Munyaradzi Guvamombe v Consolidated Farming Investments Limited t/a Farm & City Centre

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/577/2016
HARARE, 11 JULY 2016
& 23 SEPTEMBER 2016
CASE NO LC/H/APP/266/2016
---------


IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/577/2016

HARARE, 11 JULY 2016 &				CASE NO LC/H/APP/266/2016

& 23 SEPTEMBER 2016

In the matter between

MUNYARADZI GUVAMOMBE						APPLICANT

Versus

CONSOLIDATED FARMING INVESTMENTS				RESPONDENT

LIMITED t/a FARM & CITY CENTRE

Before the Honourable E T Muchawa J

For the Applicant	M Mtlongwa  (Legal Practitioner)

For the Respondent    Mrs C N Mapfidza  (Legal Practitioner)

MUCHAWA J:

This matter is an application for rescission of judgment.

On 27 January 2016, this court granted an appeal in favour of the respondent, in default of the applicant.

The applicant is a former employee of the respondent. He was employed as an assistant accountant when in or about August 2014, he was charged of misconduct in terms of the Labour (National Employment Code of Conduct) Regulations 2006. The charges were of any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract and theft or fraud. He was found guilty by the disciplinary body and dismissed from employment. His appeal to the appeals authority was dismissed. Disgruntled, the applicant ended up before an arbitrator. The arbitrator reversed the internal findings and ordered the applicant’s reinstatement.

The respondent noted an appeal before this court. Such appeal was set down for hearing on 20 January 2016. The applicant did not attend such hearing despite proper service of the notice of set down, hence the default judgment. The applicant wishes to have that default judgment rescinded.

The requirements in an application for rescission of a default judgment were set out in the case of Stockil v Griffiths 1992 (1) ZLR 172 (SC). The factors which are taken into account in deciding whether a default judgment should be rescinded are:

“(a)	the reasonableness of the applicant’s explanation for the default.

(b)	the bona fides of the application to rescind the judgment and

(c)	the bona fides of the defence on the merits of the case and whether the defence carries some prospects of success.”

I turn to apply the law to the facts of this matter.

Explanation for the default

The applicant explains that on 18 January he got a call from his erstwhile legal practitioner to attend at his office and he did so on 19 January and was advised that the law firm was renouncing agency as a result of a split in the firm. He was further advised of the set down of his matter on 20 January.

The applicant claims that his lawyer advised him not to attend court on 20 January as the matter would be postponed.

It is further explained that the applicant then got a notification from the Labour Court relating to collection of a court order on an unstated date. He seems to have approached his lawyer who had since renounced agency for further advice and only approached the Labour Court on 3 February 2016.

Upon approaching his erstwhile legal practitioner, the applicant claims to have been handed over his file and asked to pay $150-00 in order to get the prepared heads of argument.

The applicant’s erstwhile legal practitioner has filed an affidavit. He confirms he was representing the applicant until 19 January 2016 when he renounced agency. He further confirms having knowledge of 20 January as the date of set down. He however claims not to have been able to contact the applicant since December 2015 and not having had any further instructions after the filing of the notice of response.

The respondent argues that the applicant has merely sought to lay the blame for his non-appearance on his former legal practitioners and that is not enough.

I have not received an explanation as to the applicant’s non-appearance at the hearing despite knowledge of set down and awareness that his erstwhile legal practitioners had renounced agency. The affidavit of the erstwhile legal practitioner does not support the applicant’s version of events as to non-appearance.

I have not received any explanation regarding the variance between the affidavits. The impression created is that there is some information the court has not been told.

The case of Friendship v Dick HH 128-13 sets out my position. It states:

“Apart from an unsubstantiated assertion that the applicant’s erstwhile legal practitioners are to blame no evidence has been tendered to show what the applicant himself did to protect his interests.”

The explanation given for the default is not reasonable as the applicant did nothing to protect his interests. The case of Emmanuel Mpofu v Runde Rural District Council LC/MD/07/13 the applicant wishes to rely on is distinguishable. Therein the applicant approached the Registrar of the Labour Court for a postponement. In casu the applicant did nothing. He did not even heed the notification to collect the default order on the 27th and only approached the Labour Court on 3 February.

Prospects of Success

The applicant argues that he has high prospects of success in his defence to the appeal.

In the appeal the respondent avers that the arbitrator should have considered that the applicant had obtained alternative employment before his dismissal and therefore repudiated his contract.

Secondly the arbitrator is alleged to have erred by holding that the dismissal penalty was harsh and altering that to reinstatement or damages in lieu of reinstatement.

It is averred that the disciplinary hearing was both procedurally and substantively fair.

The applicant argues that the repudiation argument is irrelevant as it was not argued before the arbitrator.

All the other grounds are dismissed as baseless as they are alleged not to indicate the areas and particulars in which the arbitrator erred.

The respondent counter argues that a point of law can be raised at any time during proceedings and even for the first time on appeal.

The general rule set out in Muchakata v Nethrburn Mine 1996 (1) ZLR 153 (SC) is that a question of law may be advanced for the first time on appeal if its consideration involves no unfairness to the party to whom it is directed.

The rationale for allowing issues of law to be raised at any time is to enable a court to have all the information, even at a very late stage so that it is enabled to make a proper decision. Zimasco (Pvt) Ltd v Marikanoi SC 6-16.

In Austerlands (Pvt) Ltd v Trade & Investments Bank & Ors SC 92-05 CHIDYAUSIKU CJ sets out that a court of appeal is disinclined to allow a point to be raised for the first time before it unless:

“(i)	  the point is covered by the pleadings,

(ii)  there will be no unfairness to the other party,

(iii)  the factors are common cause or well-nigh incontrovertible; and

(iv)  there is no ground for thinking that other or further evidence will be produced that

could have affected the point.”

In casu the point is covered by the pleadings and the fact is well-nigh incontrovertible as there is e-mail correspondence on record page 64 confirming that the applicant was employed by National Seeds with effect from 24 November 2014. There is no ground for thinking that further evidence will be produced and there will be no unfairness to the other party.

I believe therefore that this new point of law will be allowed as it involves no unfairness to the applicant, in the circumstances.

If that point is considered, as I believe it will be, then the applicant has no prospects of success. It is a settled position in our law that when an employee on suspension takes up alternative employment, he repudiates his contract of employment with the disciplining employer. See Telone (Pvt) Ltd v Zulu SC 110-04 and Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 ZLR 143 (S).

The interference by the arbitral tribunal with the dismissal penalty in a case where there was no gross misdirection established has been roundly censured by the Supreme Court. In Malimanji v CABS SC 47-07 it was stated:

“It is trite that an appeal court does not interfere with the exercise of discretion by a lower tribunal unless it is shown that the discretion was improperly exercised. The penalty imposed must show a serious misdirection to justify interference by the appeal court.”

The applicant was challenging his inability to cross examine witnesses and preferred that the written statements of the till operators should have been in the form of affidavits.

In the case of Chataira v ZESA SC 83-2001 it was settled that the lack of an opportunity to cross examine witnesses to the alleged misconduct did not render the hearing unfair. It was held that there is no need to lead viva voce evidence and that it is enough for the employee to be shown any statements or documentary evidence produced. Such statements need not be in the form of affidavits as alleged by the applicant.

The arbitrator also found that disciplinary action should be progressive starting with educational measures, then corrective ones and finally punitive ones. This runs contrary to the position of the Supreme Court that serious breaches of trust and confidence on which the employment relationship is based which are wholly inconsistent with the relationship justify a dismissal. Standard Chartered Bank Zimbabwe v Chapuka SC 125-04.

The applicant’s defence on the penalty is unlikely to succeed.

I find that the applicant has no prospects of success in his defence to the appeal.

Bona Fides of application for rescission

Based on my findings that the explanation for the default is not reasonable and that the applicant has no prospects of success in his defence to the appeal, I find that the application to rescind the judgment is not bona fide. This is so particularly given the offence charged, the evidence led and the fact that the applicant did not dispute having increased the limit on his staff account.

Accordingly the application for rescission of judgment be and is hereby dismissed with costs for lack of merit.

Chambati, Magaka & Makonese Attorneys, applicant’s legal practitioners

Dzoro & Partners, respondent’s legal practitioners