Zimbabwe Electricity Transmission and Distribution Company v John Dembaremba & 11 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/140/2014
HARARE, 28 FEBRUARY 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/140/2014

HARARE, 28 FEBRUARY 2014 &		           	                    CASE NO. LC/H/981/12

14 MARCH 2014

In the matter between:-

ZIMBABWE ELECTRICITY TRANSMISSION 		Applicant

AND DISTRIBUTION COMPANY

And

JOHN DEMBAREMBA & 11 OTHERS				Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		Mr. A.K. Maguchu (Legal Practitioner)

For Respondent		Mr. B. Magogo (Legal Practitioner)

MAXWELL J:

Respondents obtained an arbitral award in their favour which award was appealed against on 6 December 2013.  Appellant’s heads of argument were due within fourteen (14) days of receipt of the notice of response but were not filed.  Respondents applied for the dismissal of the appeal in terms of Rule 19 (3) (a) of the Labour Court Rules SI 59/2006.  The application was granted and the appeal was dismissed on 14 July 2013.

On 9 October 2013 the present application for rescission of default judgment was filed.  It is trite that for such an application to succeed good and sufficient cause for the default has to be established.  In doing so the following factors have to be considered.

the length of the delay in applying for rescission.

the reason for the default.

the prospects of success.

the balance of convenience.

See Redstar Wholesalers v Livingstone Mutomba SC 142/04

The application in terms of Rule 19 (3) (a) of the Labour Court Rules SI 59/2006 was placed before a Judge in chambers on 14 July 2013.  It was granted and the order was issued by the Registrar on 16 August 2013.  Applicant’s Counsel indicated in an affidavit that the dismissal of the appeal was brought to his attention by a letter dated 26 August 2013 from Messrs Matsikidze & Mucheche.  As stated before the present application was filed on 9 October 2013.  No explanation has been given as to why it took Applicant more than a month to approach this Court once he had knowledge of the dismissal of the appeal.

The reasons for the default are in the affidavit by Applicant’s lawyer.  It is unfortunate that the deponent to the affidavit argued the mater on the date of the hearing.  In my view once a legal practitioner files an affidavit in a matter he is handling he should not argue the same matter as he would have become a witness in the case. Be that as it may Applicant’s Counsel was of the view that the default judgment was granted in error as

the notice of response was filed out of time and therefore did not trigger Appellant’s obligation to file Heads of Argument;

the application for default judgment should not have been heard since Respondents had not shown good cause why they filed their response out of time, and

an appeal hearing, including filing of Heads of Argument, is based on a record of proceedings. In the absence of a record of proceedings, as in casu the time for filing Heads of Argument cannot begin to run.

I will proceed to consider the reasons given seriatim.

That the notice of response filed out of time did not trigger Appellant’s obligation to file Heads of Argument.

The filing of Heads of Argument in an appeal is governed by Rule 19 of SI 59/2006.  The Rule states:

“(1) Where an … appellant is to be represented by a legal practitioner at the hearing of the …. appeal …., the legal practitioner shall –

within fourteen days of receiving a notice of response to the … appeal … lodge with the registrar heads of argument clearly outlining the submissions he or she intends to rely on and setting out the authorities, if any, which he or she intends to cite; and …..”

The rules are clear that what triggers the obligation to file heads of argument is the receipt of the notice of response.  Applicant is mistaken in his view that he had no obligation to file heads of argument as the notice of response was filed out of time.    The issue of the response being out of time cannot excuse him of failing to comply with the requirement to file heads of argument within fourteen days thereafter.  When the application in terms of rule 19 (3) (a) was placed before a Judge in Chambers, the Judge exercised discretion and granted the application.  I do not accept the Applicant’s view that he had no obligation to file heads of argument as the notice of response had been filed out of time.

That the application for default judgment should not have been heard since Respondents had not shown good cause why they filed their response out of time.

When the application in terms of Rule 19 (3) (a) was placed before a Judge in chambers, the Judge exercised discretion in granting it, after reading documents filed of record.  The appeal had not yet been set down for hearing so as to make Rule 22 of SI 59/2006 applicable where the defaulting Respondent is required to show good cause.  In any event the rule is applicable where no response has been filed.  It does not address an instance where the response was filed before the matter was set down albeit out of time.  Moreover in my view, the tenor of rule 22 is that the Court should afford the defaulting respondent an opportunity to be heard even where by the date of set down the notice of response has not yet been filed.  I therefore do not agree that Respondent should not have been heard as they had not shown good cause why they filed their response out of time.

