Church of Jesus Christ of Latter Day Saints v Godfrey Munyamana

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/670/14
HARARE ON 11th SEPTEMBER , 2014
CASE NO. LC/H/747/11
AND 10 TH
JUDGMENT NO. LC/H/670/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/670/14

HARARE ON 11th SEPTEMBER , 2014			             CASE NO. LC/H/747/11

AND 10TH OCTOBER, 2014

In the matter between

CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS	–	APPLICANT

And

GODFREY MUNYAMANA					-	RESPONDENT

Before The Honourable L.F. Kudya, J

For Applicant   :	Muzembe (Legal Practitioner)

For Respondent:	Magaya (Legal Practitioner)

KUDYA J,

This matter was set down as an application for rescission of a default judgment granted in the Respondent employee’s favour against the Applicant employer.

On the set down date it was brought to the Court’s attention that the employer had withdrawn the application. On the same date at the set time the employer did not appear on the basis of the withdrawal. The employee’s representative however tuned up and stated that whilst he acknowledged the withdrawal notice he had observed that the employer had not tendered the wasted costs.

Consequently he requested to appear before the Court and present argument on the question of costs. The matter was stood down briefly to allow the Clerk to call the employer’s lawyers to attend and respond to the issue of costs raised by the employee. It is in that spirit that Counsels for both parties ended up before this Court presenting oral arguments on the question of costs. This judgment therefore primarily addresses the question of costs following the withdrawal of the rescission application.

The brief background to the matter is that following the noting of an appeal by the employer in a matter where it was aggrieved by a labour decision made in favour of the employee the employer failed to file its Heads of Argument on that appeal timesouly. It was consequently barred in terms of the Labour Court Rules. The matter was however set down for argument where the issue of the bar was raised.  The employer was given the chance to explain its default. After explaining the Court ruled that the explanation was not sufficient hence endorsed the bar. It then went ahead and heard the matter on the merits consequently making its decision an appealable decision if the employer was dissatisfied by it.

Instead of appealing against the decision in the matter about the bar the employer went ahead and filed a rescission of judgment application to that end. The employee’s lawyers advised the employer’s lawyer about the impropriety of the route that they had taken but they persisted in the application. The rescission application was consequently set down for hearing. However before the hearing the employer filed with the Court and served the employee with a notice of withdrawal of the rescission application. By that time the employee had briefed Counsel to argue the matter and incurred expenses for the preparation for the arguments.

However, because the matter had been withdrawn the employer took it that it was up to the Court to make an order of costs if it deemed that fit in terms of Rule 20(2). As earlier stated it is the costs question that now stands to be decided.

The employee maintains that he is entitled to costs on a legal practitioner basis because the employer’s persistence with the defective procedure occasioned it to incur Counsel’s costs. To that extent employee tendered a document which demonstrated clearly that the briefing was done well before the receipt of the withdrawal notice. In response the employer maintained that costs on an ordinary scale would suffice as in its view it is the Court which occasioned costs by its refusal to grant it reprieve on the default and bar issues. Employer also challenged the employee for not asking it to tender costs.

A reading of submissions on record demonstrates clearly that the loss incurred by the employee was at the behest of the employer. This explains why after a realization of the folly of using the rescission procedure the employer turned round to now withdraw the case. It therefore goes without saying that the employer made its bed and it must therefore lie on it. There is no other cogent evidence other than what is on record which shows clearly that the legal practitioner’s costs are not justified on this case. The Court is therefore satisfied that this is a good case where it should endorse the withdrawal of the rescission application and order that employer pays costs on a legal practitioner basis.

IT IS ORDER THAT

Applicant employer having withdrawn the application for rescission of judgment the application for withdrawal be and is hereby allowed with Applicant paying to the Respondent employee wasted costs on a legal practitioner client basis.

Coghlan & Welsh – Applicant’s legal practitioner

Mungeni & Muzondiwa – Respondent’s legal practitioner