Martindale (Pvt) Ltd t/a Lyons v Evans Mutevera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/49/13
HELD AT HARARE 15TH FEBRUARY 2013
CASE NO
JUDGMENT NO LC/H/49/13
---------




IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/49/13

HELD AT HARARE 15TH FEBRUARY 2013		CASE NO LC/H/639/10

MARTINDALE (PVT) LTD					Applicant

(TRADING AS LYONS)

EVANS MUTEVERA					Respondent

Before The Honourable G Musariri, President

For Applicant		Mr R Mutasa, Attorney

For Respondent		Mr E Mutevera, Respondent

MUSARIRI, G:

On 17th October 2011 this Court made an order by default in favour of Respondent.  On 18th October 2011 Applicant filed the present application for rescission of the order.  Respondent opposed the application.

Reasons for default

Applicant’s erstwhile attorney explained the default and reasons therefor.  He was instructed by his senior colleague, who was out of town, to deal with the matter.  This was on Friday 14th October 2011.  The matter was set for hearing by this Court on Monday 17th October 2011.  That same Friday, the attorney got an instruction from the High Court to appear in that Court on the Monday

in connexion with a trial.  He tried to get another attorney to take over but was unable to do so.  The following Monday he again tried to get another colleague but failed to get someone free to take over.   He then tried to handle the two cases by himself.  Evidently he failed to do so.  His actions have been attributed to lack of experience.  This explanation is not implausible.  Is it reasonable?  By the standard of an experienced attorney it is unreasonable.  There was nothing to prevent the attorney simply advising the client to appear in person to explain the predicament and seek a postponement.  From the standard of an inexperienced attorney, well, the explanation is passable.  I will give Applicant the benefit of doubt on this aspect.

Prospects of success

My attention was drawn to portions of the record where Respondent admits the acts constituting the alleged misconduct.  He however tendered an innocent explanation for his actions.  For fear of pre-judging the matter,  I will not venture beyond this peek into the merits.  Suffice to say that I consider that Applicant has an arguable case on the merits.

Conclusion

On the whole, I find that Applicant has made out a good case for rescission of the default order. However Applicant must bear Respondent’s wasted costs because this application was necessitated by the fault of its attorney.

Wherefore it is ordered that,

The default order by this Court on 17th October 2011 be and is hereby set aside; and

Applicant shall pay Respondent’s wasted costs in the sum of US$30.00 (Thirty Dollars).

G.  MUSARIRI

PRESIDENT