Kawala v M.C.T.U - Matter No. of 2001 ( of 2001) [2002] MWIRC 20 (22 May 2002);




MATTER NO. 69B OF 2001


M. KAWALA………………………………….………..……APPLICANT





I. Nkhoma, Counsel for Applicant

V. Nyimba, Counsel for Respondent


This matter was brought by the respondents at this stage. They are applying to set aside a default judgment entered against them having obtained a stay of execution of the resulting order for payment of compensation.

There was real confusion at the beginning as Counsel for the Respondent, who was appearing for the first time, seemed not to have been briefed properly on the processes that this matter has undergone.

In a nutshell, the processes were that first a default judgment was entered; then assessment of compensation followed in the absence of the respondent but before the date of set down of assessment of compensation approached the respondent had written the Court requesting an adjournment.

It should be pointed out here that the Curt did note at this hearing that the respondents had filed a Statement of Reply to the claims made by the applicant. The filing however was done well after a judgment in default had already been entered. So even if the Statement of Reply had been seen at the time of assessment of compensation this would not have had any effect on the assessment.

I heard the arguments of both parties which were done so eloquently and meaningfully.

It is very clear from the evidence on record that the respondents had intended to defend the action. But due to ignorance about the procedure they filed a defence after the default judgment had been obtained by the applicant. It does appear that they were awoken by the default judgment. What they should instead have done was to file an application to set aside the default judgment. The filing of the defence had no meaning or effect on further processes leading to conclusion of the matter.

It was thus in order for the Court to proceed with assessment. When the respondents were served the notice of assessment their reaction was to request for an adjournment. This I took, I fell rightly, to mean an admission by the respondents that they had no problem with the default judgment. That is why the Court ordered that payment be made into Court since the respondent merely wanted to be heard on the issue of assessment only.

I need to make it very clear at the outset that this Court is guided in its operation when it comes to procedure by its own rules: the Industrial Relations Court (Procedure) Rules 1999. One of the outstanding features is that the Rules are not as legalistic or as formal as the rules of ordinary Courts of Law. See Labour Relations Act, Section 71.

The Industrial Relations Court is more concerned with dispensing substantial justice. And in this respect attaches a great deal of emphasis on equity or fairness. See Industrial Relations Court (Procedure) Rules 1999, Rule 25 (4). All this in my view means that the Industrial Relations Court should not be unduly bogged down with technicalities. If it were to be equity considerations would surely be compromised.

I further note that Rule 25 (1) (h) gives powers to the Court to "……rescind on good cause being shown any order made by it in the absence of a party." It is thus my view in the light of this Rule that any order can be set aside as long as a party puts up a convincing argument.

Further to this, sight should not be lost of the fact that the order of compensation herein arose from a judgment in default. Such judgment is without merit as it is based on the evidence of only one party. It would therefore, in my view, be unfair for Courts to be very rigid to request by defaulting parties to be afforded an opportunity to be heard.

I would also apportion some blame to the Office of the Registrar which office in terms of Rule 5 of the Industrial Relations Court (Procedure) Rules 1999 is duty bound to advise and assist indigent litigants to process their matters before this Court. The Office of the Registrar should have advised the respondent to first apply to have the default judgment set aside. This was apparently never done. The Court simply accepted the filing of the Statement of Reply (IRC Form 2). It all ended there.

Having said all the above I do think that it is only proper that the respondents herein be allowed to file appropriate application(s) seeking an opportunity to be heard; there should be no requirement that payment into Court ordered earlier be made as a pre-condition for the Court to accept filing of the application(s). And I do so order.

The application(s) must be filed within 14 days from the date hereof.

MADE in Chambers this 22nd day of May 2002 at Lilongwe.