Sondiwa Matema & 4 Ors v Kefalos Cheese Products (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/297/16
HARARE, 18 MARCH 2016
CASE NO.
JUDGMENT NO. LC/H/297/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/297/16

HARARE, 18 MARCH 2016				      CASE NO. LC/H/APP/1011/15

AND 13 MAY  2016

In the matter between:-

SONDIWA MATEMA 						1st Applicant

And

RUTH MIRISAU							2nd Applicant

And

MOSES TAKAWIRA							3rd Applicant

And

NANTY MIKAEL							4th Applicant

And

LORAINE WISKOT							5th Applicant

And

KEFALOS CHEESE PRODUCTS (PVT) LTD			Respondent

Before The Honourable E. Muchawa, Judge

For Applicants	E. Mukwewa (Legal Practitioner)

For Respondent	I Chingarande (Legal Practitioner)

MUCHAWA, J:

This is an application for rescission of judgment.

On the 21st May 2015, the applicants filed an appeal with this court against a determination of an arbitrator from the National Employment Council for Food and Allied Industries.  They were represented by Messrs Maeresera and Partners Legal Practitioners.

The respondents filed a notice of response to the appeal on the 11th of June 2015 and duly served a copy on the applicants’ legal practitioners on the 15th of June 2015.

As the applicants were represented by a legal practitioner, they had an obligation to file heads of argument in terms of Rule 19 (1) (a) of the Labour Court Rules Statutory Instrument 59 of 2006; that is, within fourteen days of receiving the notice of response.  The applicants therefore had up to the 3rd of July 2015 to file their heads of argument but only filed these on the 27th July 2015.

Meanwhile the respondent proceeded to seek for a dismissal of the appeal in terms of Rule 19 (3) (a) of the Labour Court Rules on the 9th of July 2015, without notice to the other party as allowed by Rule 19 (4).

On the 29th of July 2015 this court duly dismissed the appeal as requested by the respondent.

This is why the applicants have made this application for rescission of judgment.

The factors to be considered in deciding whether a default judgment should be rescinded are:-

the reasonableness of the applicants’ explanation for the default.

the bona fides of the application to rescind the judgment, and

the bona fides of the defence on the merits of the case and whether the defence carries some prospects of success.

See Stockil v Griffiths 1992 (1) ZLR 172 (SC).

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

Explanation for the default

The applicants’ explanation for the non compliance with timeous filing of heads of argument is that the five applicants who have been out of employment for nearly four years failed to timeously raise the fees required by their legal practitioners.

The respondent counter argues that this is not a reasonable and acceptable explanation as their heads of argument were subsequently then filed by the same law firm whom they allege they could not pay.  It is pointed out that the legal representatives could have renounced agency so as to remove the obligation to file heads of argument in terms of Rule 19.

It is contended that the behavior of the applicants and their legal representatives is a perfect example of willful default as set out by McNally JA (as he then was) wherein he said;

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

I was urged to visit the results of the lack of diligence of the attorney onto the litigant as the attorney is the representative whom the litigant has chosen for himself.

In assessing the reasonableness of the explanation tendered I associate myself with the reasoning of Ndou J in Madzivanzira & 2 ORS v Dexprint Investment (Pvt) Ltd HH 145-2002 who in considering the urgency of a matter brought to him noted that that all matters that come before the courts are without doubt dealing with prejudice or potential prejudice to the plaintiff or applicant in one way or another but not all of them qualified to be dealt with as urgent.

In similar manner, most labour matters involve parties who may have lost their jobs and struggle to raise legal fees.  They have the option of engaging legal practitioners, securing the services of their trade union representatives or being self actors.  The question of legal fees then becomes a question of one’s priorities.  In casu there are five applicants involved in one matter who had to pool resources.  It appears to me they simply did not prioritise their appeal matter yet they were well aware of the Rules regarding filing of heads of argument as they once prosecuted a matter related to this in 2012 to 2013.  That matter was then referred to the Supreme Court in November 2014 where it was withdrawn and this current matter was then prosecuted all the way from the Labour Office.  At all material times, the applicants were represented by their same chosen attorneys.

In my considered opinion, the applicants have not tendered a reasonable explanation for their non compliance with the rules, in circumstances where such non compliance amounts to wilful default.

Bonafides of application for rescission

It is the applicants’ case that they took no time to approach this court and that this court should not determine this matter on technicalities, but rather on the merits as enunciated in the matter of Dalny Mine v Banda 1999 (1) ZLR 220 (SC).

