Amon Chagonda & 15 Others v National Foods Operations Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/327/2014
HARARE, 21 MARCH 2014
CASE NO. LC/H/327/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/327/2014

HARARE, 21 MARCH 2014		     	                 CASE NO. LC/H/29/13

& 20 JUNE 2014

In the matter between:-

AMON CHAGONDA & 15 OTHERS				Applicants

And

NATIONAL FOODS OPERATIONS LIMITED			Respondent

Before Honourable L Hove, Judge

For Applicants 	-	 Mr. G.J. Maposa (Legal Practitioner)

For Respondent	-	Mr. A.K. Maguchu (Legal Practitioner)

HOVE J:

This is an application for rescission of Judgment granted by this court on 29 July 2013 dismissing the applicants’ appeal.

On 8 January 2014 the applicants applied for rescission of the default order.

The factors to be considered in an application such as this one are;

length of delay in applying for rescission.

reasons for the default.

prospects of success, and balance of convenience.

Du Preez v Hughes 1957 ZLR 7007

Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210

Simbi v Simbi SC 164/90.

The applicants in casu must therefore give a reasonable explanation of their default.  If it appears that the default was wilful or that it was due to gross negligence, the Court should not come to their assistance.

The explanation given by the applicants for the default in this case in the founding affidavit, is that while the notice of set down was served at the correct address of service as given in their papers, it was however served on a wrong person one Ms C. Chipanga.  The correct person authorized to receive process in the matter was one Ms Mpo Chetsanga.  When the notice of set down was served, Ms Chetsanga had taken two days off work.

In the heads of arguments filed in their behalf, the applicants submitted that they were never aware that service of the notice of set down had been served on them.  The Labour consultants did not advise the applicants of the service.

A point was taken by the Respondents that this explanation about the Labour consultant not advising them was being improperly placed before the court.  It was not the explanation given in the founding affidavit and new facts cannot be placed before the court by way of heads of arguments.

That this is the correct position of law, is trite.  A litigant cannot introduce new facts which are not in the founding papers in their heads of argument.  Evidence must be sworn to in an affidavit by a person who has knowledge of those facts and can properly attest to it.

Even if that evidence were to be found to be properly before the court, (which I do not) it would only serve to show that the explanation being given for the default is not a bona fide one.  If their consultant had lost interest in the matter and neglected to bring to the applicants the service of the affidavit, then the applicants would not have neglected to include this in their founding papers.

As matter stand now, the court is not sure which one of the two explanations proffered is the correct explanation.  The Court is of the opinion that the applicants are not being truthful but manufacturing what they think may pass as a reasonable explanation.

The two explanations even if they were the truthful explanations, are not reasonable explanations.  Firstly it is the applicants who gave the address for service but neglected to include that service was to be served on a specific person at the premises.  They could have given the address of service with the qualification that it would be care of Ms Mpo Chetsanga. They knew that Ms Chipanga shared the same office space.  How was the other side expected to know that service was to be on a particular person if the one giving the address of service neglected to be specific?  How were they to know that the specific person was off work?

It is unreasonable to expect the other side to avoid service on a particular person, unless you had so indicated.  In the circumstances service was properly made at the given address of service.

Secondly, the explanation that their consultant had lost interest is again not a reasonable one.  There is no affidavit from the consultant indicating that this was so.  It only comes up in the heads of argument showing that it is only an after thought by the applicants otherwise they could not have failed to include it in the founding affidavit.

I am not persuaded that there is a reasonable explanation especially because there are no affidavits from either Ms Chetsanga or Ms Chipanga neither is there an affidavit from the consultant.

As argued by the respondent, the applicants cannot attest to facts that they have no knowledge of.  The fact that service was on a day that Chatsenga was off work or that Chipanga accepted service but did not tell Chetsanga is not in the personal knowledge of either of the applicants.

In this regard see the case of Time Bank of Zimbabwe Ltd v Moyo 2002 (1) 121 (H) where the court stated that an affidavit should be deposed by a person who can swear positively to the facts.  There is thus no explanation before the court for the default. Even if I was to bend over backwards and allow the applicants to proceed to argue their matter, they have a hopeless case.

The appeal that they seek to reinstate is improperly before the court.  It was filed out of time no application for condonation was ever made inspite of this having been pointed out by the repondent in the opposing papers filed in response to the application for rescission.

The law requires that the applicants submits, in the application for rescission,  their prospects of success.

Wild Cat (Pvt) Ltd v Tundu Distributors (Pvt) Ltd 1990 (1) ZLR 133 (H).

I do not see how the applicant can overcome the preliminary point raised that the appeal is itself out of time and therefore a nullity particularly as no attempt has been made to apply for condonation of late noting of appeal against a judgment given more that 8 months ago.

On the actual merits of the matter, the applicants again have a very weak case.  The applicants voluntarily signed the agreements to terminate their employment.  No duress or some misrepresentation is alleged to have induced them into signing.  Once it is accepted that they signed to terminate their employment contracts the employer was then not obliged to initiate retrenchment proceedings in terms of the Labour Act.

In the case of

Retrenched Employees of Natbrew v Natbrew SC 121-02

the court stated that

“in other words, if an employer and an employee decide and agree to part, for whatever reasons, and the agreement is in writing, then the retrenchment procedures fall away.  There is no need to go through the steps laid down for retrenchment.”

Further the applicants accepted the benefits in terms of their agreements to terminate their contracts of employment.  They are estopped from reneging on the contracts.  Once they accepted the benefits they waived their rights to challenge the termination.

See the case of Chidziva & Others v Ziscosteel 1997 (2) ZLR 386 (S) where the principle            was        accepted           that            a                                     party waives its rights, if with full knowledge of its rights knowingly abandons those                                                                                                                                                                                                                                                          rights.  In casu, they accepted the benefits in full and final settlement.  I do not believe that they have any prospects of success on the merits.

In the result, the application for rescission of the default order must fail.

I therefore make the following order;

The application for rescission is dismissed with costs.

Scanlen & Holderness, Applicants’ legal practitioners

Dube, Manikai & Hwacha, Respondent’s legal practitioners