Luckstone Matanda v Easipark Harare (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/755/16
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/755/16

CASE NO. LC/H/328/16

HELD AT HARARE

ON 21 NOVEMBER 2016 & 2 DECEMBER 2016

BEFORE THE HON. MR. JUSTICE L.M. MURASI

IN THE MATTER BETWEEN:-

LUCKSTONE MATANDA						APPELLANT

AND

EASIPARK HARARE (PVT) LTD					RESPONDENT

For Appellant							Mrs. R. Peters

For Respondent							Mr. B. Furidzo

MURASI J.,

This is an appeal against the decision of the Negotiating Committee. The brief facts of the matter show that the appellant was employed as a Parking Marshall by the respondent. Following allegations of misconduct, appellant was suspended pending the convening of a disciplinary hearing. Appellant was however reinstated after a period of time. After reinstatement, appellant was informed that the misconduct charges were to be resuscitated. He was duly informed of the hearing date. On the hearing date, a letter was written by the Harare Municipal Workers’ Union seeking a postponement of cases scheduled to be heard on that date. The reason was that a Mr. Seremani, who was supposed to appear on behalf of the workers, was otherwise engaged in other court work. The Designated Officer responded to this correspondence stating that if no evidence was submitted to show the commitments of Mr. Seremani, the hearings would continue.

Appellant’s case was pencilled for the afternoon. Appellant duly appeared. He requested for ten (10) minutes from the hearing committee so that he could contact his legal representative. This was granted. Appellant did not come back to the hearing. The hearing proceeded in his absence. Appellant was found guilty and a recommendation for his dismissal made. He was accordingly dismissed from employment. Appellant appealed against this decision to the Local Joint Committee and the latter dismissed the appeal. Appellant further appealed to the Negotiating Committee which also dismissed his appeal. This is the decision which the appellant has brought before this Court on appeal.

Appellant’s grounds of appeal are as follows:

1. The Negotiating Committee grossly erred and misdirected itself by failing to make a finding on the appellant’s grounds of appeal, in particular;

a. That the appellant was denied legal representation and that his application for postponement was denied.

b. That the rules of natural justice were breached by the respondent.

2. The Negotiating Committee grossly erred and misdirected itself by finding that the appellant engaged in an illegal collective job action hence committed sabotage yet the appellant did not defend his case.

I should point out that Mrs. Peters withdrew the other ground of appeal when it became apparent that there was a duplication of two of the grounds of appeal.

Mrs. Peters made submissions centred mainly on the fact that appellant was denied the opportunity to present his case. She argued that on the date of the hearing, the appellant had written a letter requesting for the postponement of the matter in order for him to secure the services of a legal practitioner but this application was declined. It was further submitted that appellant’s legal practitioner had attended earlier in the morning and had been informed that the matter had been postponed. In her heads of argument, Mrs. Peters relied on various case authorities dealing with the audi alteram partem principle. She further pointed that the version of events by the respondent was disputed as the appellant was always present at the premises. Mrs. Peters raised an issue which was not part of the grounds of appeal to the effect that the Negotiating Committee had not considered the grounds of appeal raised by the appellant but instead had used its own grounds of appeal. She further argued that no reasons were given for the dismissal of the appeal.

Mr. Furidzo, for the respondent, had to apply for the withdrawal of the heads of argument filed after the Court had pointed out that these referred to a different matter altogether. He thereafter made an application to make oral submissions in light of this development. In the interests of justice, this application was granted. Mr. Furidzo submitted that appellant had waived his right to be heard when he left the venue of the hearing on the pretext that he was going to contact his legal practitioner. He stated that the hearing committee had waited for more than 30 minutes and appellant had not returned. It was argued that it was clear that the respondent could proceed to hear the matter in his absence as appellant had not returned. The appellant had therefore been found guilty of the charges in absentia. He argued that the appeal should be dismissed for lack of merit.

Precedent shows that the road dealing with walking out of proceedings is a well-beaten one. In Robert Dombodzvuku & Anor vs CMED (Pvt) Ltd SC 14/11 CHEDA AJA (as he then was) had this to say at pages 7 and 8 of the cyclostyled judgment:

“Even if the objection to the presence of Mrs. Madzorera was one of the reasons once their objections were over-ruled the Committee was entitled to proceed. There was therefore no breach of the audi alteram partem rule. The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the labour court holding that the appellants waived their rights to be heard by walking out of the disciplinary proceedings.”

In casu, the appellant attended the proceedings and requested to contact his representative. Elsewhere in this judgment it has been observed that the Designated Officer had indicated earlier in the day that if there was no evidence that Mr. Seremani was indeed engaged in the courts, no postponements would be granted. Appellant was aware of the position. It was sought to be argued by Mrs. Peters that her law firm was representing the appellant and was informed that the matter had been postponed. Asked by the Court as to why no letter was written by the law firm indicating that it was representing the appellant, she did not give a satisfactory response. Pressed further as to why appellant’s name was included in the letter from the Harare Municipal Workers Union when her law firm was representing the appellant, again she could not proffer any explanation. Mrs. Peters sought to argue that appellant was at the venue and had not walked out proceedings. This is not borne out by the record. Appellant knew that the hearing committee was going to proceed with the hearing. He chose not to attend. As stated by CHEDA AJA in the above-cited case, he waived his right to be heard. In my view, where a person wilfully waives his right to present his case and is negligent as to the consequences thereof, that litigant cannot be heard to invoke the principle appellant now seeks. The explanation tendered by Mrs. Peters in respect of the denial of appellant’s right to be heard is not reasonable to say the least.

Assuming that I am wrong in the determination of the unavailability of the audi alteram partem principle to the appellant, there is another issue which I requested Mrs. Peters to address the Court. This was on the question as to whether the judgment she is appealing against is not a default judgment. She sought to argue that this is not a default judgment. My view is that the hearing was done in appellant’s absence and it would qualify to be a default judgment. What amounts to a default judgment was discussed by GWAUNZA JA in Zvinavashe vs Ndlovu SC 4/06.  The Learned Judge had this to say at page 3 of the cyclostyled judgment:

“I do not find appellant’s argument to be persuasive. The defining feature or essence of a judgment granted after a party fails to appear is the ‘default’ of the absent party, that is his failure to do what he ought to have done. In casu, what the appellant failed to do was to appear and prosecute the application. Hence a judgment by default has been defined as one obtained by ‘non-resistance’.

Counsel for the respondent contends correctly that a default judgment can only be set aside by a successful application for rescission of the judgment under the rules of the relevant court. The application must be made by the defaulting party himself, as indicated by the expression, ‘purging his default’. It follows that in casu, the appellant’s default remained unpurged even as the learned Judge a quo considered the merits of the matter and gave reasons for his judgment.”

The above cited case clearly shows what a default judgment is and what should happen should there be a default judgment against a party. The doctrine of precedent clearly binds this Court in this regard.

In the result and for the afore-stated reasons the Court is of the firm view that the appeal is devoid of merit and is accordingly dismissed with no order as to costs.

J. MAMBARA & PARTNERS-		Appellant’s legal practitioners

KANOKANGA & PARTNERS-		Respondent’s legal practitioners