Fawcett Security Operations (Pvt) LTD V MARK Murombedzi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/653/16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/653/16

CASE NO. LC/H/APP/307/16

HELD AT HARARE

ON 14 SEPTEMBER 2016 & 21 OCTOBER 2016

BEFORE HONOURABLE MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

FAWCETT SECURITY OPERATIONS (PVT) LTD		APPLICANT

AND

MARK MUROMBEDZI						RESPONDENT

For Applicant							Mr. I.H. Chiwara

For Respondent							Mr. P. Mahembe

MURASI J.,

This is an application for rescission of a default judgment issued by JUSTICE CHIDZIVA on 12 February 2016. The facts of the matter are common cause. On the date of the hearing, that is 12 February 2016, both parties did not attend the hearing. It is also common cause that the respondent had not received notice of the hearing. However, applicant had been served through its erstwhile legal practitioners. The Court proceeded to grant a default judgment in the circumstances. Applicant thus applies for the rescission of that default judgment. I should also mention that applicant has since changed its legal practitioners and is now represented by Messrs Coghlan, Welsh & Guest.

Mr. Chiwara, for the applicant, stated that he was going to abide by the documents filed of record including the heads of argument. He submitted that the reason for applicant’s non-attendance was that the instructed Counsel by applicant’s erstwhile legal practitioners had not received the documents forwarded to him. He further submitted that the affidavit from Advocate Zhuwarara showed that this was caused by administrative problems at the Chambers. Mr. Chiwara further pointed out that Advocate Zhuwarara would not have wilfully refrained from attending at court. It was further stated that the record showed that applicant has shown an interest in pursuing the matter. It was further argued that there must be evidence of wilfulness which was not present in casu. Mr. Chiwara relied on precedent to support this submission. As to the bona fides of the application, it was stated that applicant has been pursuing this matter which shows that it was intent on seeing that the matter was finalised. He further argued that the applicant had prospects of success in the main appeal as it was evident that the arbitrator had interfered with the hearing officer’s discretion to mete out a penalty of dismissal. Mr. Chiwara submitted that the arbitrator had not shown that the hearing officer’s decision was marred by malice or unreasonableness.

Mr Mahembe, for the respondent, submitted that the application was without merit. He further stated that the explanation tendered was not reasonable and thus not acceptable. Mr. Mahembe further argued that it was unreasonable to expect the Court to accept that the brief had gone missing. In any event, he argued, either the applicant or the instructing counsel should have attended at court which they did not. Mr. Mahembe further submitted that the law protected the vigilant and not the sluggard. It was further pointed out that the applicant was seeking the Court’s mercy for infractions caused by its legal practitioners who had not shown diligence in handling the matter.

It is trite that for applications of this nature to succeed, there should be ‘good and sufficient cause’. The phrase ‘good and sufficient cause’ has been construed to mean that the applicant must:

(a) give a reasonable and acceptable explanation for his/her default;

(b) prove that the application for rescission is bona fide and not made with the intention of merely delaying the other party’s claim; and

(c) show that he/she has a bona fide defence in the matter. ( See Songore vs Olivine Industries (Pvt) Ltd 1988 (2) ZLR 610.)

Applicant has submitted that its non-attendance at court on 12 February 2016 was not wilful as Advocate Zhuwarara, who had been briefed, did not get the papers addressed to him and therefore was not aware of the date of the hearing. Advocate Zhuwarara confirms this position in his affidavit. That a document may go missing or misfiled is a practice that is reasonably expected to happen. It is unfortunate that such important documents should go missing at the Advocates’ Chambers. In certain decided cases, for example, KM Auctions (Pvt) Ltd vs Samuel & Others S 15/12, the Supreme Court held the view that the sins of the legal practitioner can be visited on the litigant as it is the litigant who would have chosen the legal practitioner. Can this be applied to this matter? Applicant had chosen Messrs Kantor & Immerman, who had in turn briefed Counsel. The documents forwarded to Counsel did not arrive at the intended destination. Can this bungling be taken to be applicant’s fault? Hardly. Clearly there is an element of negligence as the instructing legal practitioner should have made a follow-up with Advocate Zhuwarara to confirm his receipt of the documents and that he was aware of the court date. This they did not do. I am of the view that the erstwhile legal practitioners were indeed at fault but that this negligence cannot be extended to affect the applicant. To that extent the Court finds that the explanation tendered is reasonable and thus acceptable.

The next rung to be considered is whether the application is bona fide and not made merely to delay the claim. The evidence shows that applicant has persistently followed up on the matter. Default judgments have been issued in the past and applicant successfully applied for their rescission and such applications were granted. Were these applications made mala fides? It is my view that a finding in this respect would be properly made when consideration is made of the next point as to whether there are prospects of success in the main matter.

The last issue to determine is whether there are any prospects of success. Mr. Chiwara pointed to the erroneous decision by the arbitrator to alter the penalty of dismissal as being one of the issues pointing to the fact that applicant had prospects of success. However, during oral submissions, Mr. Mahembe pointed out that applicant seemed intent on harassing the respondent as it had paid the money claimed in full. The Court inquired of Mr. Chiwara whether this was the position as it clearly pointed to an issue of peremption. Mr. Chiwara stated that he did not have such instructions. The Court requested Mr. Mahembe to file the evidence with the Court. The evidence filed showed that an amount of $15 898-18 was paid by the Deputy Sheriff on 16 December 2010 into the account of Kwenda & Associates who were representing the respondent. Kwenda & Associates wrote to applicant’s erstwhile legal practitioners, Kantor & Immerman on 12 January 2011 confirming receipt of the amount in question. Messrs Kwenda & Associates further made the following inquiry:

“In view of developments, we kindly request your clarification on which applications you will be proceeding with.”

This appears to be an inquiry as to whether there still was any dispute as the applicant had settled the matter. A further question is why then has applicant been pursuing the appeal when it paid the full amount some five (5) years ago? In my view, this amounted to peremption. Peremption is a common law principle where a litigant who has acquiesced in a judgment cannot appeal. There must be conduct which must show that the litigant intends to abide by the judgment. It has not been alleged that the payment could have arisen out of fraud or undue influence. It has been held that at common law, a voluntary and unconditional payment under a judgment perempts the right of appeal. In casu, applicant has since paid the full amount to the respondent. The question that arises is, what then does the applicant want the Court to decide on appeal when it has shown its intentions to abide by the judgment? Is applicant not perempted from appealing? It is my view that applicant is perempted from appealing. This therefore means that there are no prospects of success and the application must fail on that score.

In conclusion and foe the aforestated reasons, the application for rescission of judgment, being devoid of merit, is accordingly dismissed with costs.

COGHLAN, WELSH & GUEST- Applicant’s legal practitioners

MANGWANA & PARTNERS- Respondent’s legal practitioners.