Sebteju Investmenta (Private) Limited v Wellington Chikosha

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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 8TH
JUDGMENT NO. LC/H/199/25
CASE NO. LC/H/146/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 8TH MAY 2025

AND

In the matter between

JUDGMENT NO. LC/H/199/25

CASE NO. LC/H/146/25

SEBTEJU IN VESTMENTA (PRIVATE) LIMITED	APPLICANT

And

WELLINGTON CHIKOSHA	RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE , JUDGE.

FOR THE APPLICANT : MS A. BANGA FOR THE RESPONDENT: D. CHIWARA

MAKAMURE J:

This is an application for rescission of a judgment entered against the applicant. An order was made dismissing the application. The following are the reasons for the dismissal.

At the commencement of the hearing a preliminary issue was raised on behalf of the respondent regarding timeous filing of heads of argument on behalf of the applicant. The complaint was that they were filed a day out of time. Ms Banga who appeared on behalf of the applicant produced proof that they were filed after close of business on the last day of the time limit. This is why they were only stamped the following day. Mr Chiwara who appeared for the respondent thereafter did not persist with the preliminary issue. Thereafter the main application was heard.

The facts of this matter which are common cause are that the parties agreed on a date to appear in Court. On the appointed date the legal practitioner for the applicant did not appear. This resulted in a default judgment being entered against the applicant. This is now an application to rescind that default judgment.

In order for an application of this nature to succeed the applicant must satisfy the following requirements:

A reasonable application for the default must be given.

The explanation must be bona fide and not made with the intention of merely delaying the other party’s claim.

There must be a bona fide defence to the claim.

Dunmuc Press (Pvt) Ltd v Gulliver Consolidated Limited t/a Industrial Calvanising and Fabricating HH29/04;Grant v Plumbers (Pty) Ltd 1949(2) SA 470.

In the present matter there are two affidavits in support of the absence of the legal practitioner.The first one is from the Murad Musemao Mahommed (Mahommed). Mahommed stated that his legal practitioner of record failed to appear because she had another matter in the Magistrates Court. She therefore assigned the duty to appear before this Court to a colleague. The colleague then realized that she too had other matters and could not attend this Court.The next affidavit was deposed to by Ms Patricia Mtetwa , a registered legal practitioner. She confirmed what Mahommed stated, that is she was supposed to appear on behalf of Ms Magoge who was appearing before a Magistrate but unfortunately she realized that she too had another matter which clashed with the present matter so she failed to appear before this Court on behalf of Ms Magoge. So by the time Ms Magoge arrived at this Court a default judgment had already been entered.

There is no affidavit from Ms Magoge herself stating why she failed to attend Court. It is indeed important for the two deponents to support what caused Ms Magoge not to attend Court.In the absence of an affidavit from Ms Magoge herself stating exactly why she failed to attend Court the two supporting affidavits are not supporting anything. They cannot stand on their own without Ms Magoge’s input in the form of an affidavit as well.

The respondent is opposed to the application. In his opposing affidavit , Wellington Chikosha (Chikosha),the respondent stated , among other things, that the date of hearing was set by consent of both parties after Ms Magoge suggested that date. Chikosha questioned why on the date in question Ms Magoge did not call the Judge’s Clerk to advise him of her predicament. She also did not call the respondent’s representative to advise him of her position. The respondent is of the view that Ms Magoge did not show a good and sufficient cause warranting the Court to grant the indulgence being sought.

In argument Ms Banga advised the Court that she would abide by the papers filed of record.In the heads of argument filed on behalf of the applicant it was submitted that the absence was due to the fact that Ms Magoge had two matters in the Civil Magistrates Court on the same day. There is mention of a new legal practitioner who was joining Ms Magoge’s law firm in February 2025 but that does not explain why Ms Magoge herself did not file an affidavit explaining why she failed to attend Court on a date which she had suggested herself.

On the other hand, Mr Chiwara who represented the respondent, in addition to abiding by the heads of argument filed on behalf of the respondent, submitted that the explanation tendered on behalf of the applicant is not plausible. He argued further that there was no evidence submitted by Ms Magoge in support of the assertion that she was seized with other matters in other courts. It was also argued that there was also no evidence in support of the assertion that Ms Mtetwa who was supposed to appear on behalf of Ms Magoge on the date in question, had other matters which clashed with the present matter. Mr Chiwara argued that the manner in which the legal practitioner conducted herself shows that she did not take the Court seriously and therefore the application must be dismissed with costs on the higher scale.

Some of the cases Mr Chiwara referred to include Chihwayi Enterprises (Private) Limited t/a Paint & Tools Hardware v Atish Investments (Private) Limited SC23/07; Old Mutual Property Investments (Pvt) Ltd v Mogola Enterprises (Pvt) Ltd HH240/17;Dominic Mular v Brenda Bracs SC 51/86.

The failure by Ms Magoge to file an affidavit explaining her absence is a grave omission which cannot be condoned. Only she could explain why she did not appear and any other evidence or affidavits would have been in support of her position. She is the one who suggested the date of hearing and only she who could say why she did not appear. That failure is not taken lightly. As an officer of this Court Ms Magoge had an obligation to assist the Court and take the Court in her confidence. Unfortunately, she did neither. It therefore appears as if she is not taking the Court seriously. That cannot be condoned.

In Zimbank v Masendeke 1995(2) ZLR 400 it was held that default occurs when a party with full knowledge of the set down of a matter and the risks attendant upon default, freely takes a decision to refrain from appearing.

In Dunmuc Press (Private) Limited (supra) it was stated that if it appeared that the default was willful on the part of the litigant seeking rescission the court should not come to the assistance of such party.

In Dominic Mular v Brenda Bracs (supra) the Court stated that:

"Once the explanation for the default is found to be unacceptable as in this case, a disdain of the rules is the inevitable inference. In other words, the default is classified as wilful in the sense of a deliberate acquiescence thereby barring the indulgence of rescission".

In the present matter it would appear that Ms Magoge with full knowledge of the risks attendant upon failure to appear on the date of hearing, deliberately failed to attend and this is apparent from her failure to file an affidavit explaining the default.

This is a case where as submitted on behalf of the respondent the Court should have visited the applicant with costs on the punitive scale. However, an order has already been made and the Court is bound by that order.

It was in view of the foregoing that the application for rescission of the judgment granted by this Court on 21st January 2025 was dismissed with no order as to costs.

MAGOGE LAW, APPLICANT’S LEGAL PRACTITIONERS.