Minesh Bhika v ENR - ZIM Resources (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE 23 JULY 2024
JUDGMENT NO LC/H/235/25
CASE NO LC/H/521/24
AND
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IN THE LABOUR COURT OF ZIMBABWE HARARE 23 JULY 2024

JUDGMENT NO LC/H/235/25 CASE NO LC/H/521/24

AND

1ST JULY 2025

MINESH BHIKA	APPLICANT

ENR – ZIM RESOURCES (PRIVATE) LIMITED	RESPONDENT

Before the Honourable Chivizhe, Judge:

For the Applicant	Mr M. Chizhande

For the Respondent	Mr P.C. Fanti with Ms L.R. Khumalo

CHIVIZHE, J:

The delay in the hand down of this judgement is sincerely regretted. This is a composite application for (a) condonation to be allowed to rectify the defective notice of response filed under matter LCH/274/24 and (b) rescission of the Default Order granted by this court under matter LC/H/274/24 on 14 May 2024. The application is opposed.

BACKGROUND FACTS

The Applicant was employed by the Respondent as a Personal Assistant to the Director of the Respondent. He was engaged on the basis of a contract without fixed duration from January 2023 to April 2023 when the contract of employment was terminated. Aggrieved the Applicant lodged a claim of unfair dismissal with the Designated Agent National Employment Council Mining Industry. On the basis of section 12(4)(a) of the Labour Act [Chapter 28:01] he believed he was entitled to three months’ notice. As he had been earning a salary of USD 1000 per month, he was thus claiming US$3000. In relief he was praying for payment of Notice-Pay as he claimed that he had not been given notice neither was he paid the same. In his determination handed down on 19 February 2024 the Designated Agent, after considering the submissions of the parties and the position of the law, came to the conclusion that Respondent owed Applicant unpaid Notice Pay Leave days and compensation for loss of employment. He

awarded the Applicant his claim for USD$3000 for Notice - Pay. In respect of the two remaining claims he noted that he could not award these in the absence of specific claims sounding in money in money. He therefore rendered an award as follows:

“IT IS ORDERED THAT

Applicant’s claim for unpaid notice pay be and is hereby upheld

Respondent is ordered to pay Applicant Minesh Bhika, a total of USD$3 000,00 or ZWL equivalent at the prevailing Reserve Bank of Zimbabwe auction interbank rate. Payment to be made in full within 14 days of receipt of this determination”

The Respondent was aggrieved and noted an appeal under reference LC/H/274/24. On the date of hearing of the matter on 14th May, 2024, the Respondent having taken a preliminary point, that the Applicant had filed a fatally defective Notice of Response, the point was upheld by the court. The court handed down an order that appeal be granted on the basis that there was no valid response to the appeals. Through the order the determination by the Designated Agent, Tawanda Marisa was set aside and substituted with an order dismissing the claim as filed by the Applicant.

THE PRESENT APPLICATION

The Applicant filed the present application for condonation and rescission of the judgment handed down by this court on 14th of May, 2024. The application is opposed by the Respondent. Through the Opposing Affidavit of Hensini Ladhabous Shah, the Director in the Respondent, the Respondent avers that the Applicant was indeed employed by Respondent as a Personal Assistant for three months from January 2023 to April 2023. The Respondent however disputes that the Applicant was unfairly dismissed. Respondent contends instead that the termination was by mutual consent of the parties. In regards the ruling by the Designated Agent the Respondent contends that it successfully appealed in this court the ruling was overturned through an order of this court on the 14th of May, 2024.

The Respondent challenges the contention by the Applicant that he had failed to attach an Opposing Affidavit through an omission. Respondent contends that there was no such affidavit in existence at the time of filing of the Notice of Response. If it had been there such affidavit would have been attached to the present application. There is also no Supporting Affidavit from the Legal Practitioner who Applicant is alleging committed the error.

The Respondent further submits that the explanation given for the failure to comply with the Rules is unreasonable in the circumstances. The Respondent also contends the Applicant does not have prospects of success. The Designated Agent in his ruling had noted that it was common cause that the employment contract was terminated by mutual consent of

the parties. The Applicant not having cross-appealed against that point the point therefore remains extant and binding. It is therefore settled that there was a lawful termination.

The Respondent further avers that the Applicant was already paid the agreed termination package. He accepted the package, squandered it and then came back five months later alleging that he had not been paid enough. The Respondent contends that the Applicant just wants to gain from an employer that he barely worked for three months. On this basis Respondent prayer is that the composite application ought to be dismissed in its entirety with costs on a higher scale.

