Douglas Kuruma and Others v Mazowe RDC

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 09 JULY, 2024
JUDGMENT NO LC/H/304/24
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IN THE LABOUR COURT OF ZIMBABWE HARARE,	09 JULY, 2024

AND 17 JULY 2024

In the matter between:-

JUDGMENT NO LC/H/304/24

CASE NO LC/H/705/21

DOUGLAS KARUMA AND OTHERS	APPLICANTS

AND

MAZOWE RDC	RESPONDENT

Before the Honourable Kachambwa J

For the Applicants:	Mr Mudzuri (Legal Practitioner)

For the Respondent:	Mr Nhokwara (Legal Practitioner)

KACHAMBWA, J:

The Application

This is an application for rescission of a default order. At the end of the hearing the application was granted. The respondent subsequently asked for reasons for the decision of the court. So here be they.

The Background

The applicants are former employees of the respondent. Their employment contracts were terminated and they challenged the termination. The matter was taken before a designated agent who confirmed termination for all but two

of the employees. The decision was appealed to the Labour Court. The appeal was upheld. The respondent did not reinstate the applicants. They approached the designated agent seeking that the respondent be ordered to reinstate the applicants. The respondent raised the preliminary issue of res judicata, arguing that the designated agent had already dealt with the matter. The designated agent held that the matter of reinstatement was a new matter which he could hear. It was not res judicata. The respondent appealed this ruling. The appeal resulted in a default judgment for the present respondent.

The Default Judgment

The default judgment was caused by the fact that service of the notice of hearing was served at the former address of the applicant’s representative. The applicants were therefore not aware of the set down date. The change of address was notified to the registrar but was not copied to the respondent. The registrar was clearly in error by serving the notice on the old address. The service was a nullity. Therefore on that score alone the default judgment would not stand.

The default was not wilful. The default judgment is dated the 22nd of September 2021. The applicants discovered it on the 18th of November 2021 when they were following up on the set down date for the matter. This application for rescission was filed on the 16th of December 2021. Thereafter the matter has taken long to be decided because the applicants have not been diligent in pursuing the process. They sat back instead of chasing up on the set down of the matter.

Application Opposed

The application was opposed. The respondent argued that the notification for change of address did not comply with the rules. (It was not served on the

respondent). Further, the respondent argued that the notice of set down cause of the default order should have been attached to the application so that an inquiry into its service by the Sheriff would be made. There was also no evidence attached to show that indeed the applicant’s representative was now located at a new address. A lease agreement was said to be such evidence.

The respondent also opposed the application on the technical grounds that the applicants had made bold claims that they had prospects of success and yet they did not attach the judgments of the arbitrator and the designated agent nor the appeal by the respondent which appeal they were opposing.

Respondent Invited To Address First

After reading the papers filed of record the court was of the view that the application had merit despite the irritating delay in prosecuting it. It had been filed fairly expeditiously. The question of change of address could not be challenged. The issue of res judicata appeared to be an interesting legal point that needed to be dealt with. The delay in finalisation could be met by awarding costs against the applicants. The respondent insisted in opposing the application. It argued that there was need for finality in litigation and the delay by the applicants was not justified. The matter was only set down for hearing by the registrar without the applicants pushing for set down. This had delayed the finalisation of the matter by almost two years. Such a long delay was said to disqualify the applicants from the lenience of the court.

On the other hand the applicants accepted that the delay in finalising the matter could be recognised by awarding costs to the respondent. It would be adequate censure of the applicants. It was also argued that labour matters should not be decided on technicalities. Further the delays were said to be caused by counsel rather than the litigants. That being so it was said to be not good to allow this to visit the clients.

