Rufaro Marketing v Rufaro Marketing Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/34/16
HELD AT HARARE 19TH JANUARY 2016
CASE NO LC/H/APP/839/15
& 22ND JANUARY 2016
JUDGMENT NO LC/H/34/16
---------




IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/34/16

HELD AT HARARE 19TH JANUARY 2016	    CASE NO LC/H/APP/839/15

& 22ND JANUARY 2016

In the matter between:

RUFARO MARKETING					Applicant

And

RUFARO MARKETING WORKERS UNION		Respondent

Before The Honourable Mhuri, J

For Applicant		Mr Chigarande (Legal Practitioner)

For Respondent		Mr S Banda (Legal Practitioner)

MHURI, J:

On 28 January 2011 applicant through its current Legal Practitioners filed an appeal in this Court against an arbitral award.  On 20 June 2012 the appeal was set down for hearing but was postponed by consent of both parties to enable filing of Heads of argument by both parties.

On 17 February 2014 the appeal was reset for hearing.  Applicant being in default of appearance, a default judgment was issued against it.

On 14 July 2015 applicant filed this application for rescission of the default order. The application is vehemently opposed by respondent.

Respondent raised two preliminary issues to the effect that:-

the application was filed way out of time, in July 2015 when the order it seeks to be rescinded was issued in February 2014.

It was argued that the Rules of this court Statutory Instrument 59/2006, in particular Rule 33 provides that an application for rescission is to be filed within 30 days of one becoming aware of the order/judgment/determination sought to be rescinded.

It was argued that since applicant did not attach the notice of set down which it alleges was served on the wrong Law Firm, the presumption is that application was served with the notice of set down and was therefore fully alive to the possibility that a default judgment had been entered as early as 17 February 2014.

the application is fatally defective as it seeks in its Draft Order to also stay the High Court Order granting execution of applicant’s property.  This is the Order that prompted the application for rescission.

It was argued that the Labour Court being a creature of

statute it is only empowered to deal with matters provided within the four corners of the enabling Statute (Labour Act Chapter 28:01) and relevant Regulations.

Staying a High Court Order is not one such matter and therefore the relief being sought is incompetent.

It was submitted that on the basis of these two preliminary issues the application must fail.

Section 92 C of the Labour Act provides for applications for rescission of a judgment, order or determination issued in default of appearance by a party.

Rule 33 of the Labour Court Rules provides for the time period within which such an application is to be made.

It provides:-

“An application for the rescission or alteration of a determination, order or judgment of the court on any of the grounds specified in Section 92 C (i) (a) (b) or (c) of the Act shall be made within 30 days from the date the application became aware of determination, order or judgment.”

The above Rule is very clear and unambiguous on the period (30 days) within which the application is to be made and as to the date the period is to be counted from (i.e. from the date a party became aware of the order).

The words are to be given their ordinary grammatical meaning.

It was not in dispute that the Sheriff went to attach applicant’s property on 5 June 2015.  Applicant submitted that it was on this date that it became aware of the default order.

It then found out that the notice of set down for 17 February 2014 hearing was served on Kantor & Immerman Legal Practitioners.  On 14 July 2015 it then filed the present application.

It contended that, its application was filed within time as per Rule 33.  It submitted that paragraph 2 of the Draft Order which seeks to stay the High Court Order is abandoned as it has been overtaken by events.  It further submitted that it was not in wilful default as it was not aware of the date of set down.

From 5 June 2015 to 14 July 2015 it is 27 working days.  The application was therefore filed within the 30 days as prescribed in Rule 33.  I do not agree with Respondent’s submission that since applicant did not immediately file its application after the Sheriff’s visit, there was an inordinate delay as a result of which rescission should not be granted.  It does not matter in my view, when within the 30 day period the application should be filed.  It can be on the 1st, 10th, 20th or 30th day, it does not matter for as long as it is within the 30 day period.

Since paragraph 2 of the Draft Order has been abandoned by applicant, it is no longer necessary for me to deal with the second point in limine.

To that end, and in view of my findings on the first point, the points in limine cannot be upheld.

Despite the fact that the notice of set down for 17 February 2014 was not attached to the application, the pleadings clearly refer to it as filed of record.  Indeed the notice is filed of record.  It clearly shows that it was addressed to and was served on Kantor and Immerman Legal Practitioners.

This is clear testimony and I am persuaded by applicant’s submission that it was not aware of the date of hearing.  Applicant therefore was not in wilful default.  The remarks of McNALLY JA (as he then was)in the case of

ZIMBABWE BANKIG CORPORATION

V

MASENDEKE

1995 (1) ZLR 400 (S)

are apt

“wilful default occurs when a party, with full knowledge of service or set down of the matter and of the risks attendant upon default, freely takes a decision to refrain from appearing.”

A reading of applicant’s grounds of appeal to this court, shows that applicant was aggrieved by the arbitrator’s granting of a 60% salary increase to respondents when respondents had just  been awarded a 15% increase, in a stable US$ economy.  The arbitrator’s drawing of inferences from applicant’s non-disclosure of its management’s wage ratio.

I find  that applicant despite its tardiness

(failure to timeously file Heads of argument)

(failure to constantly make enquiries with the Registrar on its case so as to see finality) it has a bona fide case on appeal.

To that end therefore I will grant the application.

Consequently it is ordered that the default order of

17 February 2014 be and is hereby rescinded.

The Registrar is directed to reset the appeal LC/H/421/11 for hearing.

Matizanadzo & Warhurst, applicant’s legal practitioners

Mambara & Partners, respondent’s legal practitioners