APPLICANT SUBMISSIONS

Mr Chizhande, for the Applicant submitted that he would abide with heads of argument filed save to emphasise a few points. He submitted that he did not agree with the approach taken by this court to treat the appeal under LC/H /274/24 as unopposed on the basis of Applicant’s failure to attach the Opposing Affidavit. His submission was that the court ought to have followed the approach in Bruce Ndoro and Anor v Conjugal Enterprises Private Limited and Anor HH814/22, where the court had granted the defaulting party an opportunity to regularise by removing the matter from the roll. He further submitted that the irregularity in this case could have been corrected by a removal from the roll to enable Applicant to file the Opposing Affidavit. He emphasised that this being a labour matter the court should not have inclined towards determining the matter on a technicality. The court should have instead strived to determine the matter on the merits.

Mr Chizhande also submitted that Applicant had great prospects of success in defending the appeal in the main matter reference LC/H/274/24. The evidence placed before the Designated Agent showed that the acknowledgment was based on arrear salaries up to April 2023. There was no acknowledgement of Notice-Pay. This is the claim that was placed and properly granted by the Designated Agent. The appeal by the Respondent therefore has no prospects of success. It was also clear the Respondent had never denied that it did not pay Notice-Pay.

Mr Chizhande prayed for the court to condone the defective Notice of Response filed in the main matter as the omission to file the Opposing Affidavit was an error. He contended that the Respondent would not suffer any prejudice if the application were to be granted. It would also be a grave injustice for the court to shut the door on the Applicant as he has not

been paid his dues. He thus prayed for condonation to be granted as well as rescission of the default judgement.

RESPONDENT’S SUBMISSIONS

Ms Khumalo, submitted that Respondent was abiding with the Heads of Argument as filed. Respondent however was placing emphasis on the explanation tendered for the failure to attach the Opposing Affidavit. She noted that the explanation that the Applicant made an error was patently untrue. This was clear as there was no mention in the Notice of Response filed of an attached Opposing Affidavit. She also stated that the Bruce Ndoro judgement sought to be relied upon by the Applicant was distinguishable from the facts in this case. The Applicant was also clearly placing blame on his Legal Practitioner for the error. He however had not attached a Supporting Affidavit from the Legal Practitioner concerned to corroborate the averments. She also noted that it is a trite position at a law that a litigant cannot escape the lack of diligence of his Legal Practitioner. Reference was made to S vs McNab 1986 (2) ZLR 280 (S)

Ms Khumalo also submitted that the explanation tendered cannot be considered as adequate in the absence of the Supporting Affidavit from the Legal Practitioners concerned. The court therefore could not condone the Applicant in the circumstances. The court was urged to follow the principle in Rio Zimbabwe v Nigel Dixon SC 21-2022 by dismissing the explanation as unreasonable. On the prospects of success in the main matter Ms Khumalo submitted that Respondent had good prospects in the appeal. This was clear on the basis that the Designated Agent had made a contradictory finding. Whilst he found on one hand that there had been an unfair termination of employment, he had proceeded to deny the only proof available of the mutual termination. Ms Khumalo also noted that whilst Applicant appeared to be poking holes in the determination of the Designated Agent, he had however not filed a cross- appeal. The determination however remained extant that there was mutual termination of contract. She also emphasised that it was not the duty of the court to seek to change the context of the termination agreement between the parties. The document signed between the parties clearly showed that it had been in full and final settlement of any claims that the Applicant had against the Respondent. Having signed the document Applicant was precluded from making any further claims against the Respondent. This position was clearly laid down in Shambayaonda vs Madhatter Mining P/L HH147/10.

Ms Khumalo further submitted that contrary to Applicant submission Respondent stands to suffer prejudice where the application to be granted. Respondent would necessarily incur further costs in defending itself in a matter that clearly has no prospects of success.

Lastly, she noted that there were defects in the draft order as sought by the Applicant. In paragraph (1) Applicant was seeking for the Notice of Response to be condoned. He was basically seeking the court condonation for a nullity. The court having clearly declared the Notice of Response as fatally defective the court could not now seek to condone a nullity. Ms Khumalo also noted that it was also very clear that in the main matter, Heads of Argument had been filed based on the Notice of Response. The matter was set down, hearing was conducted and concluded on the basis of the papers as filed. It would clearly prejudice the Respondent if this court were to then condone the defective Notice of Response. It was also not clear in terms of this proposed procedure what would happen to the proceedings already undertaken, how they would be treated by the court.