The Law

In an application for rescission of a default judgment/order the court considers the following;-

the reason for the default, whether it was wilful or not. Kodzwa v Secretary for Health & Anor 1999(1)ZLR 313 at 316.

the bona fides in seeking the rescission, whether it is being done with a good intention or whether it is just for delaying the finalisation of the matter or even to annoy the other party. Chengeta NO & 3 ors v Tabana HH23/2018

the prospects of success in the intended main action for which rescission is sought

the diligence with which the applicant has prosecuted the application, whether after knowing of the default the applicant quickly approached the court.

it is not preferable to decide labour cases on a technicality. Dalny Mine v Banda 1999 (1)ZLR 220

there is need for finality in litigation, particularly in labour matters as parties need to organise their livelihoods.

the law sits in the corner of the vigilant and not the sluggard.

rescission is at the court’s discretion which discretion must be exercised

judiciously.

the factors are considered cumulatively. Stockil v Griffiths 1992(1)ZLR 172(S)

The Arguments

The  respondent’s  argument  is  that  the  applicants  do  not  deserve  the

rescission. Firstly the explanation for delay is not supported by documents like

the notice of set down that was served at the previous address. For this reason it was argued that the explanation is not reasonable for this and other reasons. It is a bold allegation. Secondly it was argued that the delay in prosecuting the application since it was filed leaves a lot to be desired in that the applicants left it to the registrar instead of pursuing their application. It stayed upwards of two years until the registrar set it down for hearing. Although the duty to set down is with the registrar the applicants were expected to chase up their application. The respondent interpreted the lackadaisical approach to mean lack of confidence in their case and therefore tatamounting to an application in bad faith.

On the prospects of success the respondent did not see the prospects because the respondents had not attached the decisions that were at the centre of the application.

On the other hand the applicants said that they had a good case that deserved the rescission. They argued that the default was not wilful. The applicant’s representative had moved offices and that was known by the registrar. Further the court was also aware. Therefore the default was given in error in reality. They also argued that they had good prospects of success in the main case.

As for the bona fides of the application it was argued that the applicants had persistently and vigorously pursued their case.

On the issue of the delays in following up on the case it was argued that it was the fault of the representative and it should not be allowed to visit the clients. It was also argued that the applicants were the ones who stood to lose rather than the respondent and therefore they could not be said to lack good faith in the application. They had a decision in their favour and therefore they were the ones to lose. The respondent would be benefiting on a technicality when it was the one that was resisting a ruling in favour of the applicants. The case needed to be dealt with on the merits.

Analysis

The reason for default is not deniable. That the respondent was not served with the notice of change of address does not invalidate the change. The notice was filed of record and known to the registrar. The default is not wilful. The explanation is therefore reasonable. After finding out about  the default judgment the applicants did not delay in applying for rescission either.

The applicants had a decision in their favour both in terms of reinstatement and in terms of the matter on appeal leading to the default judgment. The applicants also stood to lose if the default judgment was allowed to stand. The respondent would win on a technicality. In the circumstances it surely could not be said that the applicants lacked good faith in their application. They had persistently pursued their matter and being on the winning end bad faith is the last thing that could be said about this pursuit.

On the prospects of success the applicants have an arguable case. In any case it is important that the matter be decided on its merits for the sake of clarifying the position of the law for the benefit of everyone.

Coming to the issue of the lackadaisical approach this cannot be denied when regard is had to the time that it took to have the matter set down. However it is also the duty of the registrar to mero motu set down matters. Nevertheless a diligent litigant would follow up to ensure that his/her matter is expeditiously dealt with. He should not leave the matter entirely in the fate of the counsel. The applicants were expected to follow up rather than to go to sleep for two years.

The lack of diligence by the applicants can be met by an order of costs against them. In the circumstances it is more important that the case be decided on the merits rather than on a technicality. It is a case that is of importance to the

labour law. We should not lose the opportunity just because of technicalities and matters that can be cured otherwise.

Disposition

In view of the foregoing the application for rescission is granted. It is held that:-

The application for rescission of default order granted under LC/H/512/2022

be and is hereby granted.

The order granted under LC/H/512/2022 be and is hereby rescinded.

The registrar shall reset the matter for hearing.

The applicants be and are hereby ordered to bear the respondent’s costs.