Goromonzi High School v Goromonzi High School Employees

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/420/16
HELD AT HARARE 5th JULY, 2016
CASE NO LC/H/977/12
& 8th July 2016
JUDGEMENT NO LC/H/420/16
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IN THE LABOUR COURT OF ZIMBABWE        	 JUDGEMENT NO LC/H/420/16

HELD AT HARARE 5th JULY, 2016               		   CASE NO LC/H/977/12

& 8th July 2016

In the matter between:-

GOROMONZI HIGH SCHOOL				-	APPELLANT

AND

GOROMONZI HIGH SCHOOL EMPLOYEES      	-  	 RESPONDENT

Before the Honourable B.T Chivizhe: Judge

For Appellant	: Mr I. Goto (Legal Practitioner)

For Respondent	: In default

CHIVIZHE, J;

The matter was placed before me as an appeal against an arbitral award wherein the Arbitrator had directed that the Appellant pay the Respondents the total amount of US$33 152.60 n underpayments. The Appellant was seeking the setting aside of the award. The appeal was opposed by the Respondent.

The parties appeared before the court on at least three occasions. On the last two occasions the matter was postponed to enable the parties to engage each other with a view to a possible out of court settlement of the matter. On the 23rd of May 2016 both parties appeared in chambers and advised the court that they had failed to reach settlement. The negotiations had apparently stalled as the Appellant had taken the position that it was willing to pay the Respondent the amount of  US $15 000 out of the US $33 000 awarded by the Arbitrator. The payment would be in full and final settlement of the matter. The reason tendered was that the Appellant was facing financial challenges and had no capacity to settle the whole amount. The Respondent was opposed to the offer. The parties having agreed to explore further the possibility of a payment plan the court then postponed the matter for a further two weeks. The parties were duly warned to appear on the 5th of July, 2016.

On the 5th of July, 2016 the Appellant’s counsel appeared with client. The Respondent were in default of appearance. The Appellant counsel then applied for a default judgment to be granted in Appellant’s favour. He indicated that he was however seeking an alteration in the relief initially sought. Whereas in its original papers the Appellant was seeking for a setting aside of the whole award handed down by the Arbitrator the Appellant was now seeking for an alteration / variation of the relief in that the Appellant was seeking for a setting aside and substitution of the award so that the Appellant shall pay only US$15 000 to the Respondents. This amount would be in full and final settlement of the amount awarded by the arbitrator. In seeking this relief counsel indicated that Appellant’s position throughout the proceedings was that it had sought for exemption from the relevant NEC to pay stipulated wages. The NEC had however not granted the application. This was the position even when the parties appeared before the Arbitrator. A perusal of the record would show that the Arbitrator had addressed the point and dismissed it on the basis that the exemption not having been granted the Appellant was still liable to pay the minimum wages as drawn up in the relevant Collective Bargaining Agreement for 2011.

The issue that has exercised the court is whether it would be proper to grant a default judgment in favour of the Appellant on the terms as sought by the Appellant.  It is apparent from the papers before me that the relief the Appellant was seeking in noting the appeal was for the setting aside of the entire arbitral award. From the oral submissions made before me it is clear that the Appellant is now conceding that it is liable to pay the outstanding amount as awarded by the Arbitrator. The Appellant is however pleading incapacity inability to pay the total amount due to financial challenges.  It is not clear why Respondent representative has not made an appearance today.  The Respondent through their representative have so far put up a spirited defence to this appeal. Against this background it would not be fair to grant a default judgment in Appellant’s favour on the terms as sought by the Appellant’s counsel .The justice of the matter demands that the Respondent be allowed to be heard on this point. In the circumstances the court cannot grant the default judgment in the terms as sought. It is accordingly ordered as follows;

The application for a default judgment be and is hereby dismissed with no order as to costs.

Muunga & Company, appellant’s legal practitioners