Milton Mayaweni v Delta Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/50/2016
HARARE, 22 JANUARY 2016
CASE NO. LC/H/50/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/50/2016

HARARE, 22 JANUARY 2016	  		   CASE NO. LC/H/APP/1000/15

AND 5 FEBRUARY 2016

In the matter between:-

MILTON MAYAWENI				Applicant

And

DELTA BEVERAGES				Respondent

Before Honourable R. Manyangadze, J

For Applicant 		-	Mr T. Nyakunika (Legal Practitioner)

For Respondent		-	Mr G. Chingoma (Legal Practitioner)

MANYANGADZE, J:

This is an application for rescission of a default judgment, upliftment of bar and condonation for late filing of heads of argument, filed on 17 August 2015.

The background to this matter is common cause.  The applicant was employed by the respondent as a Purchasing Clerk.  He was dismissed from employment in March 2015 following disciplinary proceedings in which he was found guilty of misconduct, in terms of the respondent’s Code of Conduct.  The charges involved were “Sub-standard performance of work and Theft/Fraud/Dishonesty”.

On 14 April 2014 the applicant filed an application for review with this court. He sought to set aside his dismissal, alleging a number of procedural irregularities in the conduct of his disciplinary proceedings by the respondent.

In an order handed down on 5 August 2015, this Court dismissed the application for want of prosecution, in terms of Section 19 (3) (a) of the Labour Court Rules, 2006 (the Rules).

The present application seeks a rescission of that default order.

The requirements of an application of this nature are well captured in paragraph 9 of the applicant’s Supplementary Heads of Argument, wherein is stated;

“The legal requirements of an application of this nature to succeed were succinctly set out by BRINK J. in the case of Grant v Plumbers (Pty) Ltd 1949 (2) SA 470.  In that case the learned judge stated that applicant 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.

must be bona fide and not made with the intention of merely delaying Respondent’s claim.

show that he has a bona fide defense to Respondent’s claim.  It is sufficient if he makes a prima faice defense in the sense of setting out averments which if established at the trial would entitle him to the relief asked. He need not deal fully with the merits of the case and produce evidence that the probabilities are in his favour.”

These factors must be taken cumulatively, in order to arrive at an informed decision as to whether the applicant has established a case for the granting of rescission of judgment. In this regard, this court stated, in Air Zimbabwe Holdings (Pvt) Ltd v Moses Mapanda, LC/H/762/14 at page 3 of the cyclostyled judgment;

“A consideration of these factors, taken cumulatively, should show that the appellant has a good and sufficient cause for granting of rescission of judgment.”

In casu, the default was the applicant’s failure to file heads of argument.  This is what led to the dismissal of his application for review for want of prosecution.  The explanation tendered by the applicant for this failure is found in paragraph 11 of his Founding Affidavit, where he avers;

“Because of the financial constraints I am facing as a result of the dismissal from employment, I failed to mobilize the required legal fees to enable my legal practitioners to prepare the Heads of Arguments as required by the Labour Court Rules.”

This averment is repeated in his heads of argument, both the principal and supplementary heads of argument.  In particular, it is stated in paragraph 9 of his principal heads of argument;

“In casu, the Applicant’s explanation for the default was because he had failed to raise the legal fees required by his legal practitioners to prepare and file Heads of Argument on his behalf.  It is humbly submitted that whilst lack of funds by its mere say so cannot be a just explanation for default of compliance with the rules, it is however in the interest of justice and fairness to accept that applicant’s explanation is plausible.”

The papers on record show that the applicant was advised by his legal practitioners on 8 May 2015, of the need to prepare heads of argument in response to the Notice of Response served upon them by the respondent on 7 May 2015.  They also advised him of the fees required.

The default judgment was issued on 5 August 2015.  The applicant became aware of it on the same day.  He then ran around and managed to raise the money required, for his legal practitioners to prepare heads of argument.  Despite having been advised in May 2015, that the heads of argument had a 14 day deadline, nothing shows that he made efforts to raise the money required.  He was galvanized into action by the default judgment, three months later.  The application for rescission was filed on 17 August 2015.  It was prepared and signed for by the legal practitioners on 12 August 2015. That was within 7 days of becoming aware of the default judgment.  So, in 7 days, he was able to raise funds he could not raise in 3 months before he learnt of the default judgment.  This, in my view, seriously detracts from the credibility of his explanation that he was unable to place his legal practitioners in funds.  It does not reflect well on the bona fides of his explanation.

In any case, that explanation pe se, is inadequate for seeking the court’s indulgence for non-compliance with its rules.  If permitted, there may be no limit to the number of litigants who will plead lack of funds for failure to prosecute their cases within the time limits stipulated by the Rules.  This, ordinarily, is a matter between a client and his or her law firm.  The court cannot be unnecessarily burdened with the need to inquire into the operations of law firms, and the communication between them and their clients regarding funds.  I agree with the remarks of CHATUKUTA J in Mubango v Undenge HH 110/2006, wherein she stated;

“The following is the explanation given by the respondent for the late filing of the heads, and I quote paragraph 1 of the heads of argument:

“The present Heads of Argument are being filed out of time because counsel had not been placed in cover in respect of his fees.  Because of the limited time between the time of the payment of the fees and the set down date, it is not possible to file a formal application for condonation and have the same determined before the main cause.  An application for condonation will be made on the set down date”

This explanation was again tendered by Mr Uriri as a reasonable explanation for filing respondent’s heads of argument out of time.  The explanation is totally unacceptable.  The explanation for the failure to comply with the rules should not be for the convenience of the legal practitioner but for the convenience of all the parties and the court. As rightly submitted by Mr Mafusire, the court is now expected to inquire again into the operations of law firms.  This is not the function of the court.”

As submitted by the respondent, the applicant’s papers do not address the issue of the prospects of success.  In the Founding Affidavit, the only averment on that point reads:

“.. I believe I have high prospects of success on the merits.”

The principal and supplementary heads of argument do not address this aspect.  They do not take the point beyond the mere averment that there are prospects of success. No attempt is made to demonstrate in what respect the prospects of success are said to exist.  Infact, in the supplementary heads of argument, the issue is down played, with emphasis placed on the explanation for the default.  This is reflected in paragraph 18 of the supplementary heads of argument, which states:

“It is the Applicant’s submission that the explanation tendered should be given sufficient weight in coming to a conclusion in favor of the Applicant as it has been consistently upheld by the High Court of Zimbabwe that these factors are not individually decisive but are interrelated and must be weighed one against the other; thus a slight delay and a good explanation may help compensate for prospects of success which are not strong.” (own emphasis)”

The underlining in the paragraph, it must be noted, is that of the applicant.  It seems he is shying away from the issue of prospects of success.

The court, therefore, has been disabled from assessing one of the basic requirements to this application, whether or not there is a bona fide defence on the merits.  This entails a look into the prospects of success on the main matter.  The applicant’s submissions create the unfortunate impression that he has no confidence on the prospects of success of the main action, hence his reliance on the explanation for the default.  That explanation has been found to be inadequate.

In the circumstances, the applicant has not shown a good and sufficient cause for the granting of rescission of the default judgment.  The application for rescission cannot be upheld, together with the related relief of upliftment of bar and condonation of late filing of heads of argument.

In the result, it is ordered that;

The application for rescission of default judgment and upliftment of bar and condonation of late filing of heads of argument be and is hereby dismissed.

The applicant shall bear the respondent’s costs.

Mupindu, applicant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners