Capri (Pvt) Ltd v Maponga (HC 5160 of 2014) [2015] ZWHHC 92 (3 February 2015)

1 HH 92-15 HC 5160/14 CAPRI (PVT) LTD versus HOWARD MAPONGA HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 28 January 2015 and 4 February 2015 Opposed Application E. Donzvambeva, for the applicant Respondent in person 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 s 171(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 s 98(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. HH 92-15 HC 5160/14 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 For that reason, the order for registration should be rescinded to accord the applicant an opportunity to contest that application.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 r 63 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. HH 92-15 HC 5160/14 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 s 92E (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 s 92E (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