land under the Contractual Penalties Act [Chapter 8:04].

It is my further view that, when considering an application for condonation for the late observance of a rule of procedure before default judgment is given in the matter, the court should lean towards granting rather than refusing such application.  I am, however, not suggesting that, prior to judgment, condonation should be granted for the mere asking.  The applicant still has to satisfy the court that there is good cause to excuse the negligence and grant the indulgence.”

In the present case, regardless of the oversight in communication, which

oversight the court has censured as undesirable, the court accepts the explanation for the default.  The circumstances surrounding the default, it has already been pointed out, have essentially not been disputed.

That is as far as the explanation for the default is concerned.  There is the other aspect, the bona fides of the defence on the merits.  The applicant averred that it has good prospects of success on appeal.

The court on appeal will be considering a peculiar form of dismissal, constructive dismissal.  Some pertinent issues have been raised in relation to the dismissal.  One such issue is the period the respondent took to tender his resignation, after he was placed on forced leave.  It was not until after a period 2 months that he resigned.  The applicant argued that the respondent could not have stayed for 2 months if he found the working environment intolerable.

The other issue is that the respondent continued to enjoy the use of the applicant’s assets, including the motor vehicle that was allocated to him.  He refused to surrender these assets after his resignation.

These are significant issues the appeal court will have to pronounce itself on in this matter.  In my view, it is not in the interests of justice that the matter be disposed of on the basis of a default judgment, without looking into these issues.  Taking all factors into account, it is just and proper that this matter be disposed of on the merits.

It is accordingly ordered that;

The default judgment granted by this Court on 25 June 2014 be and is      hereby rescinded.

The Registrar shall set down the appeal filed under Case No LC/H/151/14 at the earliest available date.

Cost s shall be in the cause.

Mutumbwa Mugabe & Partners, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners