Oscar Maravanyika and 6 Others v Nulenty Enterprises (Pvt Ltd)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT
NO.LC/H/150/2020
HARARE, 16 JUNE 2020
CASE NO.LC/H/APP/144/19
---------


IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO.LC/H/150/2020

HARARE, 16 JUNE 2020 			  CASE NO.LC/H/APP/144/19

AND 03 JULY 2020

In the matter between:-

OSCAR MARAVANYIKA						1ST APPLICANT

OLIVER MAKUVAZA						2ND APPLICANT

MICHELLE MASIYA						3RD APPLICANT

KNOWLEDGE CHINGWELU					4TH APPLICANT

ADMIRE MUTSAKANI						5TH APPLICANT

ELIZABETH DAHWA						6TH APPLICANT

PASTURE KAPONDORO						7TH APPLICANT

And

NULENTY ENTERPRISES (PVT LTD)				Respondent

(IN CHAMBERS)

MURASI, J:

This matter was originally set to be heard on 01 April 2020.  Due to the onslaught of the CORONAVIRUS pandemic, the Chief Justice issued an instruction to the effect that courts would only deal with very urgent matters and the rest had to be postponed.  This was in order to avoid unnecessary contaminations and curb infections.  On the date of the hearing, applicants’ legal practitioners were contacted telephonically and informed of the position.  It was also suggested to them that,

with their consent, the matter could be determined on the merits if they were satisfied that the documents they had filed were adequate.  A provisional hearing date of 16 June 2020 was also given to applicant’s legal practitioners.  Mr Kanoti, for the applicants, indicated that he was agreeable to having the matter determined on the basis of the documents filed of record.

Respondent could not be conducted telephonically on 01 April 2020 as no contact details were provided in the record.  Respondent was subsequently contacted on 16 June 2020 after the contact details had been obtained from applicants’ legal practitioners.  Confirmation was received from one MUSAKASA, on behalf of the respondent to the effect that the matter could be determined on the basis of the documents filed of record.

A brief background to this matter is pertinent.  Applicants were employed by the Respondent in various capacities.  The applicants’ contracts of employment were allegedly terminated by the respondent which prompted them to approach the Designated Agent for the National Employment Council for the Food and Allied Substances.  The Designated Agent dismissed their claims.  The applicants were disgruntled with this ruling and resolved to appeal to this Court.  The applicants were however out of time and sought condonation of the late filing of the appeal.  This was done under Case No LC/H/APP/533/18.  The matter was set down for 21 January 2019.  The applicants did not attend and a default judgment was granted.  Applicants intend to have the default judgment rescinded, hence the present application.

A reading of the documents filed of record shows that respondent, in the Notice of Response raises a preliminary point.  This is captured at Page 18 of the record.  This is an affidavit filed by SIMON MUSAKASA.  He states as follows:

“15. The application for rescission is well out of time.  The delay is by all stretch of imagination inordinate.  Even assuming without admitting that their approach is correct (in wanting to apply for rescission of the judgment), it is imperative to draw the following facts to the attention of the court:

This application was only filed on the 1st of March 2019.  This is 2 months after the issuance of the Labour Court order.  This is manifestly gross and inordinate delay.

16. What worsens the whole scenario is that no explanation has been given for the period of inaction, that is, from the 23rd of January 2019 to the 1st of March 2019”

The Notice of Opposition was filed on 21 June 2019.  The applicants’ legal practitioners proceeded to file heads of argument on 01 August 2019.  It is a fact that these heads of argument should have been filed within ten (10) days from the date they were served with the Notice of Opposition.  However, I will restrict myself to the preliminary issue raised by respondent.  A reading applicants’ heads of argument shows that the preliminary point raised by the respondent was not addressed at all.  In fact, paragraph 4A.2 of these heads of argument refers to Rule 40 of the Labour Court Rules, 2017.  For the sake of completeness, l will cite it.  It provides:

“Applications for rescissions or alterations of judgments”

40. An application for the rescission or alteration of a determination, order or judgment of the Court or Judge on any of the grounds specified in the Act shall be made within twenty-one days from the date after the party has had knowledge of  the determination, order of judgment.

Provided that unless the contrary is proven, the party shall be presumed to have had knowledge of the judgment within two days after the date thereof.”

What is outstanding from applicants’ heads of argument is that after making reference to Rule 40 of the Labour Court Rules, the issue raised by the respondent was not addressed at all.  The Rules clearly prescribe that an application for rescission should be made within 21 days from the date after the party has had knowledge of the determination.  An affidavit deposed to by TAFADZWA MARUFU MARINDA explains when the applicants became aware of the determination.  Paragraph 6 reveals the following:

“Applicants arrived few minutes late at court and they could not help their situation after receiving a telephone call from their previous Legal Practitioner Mr Matandire who notified them that he had left the employment of Kanoti and Partners abruptly on the day of the set down and was no longer obliged to represent them”.

The above shows that applicants became aware of the determination on 21 January 2019.  However, applicants in the affidavits filed of record, do not explain

why it took them long to file the present application.  It is a well-established principle of procedural law that, generally, an applicant must stand or fall on his or her founding papers.  (See BOPOTO VS CHIKUMBU AND OTHERS 1997 (1) ZLR 1 (HC))

What is clear is that applicants have not complied with the Rules.  The application was not filed within the prescribed period of time.  No explanation has been tendered for the failure to comply with the Rules.  NO application for condonation of such failure has been made.  SANDURA JA (as he then was) had this to say in GANDA AND OTHERS V FIRST MUTUAL LIFE ASSUARANCE SOCIETY 2005 (1) ZLR 37 (SC) at 41 G:

“In the circumstances l do not consider it necessary to deal with the prospects of success of the appeal on the merits.  As MULLER JA said in P.E BOSMAN TRANSPORT WORKS COMMITTEE AND OTHERS V PIET BOSMAN TRANSPORT (PTY) LTD 1980 (4) SA 794 (A) at 799 D-E:

‘In a case such as the present, where there has been a flagrant, breach of the Rules of this court in more than one respect, and where in addition there is no acceptable explanation for some periods of delay and, indeed in respect of other periods of delay, no explanation at all, the application should, in my view opinion, not be granted whatever the prospects of success may be  ‘ “

In the same case the Learned Judge made the following observation at 39D:

“ In addition, it is pertinent to note that it has been stated in a number of cases that a person seeking condonation of the late nothing of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation”.

In casu, applicants are applying for the rescission of the default judgment.  Applicants became aware of the default judgment on the day it was granted.

Applicants did not file the present application within the prescribed period of time.  They do not advance any explanation for such failure.  Applicants do not seek condonation of the late filing of the application for rescission.   Respondent brought it to the attention of the applicants in its Notice of Opposition that there was no compliance with the Rules.  Applicants did not address this issue at in all the papers filed of record.  It should be regarded as a flagrant disregard of the Rules of Court.

In the result, the preliminary point ought to be upheld.

The following order is appropriate.

The preliminary point be and is hereby upheld.

The application for rescission be and is hereby struck off the roll for non – compliance with Rule 40 of the Labour Court Rules, 2017.

Each party to meet its own costs.

KANOTI AND PARTNERS   	-   APPLICANTS’ LEGAL PRACTITIONEERS