IN THE INDUSTRIAL RELATIONS COURT
OF MALAWI

LILONGWE REGISTRY

MATTER NO. 69B
OF 2001

BETWEEN:

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

-and-

M.C.T.U…………………………………..………………..RESPONDENT

CORAM:

 W.P.
MUSUKWA, REGISTRAR

I. Nkhoma, Counsel
for Applicant

V. Nyimba, Counsel
for Respondent

R U L I N G

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 22^nd day of May 2002 at Lilongwe.

REGISTRAR