Bhaqzari Makombe v Nicks Auto Engineering (Pvt) Ltd t/a Nicks Motors

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/190/25
NO.
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IN THE LABOUR COURT OF ZIMBABWE NO.

HELD AT HARARE 14TH MAY 2025

AND

In the matter between

BHAQZARI MAKOMBE

And

NICKS AUTO ENGINEERING (PVT) LTD

T/A NICKS MOTORS

JUDGMENT NO. LC/H/190/25

CASE NO. LC/H/231/25

APPLICANT

RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE JUDGE

FOR THE APPLICANT : O. MAKONYA

FOR THE RESPONDENT:MS A. BANGA

MAKAMURE J:

This is a judgment on a preliminary point raised on behalf of the applicant in an application

for review.

The facts are common cause. They are as follows. The applicant filed the application for

review and duly served the respondent. The respondent was supposed to have filed the notice

of opposition within ten (10) days of receipt of the application, that is to say, by the 31st of

March 2025. It did not do so . Instead it filed the notice on the 4th of April 2025. This was

obviously out of time. There was no application for condonation for the non-compliance.

When parties appeared in Court the applicant raised a preliminary issue that the failure to

file the notice timeously meant that the respondent was barred for failure to comply with the

rules and therefore had no right of audience until the non-compliance was purged. Mr

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Makonya who appeared on behalf of the applicant, submitted that the respondent fell foul of

provisions of Rule 29(b)(i) of the Rules of this Court, 2017. It was submitted on behalf of the

applicant that under the circumstances the application for review was unopposed and should

be granted as prayed. It was submitted that respondent should face the consequences of the

non-compliance. Some of the authorities cited in support of the applicant’s case were S v

MacNab 1986(2) ZLR 280;Brooklands (Pvt) Ltd v Save Valley Conservancy HH 283/13.

In response, Ms Banga who appeared on behalf of the respondent stated that one of the

reasons which resulted in the respondent failing to file the notice in time was violence which

was expected to happen on the 31st of March and 1st April 2025. In view of that situation their

offices were closed. Ms Banga asked the Court to exercise its discretion to condone the late

filing under the circumstances.

In response Mr Makonya submitted that the Rules do not make the last date of filing the only

date on which to file process. He pointed out that before that date the respondent was well

aware that they had a deadline to meet. In the circumstances the respondent ought to have

taken action before the 31st of March 2025. It was submitted that the threats of violence

which were associated with the 31st of March 2025 could not be used as an excuse for non-

compliance with the Rules. The respondent had therefore not shown good cause for failing to

comply with the Rules. Mr Makonya urged the Court to uphold the preliminary point and

grant the application for review.

The Rules provide as follows:

‘ 29. Where party fails to file notice of response

Where the respondent fails to file a notice of response within the period specified in

rules 14, 19 or 20 and that

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party fails to comply, the matter shall nevertheless be set down in terms of rule 28 and

if, on the day of hearing, the defaulting party—

(a) appears and shows good cause why he or she did not file a notice of response, the

Court may according to the nature of the case, or as the justice of the case requires—

(i) postpone the matter to enable the defaulting party to comply; or

(ii) proceed to determine the matter;

or

(b) does not appear or fails to show good cause why he or she did not file a

response, shall be barred, and the Court may, according to the nature of the case, or

as the jus-tice of the case requires—

(i) enter a default judgment against the defaulting party; or

(ii) proceed to determine the matter.’( Emphasis added).

In the present matter the respondent says one of the reasons that caused it to fail to comply

with the Rules is that there were threats of violence on the 31st of March 205. It did not

indicate any other reason despite the assertion that the threats of violence were only one such

reason. The respondent does not say why it could not file the notice on any other day or date

instead of waiting for the 31st of March. In Sv McNab (supra) the court stated that :

‘It is for the applicant to satisfy this court that there is sufficient cause for excusing

him from compliance…’

In the present case the respondent’s explanation does not in my view amount to good cause as

envisaged by the Rule. If the anticipated violence was only one of the reasons, the other

reasons ought to have been proffered. It is trite that rules are made for proper running of the

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courts. Chikura and Anor v Al Shams Global BVI Limited SC17/2017. Their non –

observance therefore affects such proper running of courts and the administration of justice.

What is distressing , is that non-compliance with rules delays finality to litigation and is

therefore inconsistent with the purpose of the Labour Act , Chapter 28:01.The situation is

particularly unacceptable where a litigant is legally represented . Legal practitioners being

officers of the court are expected to ensure that rules of court are complied with. Their failure

to do so cannot be condoned.

In view of the foregoing, the preliminary point has merit. It is upheld. This means that the

respondent is barred. Default judgment is therefore granted in favour of the applicant as

prayed.

Accordingly , it is ordered that:

1. The preliminary point raised on behalf of the Applicant being merited, it be and is

hereby upheld.

2. The Respondent having failed to show good cause , as required by Rule 29 (b) , why

it failed to timeously file the notice of response, a default judgment is accordingly

entered in favour of the Applicant.

3. The determination by the Disciplinary Officer dated 26April 2023 be and is hereby set

aside.

4. The Respondent be and is hereby ordered tom reinstate the Applicant to his post

without loss of salary or benefits with effect from the date of dismissal. In the event

that reinstatement is no longer possible the Respondent be and is hereby ordered to

award the Applicant damages in lieu of reinstatement as agreed between the parties.

Should parties fail to agree either party is free to approach this Court for

quantification.

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5. The matter is remitted back to the employer for a hearing de novo in a procedurally

correct manner.

6. Respondent bears the costs.

MAGOGE LAW, RESPONDENT’S LEGAL PRACTITIONERS.