Tokozile S Zinondo V Cafca Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/470/2016
HARARE, 21 JUNE 2016 &
19 AUGUST 2016
CASE NO LC/H/APP/340/2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/470/2016

HARARE, 21 JUNE 2016 &				CASE NO LC/H/APP/340/2016

19 AUGUST 2016

In the matter between

TOKOZILE S ZINONDO							APPLICANT

Versus

CAFCA LIMITED								RESPONDENT

Before the Honourable P Muzofa J

The Applicant in Person

For the Respondent	W Magaya  (Legal Practitioner)

MUZOFA J:

This is an application for rescission of a default order.

In such an application the court has to consider the explanation for the default, the bona fides of the applicant and the prima facie strength of the case Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Limited 1998 (1) ZLR 368 SC.

An application for rescission of judgment is one where the court is called upon to exercise its indulgence for the default, having considered the requirements to be satisfied.

The applicant filed an application for leave to appeal to the Supreme Court. On the application her address of service was of her preferred representatives. The matter was set down for hearing on 16 February 2016. On the appointed date neither the representatives nor the applicant appeared.

The court granted a default order. There was proof of service on the receptionist of the given address by the applicant.

Before this court the applicant explained that her default was due to the inadvertence of her erstwhile representatives. They failed to appear, not only that she was not advised that the matter had been set down for hearing.

The applicant in her founding affidavit confirmed that her erstwhile representatives were served with a notice of set down. In her oral submissions she submitted that her representatives were not served as a result they were unaware of the date of hearing.

The applicant’s explanation has some inconsistencies. The courts have held that where the default is attributed to someone who is not party to the proceedings, there must be an affidavit from such party shouldering the blame. In this case the applicant’s explanation was not substantiated. It remained a bare assertion.

What makes it hazy is the twin explanation contradictory in terms. It is clear that the applicant chose not to put the court into her confidence. The return of service filed of record, which was the basis for the granting of the default order confirmed that the representatives were served. To allege otherwise would be misleading the court.

To that extent the representatives having failed to act or take the proper action to protect the applicant’s interests were reckless. Courts have attributed the conduct of the representatives to the litigant. I agree with the sentiments of the late SANDURA JA in Beitbridge RDC v Russell Construction 1998 (2) ZLR 190 (S):

“This court has, on a number of occasions, clearly stated that non-compliance with or wilful disdain of the rules of the court by a party’s legal practitioner should be treated as non-compliance or a wilful disdain by the party himself.”

Consequently I find that the applicant should shoulder the consequences of the default. In my view I do not find the explanation excusable.

The applicant has to also show that there are prospects of success in the main matter. I do not believe the applicant has prospects of success.

The applicant submitted that the intended grounds of appeal raise questions of law as envisaged by the law. The first ground of the intended appeal is couched as follows:

“The Labour Court ‘grossly misdirected itself’ by interfering with and setting aside or substituting the reasonable award that was issued by the Honourable Arbitrator who properly found the respondent’s Patterson job grading system to be irregular in that employees in lower grades would earn higher salaries than the appellant who was in a higher grade.”

The ground of appeal impugns the court’s finding on the application of the Patterson Job Grading System. The system is not a legal concept. It is a human resources concept meant for management in the workplace. There is no question of law to be determined on appeal. There was no gross misdirection on the facts. The system allows for differentials in the same grade.

The second ground of appeal is that:

“The Labour Court grossly misdirected itself by validating the respondent’s Patterson Job Grading System as a Collective Bargaining Agreement for the Engineering, Iron and Steel Industry when the relevant NEC grading structures do not bear any such irregularities as was exposed by the appellant.”

The ground of appeal is inconcise. In her supplementary heads of argument the applicant also failed to set out what this ground of appeal entails.

In the supplementary heads of argument the applicant said she seeks the superior court to determine the applicable law. It is unclear which laws are being referred to.

Supposing that the ‘laws’ are the Collective Bargaining Agreement and the Patterson Job Grading System. The applicant’s case still remains untenable.

The court in its judgment noted that the applicant as a graded employee was paid well above the minimum wage set out in the Collective Bargaining Agreement. This is clearly the applicable law. The Patterson Job Grading System is not a legal concept it is a tool for management as stated before.

I find no question of law for determination.

In the final, even if the applicant’s grounds of appeal raise questions of law there are no prospects of success.

The court made its finding premised on two issues. That the contract between the parties is binding and the court can only enforce what the parties agreed on.

Secondly the court based its finding on the Patterson Grading System that the arbitrator relied on. The court found that the system allowed for different salaries in the same grade.

Accordingly the following order is made:

The application for rescission of judgment being devoid of merit be and is hereby dismissed.

Coghlan, Welsh & Guest, respondent’s legal practitioners