City of Harare v Everisto Rungano & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/204/13
HELD AT HARARE 30TH NOVEMBER 2012
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/204/13

HELD AT HARARE 30TH NOVEMBER 2012	  CASE NO LC/H/401/09

CITY OF HARARE					Applicant

EVERISTO RUNGANO				1st Respondent

STEPHEN KANYERA				2nd Respondent

EMIAS MURWIRA					3rd Respondent

TITUS TAYENGWA					4th Respondent

Before The Honourable G Musariri, President

For Applicant		Ms R Chimhinga, Officer

For Respondents		Mr J Muzangaza, Attorney

MUSARIRI, G:

On 4th May 2010 this Court made a default order in favour of the Respondents.  The order directed Applicant to reinstate Respondents or alternatively pay them damages in lieu of reinstatement.  The order was made by reason of Applicant’s default.

On 18th March 2011 the Court granted Applicant leave to file a belated application for rescission of the earlier order.  On 19th May 2011 Applicant filed the application for rescission. In matters of this nature an Applicant is required

to show good cause in order to obtain relief.  The main pertinent factors are the explanation for the default and the prospects of success.

Default

Applicant’s case was supported by a founding affidavit made by Dr Tendai Mahachi.  He stated that the Honourable H Mucheche made an arbitration award in October 2009, which dismissed Respondents’ claims against Applicant.  At that stage Applicant was represented by a firm of attorneys.  In November 2009 Respondents appealed to this Court against the award.  Applicant’s attorneys failed to file Heads Of Argument.  They also failed to notify Applicant of the date of hearing.   They did not appear at the hearing resulting in the default order made against Applicant.  On 7th June 2010 the attorneys informed them that they did not attend the hearing because they had not been paid.  The long and short of it was that there was a breakdown in communication between attorney and client which led to the default judgment.  Applicant believed, or so they say, that their attorneys would represent them at the hearing.  Though the explanation is unsatisfactory, I find that it is not implausible.  Such lapses in communication are a fact of life in the practice of law.  I shall express the court’s displeasure with Applicant on this score in an adverse award of costs.

Merits

The following facts are apparent.

Respondents first brought this matter to this Court in 2007.  The Court dismissed their claims.  They appealed to the Supreme Court against this

Court’s decision.  On 20th October 2008 the Supreme Court dismissed their appeal.  A written judgment was not availed to this Court.  However a copy of the order is filed of record. The parties in that order are the same as in casu.  The dispute is not apparent from the order but it cannot be substantially different from the one in casu.  On that basis, Applicant argued that the matter is res judicata.  It has been settled by none other than the highest court in the land.  Thus it cannot be re-opened.  I am persuaded that Applicant have an arguable case on the merits.

I have found that Applicant’s explanation for the default is not implausible.  Their case on the merits is arguable. Thus the application was made in good faith.  On the whole I find that good cause has been shown for rescission.

Wherefore it is ordered that,

The order made by this Court on 4th May 2010 be and is hereby set aside; and

Applicant shall pay one-third of Respondents’ costs.

G. MUSARIRI

PRESIDENT