That an appeal hearing, including filing of heads of argument, is based on a record of proceedings, in the absence of a record of proceedings, as in casu, the time for filing heads of argument cannot begin to run.

It is true that an appeal hearing is based on a record of proceedings.  However the filing of heads of argument are governed by rules of Court.  In the face of a rule that requires the filing of heads of argument after receiving a notice of response, Applicant’s statement that in the absence of a record of proceedings, the time for filing heads of argument cannot begin to run is legally unsound. Applicant’s submissions orally and through heads of argument advocated for a departure from the rules as they are stated to a position where heads of argument are required after a record of proceedings becomes available.  In the absence of an amendment to the rules the court must give effect to the rules as they are, no matter how unreasonable the result may be.  Applicant submitted that the Court must impute a meaning into the rules to the effect that heads of argument are required after the record of proceedings becomes available.  Applicant further submitted that the literal meaning of the rules falls away and the purpose becomes relevant.  As was stated in S v Robinson 1975 (4) SA 438.

“Where the language is plain and admits of but one meaning the task of interpretation can hardly be said to arise….”

See also S v Takaendesa 1972 (4) SA 72.

The language of Rule 19 is very clear.  There is no need to impute any meaning that does not arise from the rule as it stands.  In any event the Applicant stated that an appeal hearing is based on a record of proceedings.  The practice in this Court is that the record of proceedings will be available on the date of the hearing.  The heads of argument are required before the hearing.  I therefore find that Applicant is misdirected in his view that the time for filing heads of argument cannot begin to run without the record of proceedings.

Turning now to the prospects of success Applicant contends that the employer was denied the right to be heard.  This is followed by a statement that written submissions were filed and the arbitrator conducted an oral hearing in which only the lawyers made oral submissions.  Applicant further states that references were made to documents which had not been previously attached to the parties’ papers and each of the lawyers needed time to reflect on the documents, take full instructions, conduct any necessary research and respond.  Respondent disputes this.  In any event Applicant’s lawyer, who appeared before the arbitrator, and who deposed to an affidavit in support of the founding affidavit to this application, did not mention the issue in his affidavit which is before this Court.  What the Court has therefore is an unsubstantiated statement by the deponent to the founding affidavit.  In any event the letter by the Arbitrator attached as annexure B to the founding affidavit is instructive.  The Arbitrator points out that;

“In any case that claimant was to show documents to Respondent was only meant to ensure that the documents requested were authentic and not doctored.  There was nothing therefore that stopped Respondent from submitting closing submissions without these documents.

Last by (sic) not least, considering the fact that no new documents were submitted to Respondent Representative by the Claimant’s Legal Representative on or about 1 p.m. on Thursday 22 November 2012, the former had all the time to submit or communicate what difficulties he had with closing submissions” (page 19 of record)

I therefore find that in this ground of appeal is not likely to succeed.

Applicant also contends that the Arbitrator ought to have recused himself.  Applicant applied for the recusal of the Arbitrator on the 29 November 2012.  The opening sentences of annexure B to the founding affidavit show that this ground of appeal also has no merit.  The honourable Arbitrator wrote to Mr. Maguchu on 29 November 2012.

“It was today in the morning of 29 November 2012, on enquiring about payments of arbitration fees, that your client’s Ms Tsamba was told that the Award would be ready for collection that afternoon.  This afternoon around 3.15 pm your letter asking for my recusal in terms of the proviso to section 7 (1) (c) of SI 175/2012 was delivered to my offices.

The above paragraph serves to explain to you that your client is asking for the Arbitrator’s recusal late when the Award has already been made, and only awaiting collection by yourselves.  This therefore makes it impossible to recuse one when the job to be done had already been done and completed before any party had raised issue(s) of recusal.” (page 18 of record)

The concluding paragraph of the letter reads

“I therefore inform you as the Legal Representative of your client that recusal is already beyond this Arbitrator as the award had already been finalized before mid day of 29 November 2012.  To avoid further delays the Award is hereby attached …..”

It is inconceivable that Applicant is insisting that the Arbitrator should have recused himself when he was advised that the request was coming too late.

Regarding the issue of consulting employees and transfers the honourable arbitrator made factual findings which cannot be termed so grossly unreasonable so as to defy logic.

It is for the above reasons that I do not find merit in the application for rescission of default judgment and I consequently dismiss it with costs.

Dube, Manikai & Hwacha, Applicant’s legal practitioners

Sinyoro & Partners, Respondent’s legal practitioners