Mr Fanti, also appearing for Respondent, urged the court to dismiss the application as it was clearly based on falsehoods by the Applicant. He made reference to the authority in Paul Gary Friendship v Cargo Carriers Limited and Anor SC 1/13 where the court emphasised the fate of such application. Once the court finds that an explanation by a litigant is not candid or honest the application automatically falls away. On page 52 of the same judgement the Supreme Court had also cautioned litigants who seek to pull wool over the court’s eyes as was the case in this case. On this basis he prayed for the dismissal of the application.

Mr Chizhande, in reply urged the court to take the approach in Bessie Maheya v Independet Africa Church SC 58/07 which is for the court to exercise its discretion judiciously. He also emphasised that the agreement between the parties only covered salaries up to April 2023. The agreement did not cover the issue of Notice Pay so the award by the Designated Agent was correct. On the issue of an incompetent draft order he emphasised that it was only a draft order this court however has jurisdiction to amend draft orders upon an application being made. On the issue of prejudice, he submitted that Respondent would not suffer any prejudice where the application to be granted. He urged the court to take the approach taken by the High Court in the Bruce Gardener Case. On this basis he prayed for the composite application to be granted.

EVALUATION

The applicant submitted that the court needs to be satisfied that the applicant has met the requirements of an application of this nature. In support of his submission, he cited the case of Bessie Maheya vs Independent Africa Church SC 58/07, Honourable Malaba CJ stated the requirements as follows,

"In considering applications for condonation of non-compliance with its rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are, degree of non-compliance; the explanation for the delay; the prospects of success on appeal; the importance of the case; the respondent’s interests in the finality of the judgment; the convenience to the court and the avoidance of unnecessary delays to the administration of justice.”

The court is required to consider the requirements for an application for condonation cumulatively and weigh them against each other. The application for condonation is not decided on one exclusive factor.

The Applicant has tendered an explanation for the failure to attach Opposing Affidavit to their Notice of Response. He places blame on his Legal Practitioner. The Applicant however has not attached in this application a Supporting Affidavit from the Legal Practitioner concerned. The Applicant‘s explanation in the absence of that supporting affidavit cannot be accepted. As contended by the Respondent it is after all a trite position at law that where a lawyer is blamed for failure to abide with the rules of court an affidavit by the lawyer concerned taking responsibility has to be filed in support of the application for condonation. See Lunat vs Patel and another HH/142/2021. The explanation tendered in this case is weak if not non- existent.

It is also the position that where the explanation is weak an applicant must have a very strong case on appeal for condonation to be granted by the court. The applicant has submitted that he has good prospects of success in opposing the appeal filed by the respondent. He further averred that the acknowledgement being relied upon by the respondent in its appeal clearly

states in unambiguous terms that it was settlement of salary up to April 2023. The claim before the Designated Agent was a claim for payment of notice pay which was an equivalent of 3 (three) months' salary on the basis that applicant was on a contract without fixed duration with the respondent. The applicant was not claiming arrear salary. In fact, this claim was abandoned and it is on record and the Designated Agent as well as the respondent took note of that fact. It is a clear misdirection on the part of the respondent as well as misleading to try and bring this court to make a determination on an issue that was not before the Designated Agent.

The applicant abandoned his claim for arrear salary and pursued the claim for payment of his notice pay in terms of section 12 (4) of the Labour Act. The respondent did not deny that it had not paid applicant his notice pay but sought to argue that the payment made towards the arrear salary for the month of April was full and final payment for the unlawful termination which is incorrect. Moreover, the factual finding by the Designated Agent that there was mutual termination of employment was wrong because no evidence was led to that effect and he clearly acknowledged it in his ruling. In any event, his wrong finding on this aspect is neither here nor there because , in the final analysis he made a determination on the actual issue that had been referred to him for determination which was a claim for notice pay.

The respondent contended that the applicant must speak positively to the prospects of success in the main matter. In support of his submission he, cited Essop v S 2016 ZASCA 114, where guidance was provided on the test to determine prospects. In the case the court remarked as follows:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed therefore, the applicant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorized as hopeless. There must in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

In the matter of Sakadza v Charumbira HH 625/22, the court stated that,

“In assessing whether condonation is appropriate in this instance regarding prospects of success, it is also important to examine what the parties pleaded in the divorce case under the cross-referenced case….., and what was granted in the default judgment and what the applicant now seeks in terms condonation in order to apply for rescission.”

