MATHONSI
J:
There
is absolutely no merit in this application for rescission of
judgment, an application informed more by a complete lack of
understanding of the role of this court in the registration of
arbitral awards made in terms of the Labour Act [Cap
28:01],
an Act of Parliament which in terms of s 89(6) has sought to oust the
jurisdiction of this court in all matters legal, but of a labour
nature. This is as it should be because the Labour Court is the
special court set up to deal with such matters but still has to be
empowered to enforce decisions coming out of it and its auxiliary
tribunals. Of course s171(1) (a) of the new Constitution which
overrides that Act, has restored this court's jurisdiction in all
matters civil and criminal.
The
applicant seeks a rescission of a judgment entered against it in
default on fools day in 2014 in terms of which this court, per
MANGOTA J, registered an arbitral award made by an arbitrator, R
Matsikidze on 16 October 2013 in terms of s98(14) of the Labour Act
[Cap
28:01].
Prior
to the grant of the order for registration, the applicant had been
served with the application for registration on 13 March 2014. It was
served upon its Human Resources Manager, one Simba Munondo, who says
on that very same day he had visited a dentist who authorised that he
be given over two weeks sick leave. It was as a result of what he
terms his “precarious health condition” that he forgot about the
application resulting in the judgment being granted in default.
Munondo
says it came as a surprise when the Sheriff came to attach property
on 29 May 2014, more than 2 months after the application had been
served and forgotten. The applicant's default was not wilful. Given
that on 4 December 2013, the applicant had filed an application in
the Labour Court for condonation of the late noting of an appeal
against the arbitral award, which application is yet to be set down
more than a year later, the arbitral award should not have been
registered. The applicant has a good defence against the application
for registration. For that reason, the order for registration should
be rescinded to accord the applicant an opportunity to contest that
application.
The
reasons given for the applicant's failure to act upon receipt of
the application for registration of the arbitral award are tenuous to
say the least. How can a whole company which boasts of the
employment of a human resources manager in the form of Munondo,
meaning that it has other departments as well, suffer paralysis
because its human resources manager has gone to consult a dentist and
been given time off? Surely someone else remained in the company to
run its affairs. Munondo must have had subordinates that held the
fort when he was away.
In
any event, how can a senior person like Munondo fail to delegate
responsibility to someone else and be so affected by a dental problem
as to be unable to assign someone to deal with the matter?
Clearly,
no reasonable explanation has been given for the failure to act
timeously.
The
application has been made in terms of r63 of the High Court of
Zimbabwe Rules, 1971 and the applicant should satisfy the court that
there is good and sufficient cause to rescind the judgment granted in
default. Good and sufficient cause to rescind has been stated as
being the reasonableness of the explanation for the default, the bona
fides
of the application to rescind the judgment, the bona
fides
of the defence on the merits of the case which carries prospects of
success. These factors must be considered not only individually but
also in conjuction with one another.
Stockhill
v
Griffiths
1992 (1) ZLR 172 (S) 173 D – F; Roland
& Anor v
McDonnel
1986 (2) ZLR 216 (S) 226 E – H; Songore
v
Olivine
Industries
(Pvt) Ltd
1988 (2) ZLR 210 (S) 211 C – F.
Whichever
way one considers the factors, the applicant has failed to show good
and sufficient cause to rescind. I have already stated that no
reasonable explanation has been given for failure to act. In addition
the application itself lacks bona
fides
and the applicant has not the slightest defence whatsoever to the
application for registration of the arbitral award.
It
cannot be a defence for one to say that an arbitral award which is
extant should not be registered because an application for
condonation of the late filing of an appeal against the award has
been made to the Labour Court. The registration or recognition or
enforcement of an arbitral award made in terms of the Act can only be
refused where an application for a stay of execution or suspension of
the award is made in terms of s92E (3) of the Act.
A
litigant who has challenged the arbitral award by way of an appeal or
review to the Labour Court must then approach that court for a
suspension or stay of the award in terms of s92E (3): Kukura
Kurerwa
Bus Company v
Mukwena
& Ors
HH 477/14; Greenland
v
Zichire
HH 93/13.
The
applicant did not seek a suspension of the award.
In
fact, it did not even appeal the award but did nothing until it ran
out of time. All it has done is to seek condonation which would
enable the filing of an appeal. The application for condonation has
not been prosecuted with any form of diligence leaving the applicant
without even the authority to appeal. There can be no basis for
refusing to register the award.
I
have no doubt in my mind that the applicant has been grossly remiss
in their handling of this matter as a result of which we now have an
arbitral award made in favour of an employee 1 year 3 months ago
which has not been honoured and has not been contested either.
Meanwhile the employee remains wallowing in poverty and was
definitely justified in approaching this court for the relief of
registration. He could not be expected to wait for the old rickety
chariot of Capri to trudge along treacherously at its chameleon speed
towards delivery of justice.
There
is a discernable attempt to deliberately slow down the wheels of
justice by an applicant intent on flaunting its financial muscle in
the forlon hope of wearing down the employee, who appeared before me
self-acting and obviously unable to afford legal representation.
Having
come to the conclusion that the application lacks merit, it simply
cannot succeed, I mention here for completeness only that I could not
hear the respondent because he was out of court. He failed to file
proper opposing papers.
In
the result, the application is hereby dismissed with costs.
Wintertons,
Applicant's
Legal Practitioners
