Joseph Vhenge v Traffic Safety Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/170/23
HARARE, 26 May, 2023
CASE NO. LC/H/245/22
AND 19 JUNE, 2023
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE
LC/H/170/23
HARARE, 26 May, 2023
AND 19 JUNE, 2023

JUDGMENT NO.
CASE NO. LC/H/245/22

In the matter between:-

Joseph Vhenge
Appellant
Versus

Traffic Safety Council
Respondent

Before The Honourable L. Hove, Judge:

For Appellant : Ms. R.T. Musariri
For Respondent : Mr. O. Kondongwe

HOVE J:

This is an application for condonation for late filing of an application for recession of default judgment and an application for rescission of default judgment.

Application for condonation

The applicant was employed by the respondent as a traffic officer from 2006 to December 2013. He was dismissed for misconduct following disciplinary proceedings.


He filed an appeal and a review application with the labour court. On the hearing date he was in default and a default order was entered against him. He applied for recession of the default order. This application for rescission was filed out of time. The application was dismissed for being improperly before the court. He had not made any application for condonation.

The applicant now seeks condonation for the late filing of the application for rescission. The default judgment being sought to be rescinded was entered on the 7th of September 2020.

Background to the default order:

After filing the application for review and an appeal the matter was set down for hearing. The sheriff served the notice of set down by affixing the notice on a window at the applicant’s given address of service. In spite of this proper service the applicant was in default on the hearing date and a default judgment was entered against him on 7th September 2020.

The applicant did not bother to check on the progress of his matter until the following year, about 10 months later on 9 June 2021 when he says he then decided to check on the progress of his appeal and review filed with the court.

Analysis:

In applications of this nature, the Court must consider several factors which include but are not limited to (1) the extent and explanation for the delay (2) whether or not the default was willful. (3) Prospects of success on the merits should the application be granted (4) convenience to the court and to the other side. See in this regard the case of Grant v plumbers P/L 1919 (2) SA 470 where the court stated that;

“I am of the opinion that an applicant who claims relief… should comply with the following;


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(a) He must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence, the court should not come to his assistance.

(b) His explanation must be bona fide and not made with the intention of merely delaying the plaintiff's case.

(c) He must show that he was a bona fide defense to the plaintiffs claim. The explanation for the delay

The explanation is that the delay was because he was unaware that the matter had been heard and that a default judgment had been entered. In other words, he was unaware of the pending trial. The reason why he was unaware of the existence of the default order is that he had not been aware of the date of hearing. Further, it was submitted that he had been ill advised by his erstwhile legal representative that he was within the prescribed time frames.

There was proper service of the notice of sat down on the given address of service. It is therefore through tardiness on his part and negligent management of his court case that he was unaware of the date of set down. He only has himself to blame.

The explanation is unreasonable. The sheriff affected proper service and cannot be blamed in any way. His failure to know of the set-down date was due to his lack of diligence. He was the dominus litis and must have diligently pursued his court case. The law is for the vigilant and not the sluggard. The applicant was happy to sit on his laurels the whole time without following the matter to its proper course. He simply took a cavalier approach. His lack of vigilance cannot be regarded as a reasonable explanation for the delay.

In the case of **Uzande v Katsande 1988 (2) ZLR 47**, the court stated that an allegation by a litigant that he was unaware of a pending trial would justify restitution only if he could establish a supremely just cause of ignorance free of all blame whatsoever. See also the case of Stewart’s Assignee v Wall’s Trustees & Ors (1881) 3 SC 243. In casu no supremely just cause has been shown.

As for the reason that he was misled by his lawyer, the courts have on diverse occasion stated that the erstwhile lawyer should file an affidavit explaining the circumstances of the delay. There is no affidavit from the erstwhile lawyers.

Was he in willful default?

The applicant has approached the court without a reasonable explanation for his default. He lacked diligence as the dominus litis in pursuing this matter and his lack of a reasonable explanation shows that his default was willful or at the very least, it was due to a gross lack of diligence.

Prospects of success

The applicant's prospects of success on the merits are not very bright. The courts have stated that an employee must, escape the consequences of his misconduct conduct the disciplinary proceedings. See in this regard the case of Air Zimbabwe v Mnensa SC 89/04.

The applicant in casu admitted he was guilty of gross misconduct and dishonesty in the performance of his duties. It was found that he was in the habit of passing students who would have failed driving test and failing those who would have passed but refused to pay a bribe. These findings were made at the disciplinary hearing level and on appeal. These factual findings cannot be interfered with unless it can be shown that there was gross unreasonableness in the findings of facts. There have not been any such allegations. The applicant’s prospects of success are therefore poor.

Balance of convenience

It is prejudicial to the respondent to have to defend this matter which for the second time the applicant brought and failed to diligently prosecute. It is also not convenient to the court to reopen a matter where the prospects of success are poor.
 Having weighed these factors, it is my finding that the application for condonation is without merit and must be dismissed with costs.

Order:

The application be and is here by dismissed with costs.
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