In their response, the respondent contended that the applicant’s prospects of success are very low. This is due to the fact that the Designated Agent made a finding that the applicant's contract of employment was mutually terminated. The determination to the effect that there was indeed a mutual termination remains extant, it has not been cross appealed by the applicant. Therefore, it is not available for the applicant to state that aspect of the determination was wrong yet it has not taken any steps to challenge it officially.

It was further averred that, in terms of the mutual termination agreement, the applicant was paid what was due to him in terms of the said agreement and proceeded to squander it. The applicant signed the mutual termination agreement which clearly states that the payment is made in full and final settlement. The applicant cannot then turn around and claim more money after signing the agreement and remaining completely docile for five months. If it is that indeed the applicant was not in agreement with the respondent, why did it take him five months to seek recourse.

This submission was backed by authority cited in Lawrence Shumbayaonda v Madhatter Mining (Private) Limited HH 147-2010 where the court pronounced itself regarding litigants who make agreements with their employers with one hand and then proceed to claim more money with the other. In the case, the court held as follows:

"If he was entitled to cash-in-lieu on three months' notice, why would he sign an acknowledgement of debt of a lesser amount? In my view this shows that the parties agreed to terminate mutually their relationship. Plaintiff waived his rights and agreed to leave the employ of the defendant on the terms set out in their discussion. He is not entitled at this stage to claim that which he renounced and expressly signed away."

In Gauntlet Security Services v Hlabangani SC 15/04, the Supreme Court expressed its displeasure through shunning claims by those who agree to termination, squander their terminal benefits and then come back later to renege from the agreed termination. The Court had this to say,

“There was no unilateral act of repudiation of the contract of employment by Gauntlet Security. Hlabangani was in fact saying that while he represented to Gauntlet Security by conduct in signing the documentnt that he was agreeable to a mutual termination of the contract of employment and led it to believe that indeed he intended what he had written on the document he in truth did not intend that his signature should have the effect it had. If that is the case, he is entirely to blame for having misled Gauntlet Security into believing what he intended it to believe that is to say that the contract of employment was being terminated by mutual agreement.”

The applicant submitted that while it is admitted that the rule that was not complied with is couched in peremptory terms, it is respectfully submitted that the defect could be remedied and therefore was not fatal. Wisdom is drawn from the remarks by the Honourable Justice Deme in the case of Bruce Ndoro & Anor v Conjugal Enterprises (Pvt) Ltd & Anor HH814/22 wherein it was held as follows,

"I disagree with this approach as the defect raised is not a fatal one. Rather it is a remediable defect. For that reason, it is appropriate to ensure that the respondents are given time to cure the defect concerned by removing the matter from the roll. This is in harmony with the need to uphold the right to a fair trial established in terms of section 69 of the Constitution. The right to fair trial is non-derogable according to section 86

(3) of the Constitution.”

In line with the reasoning expressed in the judgment above, it is the court’s view in hindsight that the defective notice of response was not fatal as it could be remedied. Therefore, the degree of non-compliance is one that can be condoned by this Honourable Court as it is not fatal. It was further expressed in the Ndoro case (supra) that,

"Deeming the present application as an unopposed case will not bring finality to litigation. The applicants will only be entitled to a default judgment under the circumstances. The Respondents may then seek to set aside the default judgment which will prolong the litigation between the parties."

Therefore, the degree of non-compliance in this case is within the limit that this court can condone as the defect can be cured.

In light of the submissions and legal principles considered, the court is satisfied that the applicant has provided a reasonable and bona fide explanation for the procedural defect in the notice of response. The defect, being remediable and not fatal, should not bar the applicant from having the matter heard on its merits. Furthermore, the applicant has demonstrated arguable prospects of success in defending the appeal and has shown that the interests of justice would be better served by allowing the parties to fully ventilate the substantive issues in dispute.

The importance of upholding the right to a fair hearing, as enshrined in section 69 of the Constitution, weighs heavily in favour of granting condonation. In the circumstances, it would be unjust to allow a technicality to prevent the matter from being resolved on its merits. Accordingly, condonation and rescission of default judgment is hereby granted, and the applicant is permitted to rectify the defect in the notice of response. The appeal shall proceed to be heard and determined on the merits.