Kinra Trading (Pvt) Ltd v Tambudzai Mukaro & ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 27 SEPTEMBER, 2023
JUDGMENT NO. LC/H/294/23 CASE NO. LC/H/326/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 27 SEPTEMBER, 2023

AND 03 OCTOBER, 2023

In the matter between:-

Kinra Trading (Pvt) Ltd

Versus

Tambudzai Mukaro & ors

Before The Honourable L. Hove, Judge:

For Applicant	: Mr. C. Mavhondo For Respondent	: Mr. K. Masasire

JUDGMENT NO. LC/H/294/23 CASE NO. LC/H/326/23

Applicant

Respondent

HOVE J:

This is an application for condonation to file a review application which is being sought to be filed outside the 21 days prescribed by law.

The application is opposed. A preliminary point was raised by the respondent. In their challenge of the application, the respondents stated that the application for condonation should be struck off for not being properly before the Court on the basis that the applicant seeks condonation to file a review against a default judgement.

It was submitting that one cannot seek review or appeal against a default determination. It was submitted that the proper procedure is to seek to rescind the decision granted in default. The Court was referred to the cases of

OK Zimbabwe Ltd vs Benjamin Tazvivinga SC 134/21

Guoxing Gong v Mayor Logistics (Pvt) Ltd and anor SC 2/17

Sibanda and anors v Nkayi Rural District Council 1999 (1) ZLR 32 (5), and

Daniel Chintengo v Trendcor & anor SC 67/19

The Supreme Court in the case of Guoxing Gong v Mayor Logistics (supra) stated as follows;

“it is trite that …no appeal lies to this Court Against a default judgement which is normally

reversed by rescission of judgement or a declaration of nullity…”

The same position against stated in the OK Zimbabwe case supra where the Court stated that;

“as the judgment that was given by the Court a quo was a default judgment in nature. The question that ought to be asked is whether one can appeal on the merits before the bar has been lifted.

According to our law, a party cannot appeal against a default judgement. The correct procedure would be for the party to make an application for the judgement to be rescinded first. See Chintengo v Trendor & anor SC 67/19.”

These cases all make the point that one cannot appeal against a default decision. The proper procedure is to seek rescission of the Judgement given in default.

In response to this preliminary point, the applicant argued through its representative that it is not seeking to rescind the designated agent’s decision. It was instead seeking a review of the procedures that led to the default judgement. He accepted that one cannot appeal against a default order but that a review can properly be sought of a default judgement.

The applicant further argued that one can seek the review of proceedings which were granted in default. The authorities that the respondents were seeking to rely on made reference to an appeal and were therefore distinguishable from the instant case. Reliance for the applicant’s submissions were placed in the case of MDC-T and Mavhangira & 13 others Judgement NO. LC/H/31/14. It was submitted that in that case the learned Judge had held that as long as there were reviewable issues, they can be reviewed even it’s a default Judgement.

The question that falls for determination is whether or not one can seek the review of proceedings held in default.

The Supreme Court has clearly stated in the authorities cited by the respondents that;

One cannot appeal against a default Judgement. The proper procedure is to apply for rescission of the default order.

The reasoning of the Supreme Court ‘is that default orders can be dealt with by applications for

rescission’. The rules also provide for the rescission of default orders. Can this position be different where the Court is dealing with a review application when the decision has been granted in default, I think not. The procedure in dealing with default decisions remains the same. The rules do not state that applications for rescissions can only be against default orders where a litigant seeks an appeal but not where a litigant is seeking a review.

In the Mavhangira case (supra) a similar argument arose. In that case, an application for stay of execution was made in terms of the Rules of the Labour Court which provide for stay pending the determination of an appeal. The rule does not state that an application for stay of execution can be made pending the determination of a review application.

An application for stay of executing was made in that case and it was challenged on the basis that the rules provide for applications for stay of execution pending the determination of an appeal. The rule do not say pending the determination of an application for review. The court was dealing with an application for review and not an appeal.

The learned Judge of the Labour Court (as he then was) said that;

“the argument by the respondents, essentially, is that the application for interim relief is wrong at law. It is defective in that it does not emanate from a pending appeal but a pending review.”

He was unable to uphold that argument, among his reasons, the Judge reasoned that the respondents (in that case) were making a very restrictive application of section 92 E (3) insisting that

the express mention of ‘appeal’ excludes ‘review’. He rejected the restrictive interpretation as it would result in contradictions. He reasoned as follows;

“the bottom line is that there is an order or determination which is being challenged, be it by review or appeal. Such challenge does not suspend the determination or order. What then is provided for is a mechanism for interim relief through an application for the suspension of the order or determination. I believe this is an instance were a purposive interpretation of the law can be properly made, to give effect to the intention of the legislature in one case and deny it in the other, where in both situations, it is sought that the determination in question be temporarily stayed.”

The learned Judge then held that the application for stay of execution pending review of the arbitral award was properly before him.

The similarities with the instant case are that the rules provide for rescission of orders made in default. An applicant seeks to appeal against the default order and the Supreme Court says that it cannot be done. One cannot appeal against a default order because the law provides a process of dealing with default orders and that is rescission. Another applicant approaches the Court and seeks a review of an order given in default. The respondent argues that it is in appeals that an applicant cannot appeal against an order in default but not in review applications. This with respect would not make any sense because the rules state that default judgements can be rescinded and does not state that this is only so when one is seeking an appeal and not a review. The bottom line as my brother Judge stated is that the law has provided for the manner in which default orders/judgements can be dealt with. That is by way of applications for rescission. This procedure is provided regardless of the fact that one may be appealing or seeking a review. There is therefore no cogent reason to restrict the reasoning of the Supreme Court to apply only in instances where one is intending to appeal and not where one is seeking a review.

It is therefore this Court’s finding that the principles enunciated in the OK Zimbabwe case (supra) and also in the Guoxing case (supra) are applicable in both instances that is when one intends to appeal and when one intends to seek a review. I, again, find that there is no merit in the arguments raise in behalf of the applicant.

Order:

The matter is improperly before the Court and it be and is hereby struck off with costs.