In
chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.
This
application is brought in terms of 'Rule 63 as read with Rule
449(1)(a) of the High Court Rules, 1971 for condonation of the late
noting of an application for rescission of a default judgment given
in chambers by MAVANGIRA JA in chambers on 13 July 2017.
The
applicant states that he learnt of the judgment on 28 July 2017. He
approached the second respondent who advised him to seek legal
assistance. His legal practitioners attempted to file an application
for rescission but this was rejected by the second respondent who
believed the Rules did not provide for such an application. After a
series of comings and goings, and much discussion with the registry
staff, the applicant's legal practitioners eventually filed this
application on 6 November 2017.
The
applicant attached to his papers a return of service by the Deputy
Sheriff dated 21 June 2017 indicating that there was merely an
attempted service at the applicant's address for service which is
the address of the applicant's Trade Union. He averred that since
the notice was not served on him the default judgment ought to be set
aside and he be allowed to file an application for rescission of the
default judgment - a copy of which application was attached to his
founding papers.
The
applicant further averred that as far back as 19 April 2017, when
collecting a letter from the second respondent relating to the
payment of security for costs, he had advised the second respondent
of his change of address. He attached, in support, a letter from the
second respondent of 19 April 2017 showing that he had indeed
uplifted the letter on that date. The letter bore the applicant's
name and new address. Despite this, he averred, the second respondent
had continued to use the old address. His default was, therefore, not
wilful and the reason therefor had been satisfactorily explained.
He
averred, further, that the application for leave to appeal was not
'doomed to failure' since the Labour Court's error on the
composition of the Grievance and Disciplinary Committee of the first
respondent has 'since been pronounced by this Court in another
similar matter.'
The
supporting affidavit by Governor
Pendei,
the legal practitioner, confirmed the application was drawn on 30
August 2017 but encountered administrative hurdles at the office of
the second respondent which hindered the timely filing thereof. He
averred, without more, that the application enjoyed 'high prospects
of success as explained in the founding affidavit.'
Counsel
for the first respondent submitted that the application for
rescission bore no prospects of success as there were no prospects
that the application for leave to appeal might be successful.
The
genesis of the matter, as appears from the judgment of the Labour
Court refusing leave to appeal, is that “the applicant was
dismissed from employment by respondent after due process. The
applicant appealed to the Labour Court which dismissed its appeal”.
That was in January 2014. In June 2014, some five (5) months after
the date for filing an appeal had expired in terms of the Labour
Court Rules, the applicant filed an application for condonation of
the late noting of an application for leave to appeal. That
application was dismissed by the Labour Court mainly on grounds that
there were no prospects of success on appeal.
On
May 14 2015, the applicant sought leave of the Labour Court to appeal
against its order dismissing the application for condonation. The
Labour Court considered the three (3) grounds of appeal raised,
namely, whether the disciplinary committee was properly constituted,
whether there was evidence, on a balance of probabilities, against
the applicant, and whether it was competent for the Disciplinary
Committee, mero
motu,
to call witnesses. After considering the grounds of appeal and
finding them to be devoid of merit, the Labour Court expressed the
view that in any event the applicant had not shown that the court
which dismissed the application for condonation had exercised its
discretion improperly. It therefore dismissed the application for
leave to appeal.
In
his submissions, counsel for the applicant justified his application
in terms of the High Court Rules by stating that the application was
properly brought in terms of the said Rules as the Supreme Court
Rules are silent on this subject without citing the relevant Rule of
the Supreme Court.
In
my view, legal practitioners ought to cite the relevant Rule in terms
of which an application is placed before the courts. Merely to assume
that the court is aware of its Rules is insufficient. The Rules are
to be cited for the purpose of drawing the attention of the Registrar
as well as the opposing party to the legality of the course taken by
the applicant. Had the applicant cited the correct rule of this Court
empowering him to adopt the course which he did most of the time
wasted in argument and discussions with the second respondent would
have been avoided.
In
order to succeed in the instant application, the applicant had to
establish, among other considerations, that the application for
rescission of judgment to be placed before this Court enjoys
prospects of success. As explained to counsel for the applicant, the
applicant made no averments in his founding affidavit that would
satisfy me that on that score. Neither the two judgments of the
Labour Court dismissing his appeal and his application for
condonation, nor the record of proceedings, was attached to his
papers. In addition, nothing has been averred which shows an improper
exercise of the discretion of the Labour Court which dismissed the
application for condonation. The fact that the court's decision was
not to the applicant's liking is insufficient to invoke the limited
powers which the Supreme Court has to interfere with a judicial
exercise of discretion by a primary court. The bland averment,
without more, that the Supreme Court has pronounced otherwise is most
unhelpful.
In
my view, it has not been shown that there are prospects of success on
appeal both on the grounds of appeal raised as well as the fact that
no impropriety has been shown in the manner in which the Labour
Court's discretion to dismiss the application for condonation was
exercised.
While
this is not an appeal against the decision of the Labour Court, its
reasons for denying the application for leave to appeal cannot be
ignored.
For
the above reasons, the application for rescission of judgment has no
prospects of success and the instant application for condonation is
accordingly dismissed with costs.