On the other hand the respondent argues that the application has not been made in good faith.  I was referred to the case of Khumalo v Mafurirano HB 11/04 in assessing the requirement of good faith.

I find that the applicants in raising lack of legal fees but then proceeding to file the heads of argument some three weeks later under the same legal practitioners who did not renounce agency points to lack of bona fides especially as the applicants are now self-acting.  That option was always available to them.

Further in considering the application for rescission, the court is enjoined to consider the merits of the matter as it assesses the prospects of success.  The court does not therefore dispose of this matter on technicalities.

The applicants also need to read and understand Rule 19 (3) (a).  This court will grant an application for dismissal where heads of argument have been filed out of the time specified.  It is not really relevant that such heads of argument may be on file at the time of granting of the application.  The court exercises a discretion and in judiciously doing so, the court cannot depart from the Rules at will.

I find no bona fides in this application in the circumstances.

Prospects of success

The applicants argue that it was a fatal error for the arbitrator for the NEC for the Food and Allied Industry to decline to deal with this matter on account of lack of jurisdiction yet by design of law all employees of the respondent fell under the NEC Food and Allied Industry.

The respondent argues that the arbitrator’s finding cannot be impugned.

I wish to look at the history of this matter in disposing of this issue.

It is common cause that the applicants were dismissed from employment on 14 February 2012 in terms of the NEC Agricultural Industries Code of Conduct.  That was the Code binding on the parties then and they subscribed to it with applicants being assisted by the General Agricultural Plantation Workers Union of Zimbabwe which fell under NEC Agricultural Industries.

Thereafter the applicants challenged for the first time that their dismissals on the basis that they should not have been charged under the Code of Conduct for the NEC Agriculture but ought to have been registered with the NEC for Food and Allied Industries.  The complaint was referred to the labour office but there was no settlement.  Instead of going to arbitration the applicants referred the matter to the Labour Court seeking a declaration that the respondent belonged to the NEC Food and Allied Industries.  That matter was dismissed for lack of jurisdiction.  The applicants proceeded to the Supreme Court on appeal but withdrew their matter.

It was whilst the appeal was pending before the Supreme Court that the respondent then registered under the NEC for the Food and Allied Industries pursuant to a Works Council agreement of the 26th August 2014.  It was agreed that the effective date would be the 1st of October 2014.

The labour dispute was then relodged on the 3rd of November 2014 before the arbitrator who then declined jurisdiction.

The applicant’s argument before the arbitrator was that the NEC Food and Allied Industries had jurisdiction as at the time the instant proceedings had been instituted, the respondent was already registered under NEC Food and Allied Industries and that it was immaterial that the dispute arose at the time the respondent subscribed to the NEC Agriculture.

It was further argued that there was no legal basis for holding that employees transferred from one undertaking to another continue to be bound by the code of conduct applicable to their former undertaking.

In considering the arguments before him, the arbitrator found that the NEC Food and Allied Industries was not the correct forum as the parties fell under and subscribed to NEC Agriculture at the time of the dispute arising and disciplinary hearings in question until the 1st of October 2014 when the Works Council agreed to move over to NEC Food and Allied Industries.

It was noted that the applicants did not dispute that at the relevant time they fell under NEC Agriculture and never questioned the application of the Code.

It was noted too that NEC Food and Allied Industries did not have a Code of Conduct.

The arbitrator, in my opinion correctly used the principle that laws do not operate in retrospect.  It was correctly noted too that a company would fall under an NEC to which an operation is registered, regulated, graded and remunerated.  In casu in 2012 that was the NEC Agriculture.  The case of Nkomo and Another v AG & ORS 1993 (2) ZLR 422 (S) sets out the cardinal rule on a strong presumption against retrospective construction.  The rationale for this is to guard against retrospectivity affecting already completed acts such as disciplinary hearings.

In any event, the applicant is now raising an argument which was not placed before the arbitrator as he now argues that an industry or company falls under a certain group by virtue of its operations and there is no choice as to whether or not to submit.

As stated in Chikanda v UTC SC 7/99, if the argument was not raised before the tribunal the tribunal cannot be faulted for not dealing with it.  It cannot be a ground of appeal from the tribunal that it did not deal with a matter it was not asked to deal with.

In the circumstances I find there are no prospects of success in the appeal.

According the application for rescission is dismissed with costs for lack of merit.

Nyandoro & Mukwewa, applicants’ legal practitioners

Messrs Matizanadz & Warhurst, respondent’s legal practitioners