David Nyamukondiwa v Biddulphs Removals and Storage

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/646/2014
HARARE, 18 AUGUST 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/646/2014

HARARE, 18 AUGUST 2014	    		        CASE NO. LC/H/APP/36/14

AND 26 SEPTEMBER 2014				           XREF. LC/H/517/12

In the matter between:-

DAVID NYAMUKONDIWA					Applicant

And

BIDDULPHS REMOVALS AND STORAGE			Respondent

Before Honourable E. Muchawa, Judge

For Applicant		-	B. Sasvikiro (Trade Unionist)

For Respondent		-	W.L. Chirongoma (Legal Practitioner)

MUCHAWA, J:

This is an application for rescission of judgment.  On the 4th of March 2014, this court heard, in applicant’s absence, an application for condonation of late filing of a notice of response and the quantification matter that was set down.  Applicant seeks a rescission of the judgment in respect to the quantification.

The brief facts are that applicant who was employed on a fixed term contract by respondent was dismissed from employment on a charge of gross negligence in July 2012.  The last such contract was for the period 11 May 2012 to 9 August 2012.  On appeal to this court, applicant was successful.  Respondent was ordered to reinstate him without loss of salary or benefits or alternatively damages in lieu of reinstatement.  Applicant lodged an application for quantification of damages.  Unfortunately applicant defaulted on the date of set down, despite proper service.  The court proceeded to determine the matter and awarded him $198,70 being the wages for the remainder of his contract period.  This was against his claim of $13 239-75 which included allowances, notice pay and damages being three years’ salary.

It is trite that in such an application I have to essentially consider whether applicant has tendered a good and sufficient cause for the default which should amount to a reasonable explanation.  I should also consider the bona fides of the application to rescind the judgment and balance that with the bona fides of the defence on the merits.  In this I will assess the prospects of success on the merits.  It is important to also consider the balance of convenience to the court and the interests of finality in litigation.  (See Stockil v Griffiths 1992 (1) ZLR 172 (SC)

I consider the requirements in such an application hereunder.

Explanation for default

Applicant explains that the notice of set down was misplaced by one of the administrative secretaries.  As a result, the attending officer was not aware of the date of set down.  Applicant is therefore said not to have been in willful default.

Respondent argues that the reason proffered is not a cogent reason for seeking rescission.  I was referred to the case of Saloojee and Anor v Minister if Community Development 1965 (2) SA 135 (A) at 141EE.  It states that there is a limit beyond which a litigant can escape the results of his attorney’s lack of diligence as to hold otherwise might have a disastrous effect upon the observance of the rules of the court.

Though I understand that applicant chose his own legal representatives, I do find that the explanation tendered is reasonable especially in the light that applicant’s representatives are not lawyers.  Applicant however has to pass other hurdles to succeed in this application.

Prospects of Success

Applicant is arguing that though he was on a three months fixed term contract whose clause 10.1 provides that;

“The contract shall expire on the agreed date of termination and there shall be no requirement for notice to be given by either party;”

that he had become a permanent employee through the deeming provisions in section 12 (3) of the Labour Act [Chapter 28:01].  This section provides in the relevant part as follows;

“… Provided that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement with a particular employer exceeds a total of six weeks in any four consecutive months.”

Further it is argued that the court order subject to quantification, LC/H/517/12, which ordered reinstatement without loss of salary and benefits or damages in lieu of reinstatement should be read to mean reinstatement into a permanent position.

Applicant therefore submits that he has good prospects of success in getting a quantification in the amount claimed of US$13 239-75 I was referred to the case of Lifestyle Zimbabwe (Pvt) Ltd v Andrew Mawapo & 295 ORS LC/H/370/10 in support of the need to deem applicant a permanent employee.

On the other hand respondent argues that applicant has bleak prospects of success on the merits.  I was referred to the Supreme Court decisions of Chikonye and Anor v Peterhouse 1999 (2) ZLR 329 (SC) and Magodora and ORS v Care International Zimbabwe SC 24/14.  Both decisions reject the argument that the continuous renewal of fixed term contracts alters them to contracts without limit of time I am bound by these decisions.  In particular the Chikonye Supra case holds.

“further, that the contracts were of fixed duration.  Unless the contracts were renewed by the school, the appellants ceased to be employees.  There was no obligation on the school to offer them permanent positions.”

Applicant cannot successfully base his quantification claim on a position of law that has already been rejected by the Supreme Court.  That position was not argued or put the appeal court.  It is improper to seek to argue this now at quantification stage.

In a quantification, the court is guided by the terms of the order directing that quantification should be done.  Applicant argued too that reinstatement should place him in a permanent position.  There is no legal basis for this argument.  I am guided in this respect by the cases of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (5) at 268A and Standard Chartered Bank of Zimbabwe Ltd v Matsika 1997 ZLR 389.  To reinstate is defined as “that the person concerned will be placed again in his/her former job” or “to place an employee in his position from which he was dismissed and to restore the status quo ante”.

In casu applicant was to go back to his position as a fixed term contract employee.

Consequently I find that applicant has no prospects of success on the merits.

In the interest of bringing finality to litigation, and for the convenience of the court, the application for rescission of judgment is not merited.

Accordingly the application for rescission of judgment is dismissed with costs.

C. KUHUNI ATTORNEYS, Respondent’s legal practitioners