Paul Musiyiwav Bindura Nickel Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/135/2014
HARARE, 03 & 14 MARCH 2014
CASE
---------




IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/135/2014

HARARE, 03 & 14 MARCH 2014		           		         CASE NO. LC/H/368/10

In the matter between:-

PAUL MUSIYIWA							Applicant

And

BINDURA NICKEL CORPORATION				Respondent

Before The Honorable F.C. Maxwell, Judge

For Applicant		Mr. Mahuni (Legal Practitioner)

For Respondent		Mr. Chagonda (Legal Practitioner)

MAXWELL J:

This is an application for the rescission of a judgment issued in default of Applicant’s appearance on 24 January 2012.  The application was filed on 1 August 2012.  The reason for the default appears in the founding affidavit of the Applicant, that;

“…. the Registrar sent to the Respondent notification for parties to attend Court on 24 January 2012.  However the notice of set down was not served on the Applicant and neither did the Respondent advise me of the Court date ….”

Applicant states that he only came to know of the default judgment on 24 July 2012 when his legal practitioner made enquiries with the Registrar why the matter was not being set down.

The test generally applied in applications of this nature is whether or not good cause has been shown.  In doing so factors to be considered include

the length of delay in applying for rescission,

the reason for the default,

the prospects of success and

the balance of convenience.

See Redstar Wholesalers v Mutomba SC 142/04.

It is trite that an application succeeds or fails on the founding affidavit.  In casu the founding affidavit cannot sustain the application.  It contains issues that should have been sworn to by Applicant’s legal practitioner.  The normal practice is for the legal practitioner to depose to a supporting affidavit.  No such supporting affidavit was filed.  Respondent opposed the application on the basis that Applicant had not attached an affidavit deposed to by his legal practitioner.  Respondent further pointed out that the Judge who granted the default judgment was satisfied that there was proof of service.

Subsequently Applicant filed an answering affidavit.  Attached to the answering affidavit is an affidavit by Rungano Mahuni.  The affidavit was filed without leave of Court in an attempt to rectify the omission to attach it in support of the founding affidavit.  No explanation is given as to why it was not filed with the founding affidavit.  I find that the said affidavit is improperly before the court and I will disregard it.  In any event, even if I was to condone the failure to seek leave, Applicant’s predicament remains the same.  The affidavit contains an averment that;

“… the Registrar noted that there was an error in that regard.  She noted that there was no certificate of service of notification of set down date save for the one dated the 16th of May 2011 which was in respect of a prior hearing.”

Applicant has not provided anything from the Registrar to substantiate the above averment.  There is therefore no confirmation of what has been said to have been noted by her.  As a result the requirement to prove that the default was not willful has not been satisfied.  As submitted by Respondent, the Court was satisfied that Appellant had been notified of the hearing of 24 January 2012 when it issued a default judgment.

I will now proceed to deal with the prospects of success.  The default judgment had the effect of quashing the arbitrator’s award and substituting it with the dismissal of Applicant’s claim.  The arbitrator captured the issue in dispute as an “alleged breach of terms of services by Bindura Nickel Corporation (BNC) that is altering United States Dollar (USD) payment of salaries to Zimbabwe Dollar (ZWD) salary payment for Managerial Employees on the retrenchment list with effect from December 2008.”

Applicant listed the issues for determination in the appeal by Respondent in his heads of argument as

whether or not there was ever a contract between the parties providing for the remuneration in United States Dollar terms?

whether or not this contract was renewed after its initial expiry in 2009?

whether or not there was breach of contract by either party?

Respondent submitted that as reflected in heads of argument on record, in 2008 Respondent applied for a special dispensation to pay its critical skills employees’ salaries in United States dollars.  The application was approved with conditions one of which was that the approval was valid for twelve months.  Applicant was identified as one of the beneficiaries.  The payments were discretionary and could be taken away at any time.  The letter advising Applicant of this position is on page 30 of the record and contains the following statement.

“It is not deemed to be part of your normal employment package, and it can be withdrawn at any time.”

This letter, written on 27 March 2008, further stated that;

“Please note that payment of the critical skills allowance is dependent upon the existence of enabling legislation and receipt of requisite approvals from the relevant authorities, such as Exchange Control and ZIMRA.”(page 31 of record)

On 24 July 2008 Respondent wrote to Applicant outlining terms and conditions that apply during the period he would be in receipt of a United States denominated salary.  The letter repeated the issue of authority from relevant authorities and specified that the duration of the contract was from March 2008 to February 2009.  Renewal was subject to approval by the Reserve Bank of Zimbabwe.  The letter further advised Applicant that it was replacing the letter of 27 March 2008 in its entirety.

It is evident from the record therefore that the contract providing for the remuneration in United States dollars expired in February 2009.  No evidence of its renewal or extension is on record.  The letter was specific to a “period you will be in receipt of a US$ denominated salary.” It further stated that at “the expiry of this period, your conditions of employment will revert back to your original contract of employment.” I find that there is no basis for stretching the applicability of the contract beyond the stipulated February 2009.

On the basis of the above finding I am of the view that Applicant has no prospects of success on appeal.  During the hearing of this application it was brought to the Court’s attention that the legal practitioner appearing for the Applicant was the deponent to the affidavit filed in support of the answering affidavit.  In my view once a legal practitioner files an affidavit testifying to an issue before the Court, such a legal practitioner should not appear to argue the matter as he has become a witness in the matter.  It was therefore improper for Applicant’s legal practitioner to appear to argue a matter in which he had become a witness.

Be that as it may the application failed to satisfy the requirements for rescission of the default judgment and consequently fails.

Wherefore it is ordered that the application for rescission of default judgment be and is hereby dismissed for lack of merit.

Mahuni & Mutatu, Applicant’s legal practitioners

Atherstone & Cook, Respondent’s legal practitioners