Godfrey Panganayi Nyamuremwa and Dickson Makombe v University of Zimbabwe

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/175/25
HELD AT HARARE 27TH MARCH 2025
CASE NO. LC/H/104/25
AND
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 27TH MARCH 2025
AND
In the matter between
GODFREY PANGANAYI NYAMUREMWA
DICKSON MAKOMBE

1st APPLICANT
2nd APPLICANT

And

UNIVERSITY OF ZIMBABWE
RESPONDENT

BEFORE THE HONOURABLE MAKAMURE J, JUDGE.

FOR BOTH APPLICANTS : A. CHIKORO
FOR THE RESPONDENT : A CHAGUDUMBA

MAKAMURE J:
This is an application for rescission of a default judgment entered against the applicants. It is opposed.

In order for an application of this nature to succeed requirements which include the following must be met :((i) the reasonableness of the explanation for the default; (ii) the bona fides of the application to rescind the judgment and (iii)the bona fides of the defence on the merits of the case and whether that defence carries prospects of success. Stockil v Griffiths 1992

(1) ZLR 172 (S).See also : Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210
(SC);Government of the Republic Zimbabwe v Fick and Others 2013 (5) SA325 (CC);
Industry Pension Fund v United Refineries Ltd &2 Others HH313-12.

At the commencement of the hearing the applicants’ legal practitioner asked for a document which was supposed to be his affidavit to be expunged from the record. This was so because it was not signed by him. Only the commissioner of Oaths’ signature appeared. The document was duly expunged from the record. This means that there was no supporting affidavit to the applicants’ application.

The facts of this case are that the applicants are former employees of the respondent. They were charged with acts of misconduct for: ‘Any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his/her contract...’ This was a violation of provisions of the respondent’s Employment Code. The allegations against them were that they used their bank cards on behalf of clients/students so that at the end of a transaction where payment was made using swipe machines, they would get United States Dollars and they in turn paid in local currency through the swipe machines. When disciplinary proceedings were conducted against them, the disciplinary committee acquitted them. The Vice Chancellor of the respondent altered the verdict from ‘not guilty’ to one of ‘guilty’. They were aggrieved by this eventuality. They appealed to the appeals committee. The appeals committee dismissed their appeal hence the present appeal. When the matter was set down for hearing through the IECMS, there was no appearance on their behalf. As a result, a default judgment was entered against them. This has necessitated the present application.

The two applicants deposed to affidavits. The reason for the default according to them was that they had challenges in connecting to the system such that they could not be part of the virtual hearing. Their practitioner could not join the system due to those challenges. This resulted in the default judgment being entered against them. The legal practitioner is said to have later physically gone to the courthouse and was advised of the default. The applicants also say that they have prospects of success on the main matter because they are not the only ones who were involved in the practice referred to above. The 1st applicant is said to have used his card to swipe on only four times and the 2nd is said to have used it thirty-six times. They therefore assert that they were discriminated against by being singled out to face misconduct charges. They also say that the Vice Chancellor had no authority to alter the verdict as was done alleging that this was a violation of S8(3)g as read with S22 of the University of Zimbabwe Act, Chapter 25:16.

The position submitted on behalf of the respondent is that the applicants’ explanation is not acceptable. Reference was made to provisions of r34. On the basis of r34 it was argued that the applicants’ explanation was unacceptable. It was further argued that the procedure which the Vice Chancellor adopted was a matter of procedure and should therefore be taken on review and not appeal. It was further argued that since there was no explanation from the applicants’ legal practitioner, the application is invalid. It was submitted that there are no prospects of success on appeal.

Rule34(l) of the Rules of the Court 2017 provides as follows:

'(l) if a party fails to attend a virtual hearing, having agreed or been directed to participate in the hearing, and there being no technical default attributable to the platform itself, such party shall be subject to default judgement proceedings, and it shall not be competent for it to plead lack of the requisite technical resources if it had not raised that issue with the Registrar before the start for the virtual hearing;'

In **Sonngore** (above)it was held that (Headnote):

‘While the courts are inclined to frown on plaintiffs who snatch at their judgments, the impression must not be given that the Rules may be flouted with impunity or that rescission of a default judgment given in such circumstances will be granted on request. An acceptable reason must be given for the delay. A defendant who admits that he was negligent in his tardiness may nonetheless be granted rescission if he shows bona fides; indeed, the court might be unjustified in condemning him for a very short delay, although his explanation for it is inadequate, if the defendant were found to be acting bona fide and had a prima facie defence. To show this it is normally sufficient for the defendant to set out averments which, if established at the trial, would entitle him to the relief asked for.’

In Industry Pension Fund v United Refineries & 2 Others HH 313-12 the High Court, (Dube J) stated that:

‘The applicant has failed to file a supporting affidavit from its former lawyer who prepared the opposition papers giving a chronology of his involvement in this matter and the reasons why he refused to set out the applicant’s full defence. This failure presents a difficulty to the applicant’s case. Ultimately, there is no comprehensive and inclusive explanation for the omission of this information. ... There is a plethora of cases where it was decided that in any case where a party seeks to redress or explain a procedural omission, irregularity or wrongful conduct which he attributes to the conduct of his legal practitioner, it is imperative to outline fully that position in its papers. The best way to achieve this is to request such legal practitioner to depose to a supporting affidavit outlining the role that he or she played in that matter. The court is not satisfied that the applicant has advanced a full and satisfactory explanation for the failure to include this information in its opposing affidavit.’

In the present matter the explanation was supposed to be contained in an affidavit deposed to by the applicants’ legal practitioner. There is no affidavit deposed to by the legal practitioner. This means that there is no reasonable explanation for the default. As correctly submitted on behalf of the applicant without an affidavit from the applicants’ legal practitioner explaining the reasons for the default, there is no valid application before the Court. Industry Pension Fund (above). On this basis alone the application should fail. Regarding the prospects of success, the fact that applicants are not the only ones who committed the offence in question does not absolve them from liability. It is the responsibility and discretion of an employer to prefer charges of misconduct against employees. In **Zimbabwe Banking Corporation Limited v Saidi Mbalaka SC 55/15** the Court quoted with approval the dicta in Lancashire Steel (Pvt) Ltd v Mandevana & Ors SC 29/95 as follows:

“Arguments may be addressed *ad misericordiam* as to how unfair it is that the four respondents out of a number of forty workers who participated in the collective unlawful job action should have been selected for punishment, but such arguments cannot absolve them of their breach of their statutory duty not to participate in such action. It is not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment. **If they are guilty it is not in law relevant that others may be guilty.”** (Emphasis added).

Default judgment was entered against the applicants on 24th January 2025. The application before the Court was filed on 6th February 2025. It was made within a period of twenty-one days as envisaged by r40 of the Rules of this Court 2017, as amended. However, there was no supporting affidavit from the legal practitioner. There is therefore no reasonable explanation for the default. The absence of the legal practitioner’s affidavit means it is not possible to determine whether or not provisions of r34(1) were complied with. The application is therefore invalid. Further on the prospects of success, once the offence is admitted, one cannot talk of prospects of success. There are none. On the basis that there is no valid application before the Court, the matter must be struck off the roll.

Accordingly, it is ordered that:

The application for rescission of judgment be and is hereby struck off the roll with costs.


MACHEYO LAW CHAMBERS, APPLICANT’S LEGAL PRACTITIONERS.

ATHERSTONE & COOK, RESPONDENT’S LEGAL PRACTITIONERS.
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