Alec Danda v Satex Incorporated (Private) Limited

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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 1ST FEBRUARY 2024
JUDGMENT NO. LC/H/132/24
CASE NO. LC/H/956/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 1ST FEBRUARY 2024

AND 25 MARCH 2024

In the matter between

ALEC DANDA

And

JUDGMENT NO. LC/H/132/24 CASE NO. LC/H/956/23

APPLICANT

SATEX INCORPORATED (PRIVATE) LIMITED	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE , JUDGE.

FOR THE APPLICANT : MR A. CHAMBATI (LEGALPRACTITIONER) FOR THE RESPONDENT : MR O. MAKONYA ( INDUSRTIAL RELATIONS

OFFICER)

MAKAMURE J:

This is an application for review. This follows the dismissal of the applicant by respondent following disciplinary proceedings. At the conclusion of the proceedings a default judgment was entered against the applicant. The applicant asserts that he was there and indeed initially the record shows that he was present. He says he excused himself and left the proceedings in order for him to go and collect his lawyer who was failing to locate the venue where the proceedings were being conducted. When he returned with his lawyer, he realized that the proceedings had continued during his absence. A determination was reached without his input with the presiding authority noting that he was absent. Aggrieved by the manner in which the proceedings were conducted , he filed the present application. Both parties had preliminary points to raise before this Court before the main matter could be argued.

Preliminary issue raised on behalf of the applicant will be considered first. Thereafter the preliminary issues raised on behalf of the respondent will also be considered.

Preliminary point raised on behalf of the Applicant

The applicant had one preliminary issue. It had to do with the absence of a date on the affidavit deposed to on behalf of the respondent.

It was argued on behalf of the applicant that the opposing affidavit filed on behalf of the respondent is not dated and therefore fatally defective. It was in the circumstances submitted that there is no opposition and the application should be treated as unopposed and the application be granted. The applicant relied on case law which included Mike Mandishaya v Maria Sithole HH798/15; Firstel Cellular (Pvt) Ltd v NetOne Cellular (Pvt) Ltd S-1-15.

In response it was argued on behalf of the respondent that there is a principle that labour issues ought not to be resolved on the basis of technicalities. It was argued that even if it were defective there is a properly filed notice of opposition .It was argued further that not all procedural irregularities are fatal. It was submitted that the applicant’s insistence on technicalities is proof that he has no case on the merits.

It is correct that the affidavit filed on behalf of the respondent is not dated . This can be a fatal defect as authorities relied on by the applicant show. I say ‘can’ in view of the provisions of the Rules of this Court Statutory Instrument 150 of 2017 (the Rules) which empower a Judge of this Court or the Court to make directions to ensure that equity is done to and between the parties (r32(b). Further with regards to the principle that labour matters ought not to be resolved on the basis of technicalities , the principle requires that the technicalities in question be corrected and not ignored. It is therefore not appropriate to state the principle in part as that can be misleading. See Dalny Mine v Banda 1999(1) ZLR 220 (S). If technicalities were ignored, this would lead to non -observance of rules. That is not desirable. In the circumstances of the present matter my view is that it would be inequitable to dismiss the opposing papers as the Court should do. Mike Mandishayika v Maria Sithole HH 798. The Court in its discretion has considered that the Registrar of this Court received the respondent’s papers and stamped them on the 27th of November 2023. The Court will consider that date as the date on which the affidavit was sworn to. For that reason, the affidavit will be considered to be properly before the Court. The preliminary issue is accordingly dismissed.

Preliminary issues on behalf of the Respondent.

The preliminary issues on behalf of the respondent are that (i) the applicant approached this Court prematurely before exhausting domestic remedies ;(ii) the applicant’s legal practitioner is not properly before the Court as he has not filed an assumption of agency as required by

the Rules; and (iii)the draft prayer is defective. In view of these preliminary issues raised on behalf of the respondent it was submitted that there is no application before the Court.

In response it was argued on behalf of the applicant that the application is properly before the Court . It was argued that the applicant could not have exhausted the domestic remedies in view of the fact that a default judgment was entered against him and such a judgment cannot be appealed against. The only course of action for him to take was to approach this Court. It was argued with respect to the assumption of agency that the legal practitioner had since filed an assumption of agency as required by Rule 25(c). On the prayer it was argued that the prayer was only a draft . It was argued further that this is a review matter for which if the application succeeded , the status quo ante of the parties would be restored. In view of these reasons it was submitted on behalf of the applicant that the preliminary issues have no merit .

In the present matter the applicant seeks review .This is provided for in s92EE of the Labour Act Chapter 28:01 (the Act) which reads as follows:

s92EE Grounds of review by Labour Court

‘(1) Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with is Act may be brought on review before the Labour Court shall be—

absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned:

gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.’

Thus, where a litigant is aggrieved by any issue which falls under the above provisions, they have a right to approach this Court. Further in the present matter the respondent has indicated that the applicant approached this Court prematurely in that he did not exhaust domestic remedies. However, it has not been indicated whether or not in terms of the applicable code a default judgment can be appealed against. It is a settled position in this jurisdiction that a default judgment cannot be appealed against. The remedy for a default judgment is an application for rescission .In Ok Zimbabwe Limited v Benjamin Tazvivinga SC134/21 the Supreme Court stated that: ‘According to our law, a party cannot appeal against a default

judgment. The correct procedure would be for that party to make an application for the

judgment to be rescinded first.’ This means that the question of the applicant approaching this Court prematurely has no merit. With respect to the legal practitioner not having filed an assumption of agency, the applicant’s legal practitioner has since complied with the Rules.

Obviously the legal practitioner did not need the respondent to raise this issue in order for him to comply. He should have simply done the correct thing from the beginning especially considering that he is an officer of the Court and the provision in question is mandatory.

However ,his compliance is in line with the principle enunciated in Dalny Mine v Banda (above). On the question of the prayer the submission on behalf of the applicant was that remitting the matter to the lower tribunal was an appropriate remedy. I agree. Where an application for review succeeds and the determination of that tribunal is set aside, it will be proper for an applicant to ask that the matter be remitted to the lower tribunal and the status quo ante of the parties is restored. See Zimbabwe United Passenger Company v Beaular Mashinge SC 21/21.

After considering all the preliminary issues raised on behalf of the respondent, I find that they have no merit. They are all dismissed.

I have already dismissed the preliminary issue which was raised on behalf of the applicant. What remains is that the merits of the application for review be heard. The appropriate order will be made.

In view of the foregoing it is ordered that:

The preliminary issue raised on behalf of the applicant be and is hereby dismissed.

The preliminary issues raised on behalf of the respondent be and are hereby dismissed.

The Registrar is directed to set the matter down for hearing on the next available date.

There is no order as to costs.

CHAMBATI MATAKA &MAKONESE

ATTORNEYS AT LAW,	APPLICANT’S LEGAL PRACTITIONERS