Quickhail Transport Services Zimbabwe (Private) Limited v Paul Brown

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/412/25
HARARE, 20 OCTOBER, 2025
And 24 OCTOBER 2025
CASE NO. LC/H/690/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/412/25 HARARE, 20 OCTOBER, 2025

And 24 OCTOBER 2025	CASE NO.	LC/H/690/25

QUICKHAIL TRANSPORT SERVICES	APPLICANT ZIMBABWE (PRIVATE) LIMITED

PAUL BROWN	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- T. Runganga, Attorney

For Respondent	- O. Makonya, Unionist

MUSARIRI, J:

Applicant applied for rescission of this Court’s judgment issued on 16 July 2025. The application is provided for by Section 92 C of the Labour Act Chapter 28:01 hereafter called the Act. Respondent opposed the application.

Applicant’s case

The material parts of applicant’s founding affidavit stated that,

“5.  This is an application for the setting aside of the default judgment granted against Applicants by Honourable Justice Musariri, sitting at Harare on the 16th of July 2024 in case number LC/H/405/25.

What transpired is that Applicant forwarded heads of argument prepared by the undersigned Legal Practitioner to Mr K. Musoni who also happened to be the Disciplinary Officer in the hearing against which the Respondent made the application for review.

In advertently, Mr K. Musoni singed (sic) the heads of argument and forwarded them back to the Applicants who also forwarded to their legal practitioner. The legal practitioners erroneously uploaded the signed Heads of Argument which rendered them irregular and they correctly elected to have them expunged from the record.

The matter proceed to be heard as unopposed and judgment was granted in default. In that regard, I urge the court to condone the now (sic) appearance which was technical but for all intents and purposes Applicant desired that the Applicant be heard on the merits. May the Court allow Applicant to properly file its heads of argument before it.

On the second ground which is the correction of patent error, the court erroneously omitted the option for the hearing to be heard de novo and proceeded to order damages in lieu of reinstatement which is an issue that was not before it.

16(c)  Prospects of success on the merits;

Applicants have good prospects of success on the main matter. Respondents failed to prove that the Disciplinary Officer did not have jurisdiction, which jurisdiction I am advised, was clearly established in the Collective Bargaining Agreement for the Transport Operating Industry Statutory Instrument 42/2022.

The hearing was properly conducted and due process followed hence the Applicants have good prospects of succeeding and having the main application dismissed. In addition, the Respondent filed the Application for review outside the timelines prescribed by the court.”

Applicant then prayed for rescission of judgment.

Respondent’s case

Respondent’s opposing affidavit countered thus,

“20.  Agreed however the requirements are satisfied (sic) in the present application. There has been no reasonable explanation for the default by applicant and the Court cannot rescind an order made with the consent of the parties.

Litigants ought to be candid with the Court and trying to mislead the Court should disqualify the litigant. By the 18th July of 2025 applicant was aware of the Court decision and even attempted to institute disciplinary proceedings on respondent.

The reasons tendered are not satisfactory and even if the court were to grant the application that would not cure the defect as there will still be no papers before the Court. The remedy being sought here is incompetent.

There are no prospects of success to talk about. The application is fatally defective and is typically example of sour grapes and should be treated with the contempt it deserves. The circumstances of the case clearly shows that applicant has failed to prove that he is entitled to the remedy being sought.”

Respondent prayed that the application be dismissed.

Analysis

In its analysis the court is guided by the dicta in the case of

Chihwayi v Atish 2002 (2) ZLR 89

Saundura JA quoted thus at 98H-95A

“But it is clear in principle and in long standing practice of our court two essential elements of ‘sufficient cause’ for rescission of judgment by default.

(i)	that the party seeking relief must present a reasonable and acceptable explanation for his default; and

(ii)

(iii)	that on the merits such party has a bona fide defence which prima facie, carries some prospect of success.”

Explanation for Default

The default in casu arose from the fact that applicant was barred for failure to file valid heads of argument. As a result a default judgment was entered against it. The heads filed by applicant were defective because they were not signed by applicant’s legal practitioners. Instead they were signed by the Designated Officer who presided over the impugned disciplinary proceedings. The key question is why were applicant’s heads of argument signed by the Designated Officer?? Applicant’s papers say the heads were forwarded to the Designated Officer in error upon receipt from their attorneys. It is common cause that the Designated Officer is an attorney who was engaged by applicant to act as the Designated Officer in casu instead of an in- house disciplinary committee. If it was a mistake then why did the attorney sign the heads on behalf applicant’s attorney No explanation was given. Neither was an affidavit tendered by the Designated Officer to explain his confusing conduct. To that extent the explanation for default is incomplete and thus unsatisfactory.

Prospects of success on the merits;

From both the papers on record and oral arguments it is clear that the big bone of contention was the jurisdiction and neutrality of the Designated Officer. Yet the applicant’s founding affidavit

simply stated ‘which jurisdiction I am advised, was clearly established in the Collective Bargaining Agreement for the Transport Operating Industry Statutory Instrument 142/2022. The hearing was properly conducted…’ No attempt was made to unpack the relevant provisions of the CBA and show how they gave the outsourced Designated Officer authority to conduct the hearing. The merits were thus dealt in curt and conclusory terms. However, it is not for the Court to tease out a party’s case from pleadings that fail to fully disclose the case. Such failure inevitably leads to the conclusion that the party lacks reasonable prospects in the main matter. The Court is fortified in this conclusion by the case of

Lunat v Patel SC 142/21

Per Mathonsi JA at p7

“The passages in the founding affidavit I have reproduced above do not even begin to show prospects of success. It is not enough for the applicant to refer to the grounds of appeal and expect the court to extrapolate what the prospects of success are. The founding affidavit presents the applicant with an opportunity to set out his case, I cannot piece it together for him …. a bare and unsubstantiated averment that prospects of success exist is not sufficient.”

Conclusion

The explanation for default is inadequate and thus unreasonable; and

The prospects of success on the merits were not demonstrated.

Wherefore it is ordered that,

The application for rescission of judgment be and is hereby dismissed; and

Applicant shall pay respondent’s costs of suit.

G. MUSARIRI