Telone (Pvt) LTD V Gilbert Matsanura

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/104/14
HELD AT HARARE 13TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/104/14

HELD AT HARARE 13TH FEBRUARY 2014		CASE NO LC/H/84/13

& 28TH FEBRUARY 2014

In the matter between:-

TELONE (PVT) LTD						Applicant

And

GILBERT MATSANURA					Respondent

Before The Honourable R.F. Manyangadze, Judge

For Applicant		Mr S Kampira (Legal Practitioner)

Respondent			In person

MANYANGADZE, J:

This is an application for rescission of a default judgment granted by this court on 1 November 2013.

The applicant filed an appeal against the decision of the National Employment Council which had set aside the dismissal of the respondent from applicant’s employment.  On the set down date, 1 November 2013, there was no appearance for the applicant, resulting in the court granting a default judgment in favour of the respondent.

The two broad considerations in an application of this nature, are whether or not applicant was in wilful default, and whether or not applicant has good prospects of success on appeal.  These, infact, are the basic considerations in almost all interlocutory applications seeking the court’s indulgence for non-compliance  with its rules.  In Mazvimbakupa v City of Harare HH-92-05 the court spelt out, inter alia,

the following factors:

degree of non-compliance

the explanation thereof

the prospects of success  on the merits

The applicant’s explanation for the default is that the set down of the

matter was not brought to its legal practitioner’s attention due to a diarising omission by his secretary.  Applicant submitted that it received service of the court order dismissing its appeal on 18 November 2013.  On enquiring with its legal practitioner, that is when applicant was advised of the diarising mishap.

Applicant filed a supporting affidavit by Melody Chipuriro, the legal practitioner’s secretary.  In her affidavit, Chipuriro states that on 31 October 2013 she was called home to attend to an emergency.  Her 2 ½ year old son had received some serious burns.  She had to take the child to Dr Ndoro’s surgery, from where the child was referred to Parirenyatwa Hospital.  In the wake of this emergency, she forgot to inform her boss, applicant’s legal practitioner, that this matter had been diarised for 1 November 2013.  She further stated that her boss had spent the day, on 31 October 2013, out of office, attending to a criminal matter.

What is not clear, as pointed out by respondent, is what the legal practitioner or his secretary did with the notice of set down soon after it was served.  31 October 2013 is obviously not the date the notice was served.  It was served well before this date.  Chipuriro says, in her affidavit, that she placed it in her boss’s diary, which diary she keeps. If the matter had been promptly and properly diarised, even the child’s emergency would not have affected the legal practitioner’s schedule, as this occurred well after the Notice of set down was received.  He should have been made aware of the set down date and scheduled his court commitments accordingly.

This is one of those cases where a client suffers prejudice due to administrative mishaps occurring in a legal practitioner’s office.  There was some negligence in the manner the diarising was handled by the legal practitioner’s secretary, her emergency notwithstanding.

However, in the interests of bringing matters to a proper conclusion, the courts have at times excused such negligence.  Each case, of course depends on its merits.  In a case were a legal practitioner could not file Heads of Argument in time because the file had been misplaced in the law firm’s offices, the court granted condonation because of the need for the parties to have final judgment on the matter.  This was the case of Chimpondah&Anor v Muvami, 2007 (2) ZLR 326, where MAKARAU JA, (as she then was), inter alia, stated, at p 327.

“It is trite there is a certain degree of negligence in failing to observe the rules of court.  An application for condonation such as the one before me is, therefore, an application for excusing the negligence of the offending party and the degree of such negligence then becomes a factor, together with other factors that will ensure that at the end of the day justice as between the parties prevails.”

In casu, the circumstances show that there was some degree of negligence in the manner in which the notice of set down was handled in the applicant’s legal practitioners’ office, resulting in the legal practitioner missing the court date.

On the prospects of success, I am of the view that an appeal court should be given a chance to determine whether or not it was proper for the NEC to substitute its own sentencing discretion for that of the applicant’s Disciplinary Committee.  It is also necessary to determine whether or not the NEC properly interfered with the findings of the Disciplinary Committee, in respect of the charges where it reversed the verdict of guilty.

I am, in the circumstances, inclined to adopt the approach in the Chimpondah case, supra, where the court’s overriding concern was

“the needfor the parties to have a final judgment on the matter…”

It must however, be noted that this approach does not invariably excuse  negligence on the part of legal practitioners and those they depend on in running their offices.  They need to be vigilant at all times to avoid possible prejudice to their clients as, in some cases, condonation may be denied.

In the circumstances, it is ordered that;

The application for rescission of the default judgment granted by this court on 1 November 2013 be and is hereby granted.

The Registrar shall set the application for interim relief in case No LC/H/84/13 on the next available date.

Costs shall be in the cause.

Dondo& Partners, applicant’s legal practitioners