Tana My Son Logistics v Langton Chikukutu & 3 Ors

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/75/20
HELD AT HARARE ON 19TH NOVEMBER, 2019
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	         JUDGMENT NO. LC/H/75/20

HELD AT HARARE ON 19TH NOVEMBER, 2019    CASE NO. LC/H/APP/47/18

AND 13TH MARCH, 2020				        X REF: LC/H/03A/17

In the matter between:-				       X REF: LC/H/APP/403/17

TANA MY SON LOGISTICS					      	Applicant

And

LANGTON CHIKUKUTU						      	1st Respondent

TANDA NOEL RUKUNI						      	2nd Respondent

MICHAEL CHANGARA						      	3rd Respondent

NEVER RUSHESHA						      	4th Respondent

Before the Honourable Mhuri, J.

For Applicant		:

For 1st Respondent	:	In person

For 2nd Respondent	:	In default

For 3rd Respondent	:	In person

For 4th Respondent	:	In person

MHURI J.

The history of this matter is that allegations of underpayments of wages, non-payment of overtime and unfair dismissal were raised by the respondents against applicant with the Ministry of Public Service, Labour and Social Welfare, Marondera.

On the 10th April 2014, the matter was referred to an Arbitrator Mr. H. Muchinako for arbitration.  It was initially set down for hearing on the 17th June, 2014, then on the 4th July, 2014 and finally on the 13th November, 2014.

On the 13th November, 2014 an award was granted in default of appearance by applicant.

Pursuant to this, applicant filed an appeal with this court which appeal it later withdrew and filed an application for rescission of the default award with the Arbitrator.

The Arbitrator declined to grant rescission on the ground that the application was filed out of time.

As a result of this refusal, applicant filed an appeal with this Court challenging this award.  The Applicant did not comply with this Court’s Rule that mandated it to file Heads of Argument.

On the 9th June, 2017 when the appeal was set down for hearing, applicant sought a postponement to enable it to file an application for the upliftment of the bar that was operating against it, for failure to file heads of Argument.

The application was duly filed on the 19th July, 2017.  It was set down for hearing initially on the 16th January, 2018 and applicant’s instance, was postponed to the 26th January, 2018 at 0900 hours.  Both parties were duly warned of the date and time.

On the 26th January, 2018 applicant defaulted and its application was dismissed with costs.

On the same date 26th January, 2018 applicant filed this application for rescission of the default order that had been granted.

In applications for rescission of a default order, applicant must give a reasonable explanation for his default.  He must also show that he has a bona fide case in the main or put differently that his prospects of success are good.

The test was aptly put in the case of:-

REDSTAR WHOLESALERS   vs   L. MUTOMBA SC   142/04

In casu, the explanation given by applicant was that its legal practitioner was given incorrect time of hearing by the Legal Practitioner (Mr. Mboko) who had appeared in his stead for purposes of seeking a postponement.  The time given was 11.00 hours whereas the correct time was 0900 hours.  It was explained that, applicant indeed appeared at Court at 11.00 hours for the hearing only to learn that a default order had been issued at 0900 hours due to its non-appearance.

Applicant submitted that, had it not been for the wrong information conveyed, it would have attended the hearing at the correct time (09:00 hours) as it did at 11:00 hours.  It submitted that it was therefore not in wilful default on the day.

Mr. Mboko supported applicant’s explanation.  In his supporting affidavit, he averred that on the 16th January, 2018 he attended court on behalf of Mr. Maposa (Applicant’s legal practitioner) and sought a postponement on his behalf.  He then conveyed the date and time to Mr. Maposa as 26th January, 2018 at 11:00 hours.  He, in error conveyed the wrong time.

For a litigant to be held to be in wilful default, he/she would have with knowledge of the date of hearing taken a deliberate step not to attend.

See:	ZIMBABWE BANKING CORPORATION

vs

MASENDEKE 1995 (2) ZLR 400 (S)

in which McNALLY JA held,

“Wilful default occurs when a party, with the 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.”

Applying the above principle to the explanation given, it cannot reasonably be said that applicant wilfully defaulted Court at the time of the hearing.

On the 26th January, 2018, applicant attended Court for a “11:00 hours” hearing.  On the same date, after learning of the default order issued against it, applicant filed this application for the rescission of the default Order.  In my view, the explanation given is a credible one.  I therefore hold that applicant was not in wilful default on the 26th January, 2018.

I now turn to consider whether applicant enjoys good prospects of success in its main matter.

As captured in the historical background of this case,

A default award was issued against applicant.

As a result it applied for rescission of that default award, unsuccessfully, as the arbitrator made a finding that the application was filed out of time.

It then appealed to the Labour Court against the arbitrator’s decision.

Applicant was barred for failure to file its Heads of Argument.

It then filed an application for the upliftment of the bar operating against it and extension of time within which to file the Heads of Argument.

It is at the hearing of this application that application defaulted.

Does applicant have good prospects of success in this application?

Sub-Rule (2) of Rule 26 of this Court’s Rules, Statutory Instrument 150 of 2017 bars a party who has not filed Heads of Argument from making any submissions.

It is for this application that applicant has to show and persuade me that it has good prospects of success in having the bar uplifted.

In its founding affidavit deposed to by its Managing Director, it was averred that the failure to file its Heads of Argument timeously was due to misfiling of papers in the Attorney’s Office.  In paragraph 8 of the Heads of Argument it was submitted that the failure to file Heads of Arguments on time was caused by a reasonable oversight therefore the dismissed application was strong and commanded great prospects of success.

This averment was not taken any further by applicant.

Instead, applicant dwelt much on its prospects of success in the appeal against the arbitral award.  (i.e. on the merits of the award and a bit on the application for rescission that was before the arbitrator) submitting that the issue of whether or not a Labour Consultant has a right of appearance before an Arbitrator should be re-argued before the Supreme Court as the Supreme Court erroneously decided the issue in the case of:

ZIMBABWE ASSEMBLY OF GOD AFRICA (ZAOGA)

vs

KASIKAI MASHONGANYIKA   SC 43/18

and also that the arbitrator did not consider the requirements for rescission and that he failed to appreciate that applicant had no knowledge of the proceedings.

With such a bare averment on the prospects of its success in the application for the upliftment of the bar, and condonation of late filing of Heads of Argument I am not convinced that the Court would grant applicant the indulgence it is seeking.  It is not for this Court to peruse the record of the application to see if applicant has prospects of success.

In the result, the application for rescission of a default Order granted on the 26th January, 2018 be and is hereby dismissed.

CHIRENJE LEGAL PRACTITIONERS – Applicant’s legal practitioners