Rio Zim Ltd v Givemore Zaronga & 69 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/317/14
HELD AT HARARE 6TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/317/14

HELD AT HARARE 6TH MAY 2014			CASE NO LC/H/868/13

& 6TH JUNE 2014

In the matter between:-

RIO ZIM LTD							Applicant

And

GIVEMORE ZARONGA & 69 OTHERS			Respondents

Before The Honourable E Muchawa, Judge

For Applicant		T Sibanda (Legal Practitioner)

For Respondents		S Nyagura (Legal Practitioner)

MUCHAWA, J:

This is an application for rescission of judgment.

On the 11 March 2014 the hearing of an application for interim relief was set down for hearing at 0900 hours before Musariri J.  Both parties had been duly advised of the date of set down and proof of service was on file.  Applicant was in default and the application for interim relief was dismissed for want of prosecution.  It is that order that is sought to be rescinded through this application.

Applicant’s counsel explains that the default was occasioned by a mistake on his part.  This is said to relate to an erroneous capturing of the set down time as 2.00 o’clock in his diary.  It appears that on that date applicant’s counsel had a double booking at 9.00 o’clock as he claims to have been in the High Court at that time.  At 11.00 o’clock he claims to have appeared before Musariri J in a different matter and always intended to prosecute this matter hence the filing of the application and correspondence with the respondents’’ lawyers.  Upon realisation of the error on his part, applicant’s counsel immediately sought the indulgence of the other party and when his request was refused he promptly filed the application for rescission of judgment.

Respondents argue that applicant has not proffered a reasonable explanation for his default.  The alleged confusion regarding the set down time is said to be non existent as applicant’s counsel had recourse to the notice of set down and should not have relied on his diary.  I was referred to a letter written by applicant’s counsel 3 days before set down, to respondents’ lawyers.  That letter correctly states the set down time as 9.00 a.m.

I was referred to the case of Gova v Ashanti Goldfields Zimbabwe t/a Freda Rebecca Mine and Anor HH 48-12 for the requirements to be considered in an application for rescission of judgment.  The first consideration is the reasonableness of the explanation for default.

The second consideration is the bona fides of the application to rescind the default judgment whilst the last point is the bona fides of the defence.  The prospects of success is another important consideration.

Applicant referred me to the case of Zimbabwe Banking Corporation Ltd v Masendeke  1995 (2) ZLR 400 (SC) for the assertion that his default was not wilful but was a result of a mistake.  It was held in that case that the default had not been wilful where it was as a result of a mistake in misfiling.

In casu I find that the mistake was in applicant’s counsel’s head and so he did not see any confusion at that time as he genuinely believed his diary entries were correct.  The confusion and mistake was only realised later even though the notice of set down stated otherwise.  I find too that applicant has made a good case for a genuine mistake on his counsel’s part.  The legal practitioner has been candid and in good faith has presented himself before the court and promptly corrected his mistake.

I am further persuaded by the reasoning in the Zimbank v Masendeke matter supra that a person in respondents’ counsel’s shoes must have suspected when applicant did not appear, that something had gone wrong.  A phone call to the lawyer whom she had been communicating with and who had filed extensive heads of argument and had for all intents and purposes, exhibited a serious intention to prosecute the matter, would have saved a lot of trouble and expense.

Both parties have filed extensive heads of argument regarding the appeal and application for interim relief.  There is an arbitral award to the tune of USD1 810 495.06 in favour of respondents whose execution was sought to be stayed.  Questions relating to the locus standi of respondents, the prescription of the claim, exhaustion of local remedies and the binding nature or otherwise of a company policy and whether it could be unilaterally varied are the points raised on appeal and vehemently opposed.  Included too is the question of whether respondents are owed any benefits for the period prior to dollarization.  Prima facie, these are important points of law that require ventilation and consideration.

In the application for stay of execution applicant had to show that he would suffer irreparable harm if execution was not stayed.  Respondents argue that applicant would not suffer irreparable harm.  I established that respondents are still employed by applicant and are receiving their monthly salaries.   The balance of convenience in casu favours the granting of the application for rescission of judgment instead of allowing execution of an amount close to two million dollars on the pretext that there would be no irreparable harm.

I therefore find that this is a good case for the exercise of the court’s discretion, recognising that lawyers, like everyone, often make mistakes.  Where they are candid and promptly  address such mistakes, the court should condone such mistakes in the interests of justice especially where the matter has good prospects of success and will contribute to the development of labour law.  (See Mufundisi v Rusere  HH 22 – 09)

I order as follows:

The default order granted by this court in case number LC/H/868/13 on 14 March 2014 be and is hereby rescinded.

The applicant be and is hereby ordered to attend to set down of the application for interim relief within 5 days of receipt of this order.

The costs of this matter shall be costs in the cause.

Chinawa Law Chambers, applicant’s legal practitioners

Matsikidze & Mucheche, respondents’ legal practitioners