Southlea Park Primary School v Muchazoona Mudzora & Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/15/24
HARARE, 30 OCTOBER, 2023
CASE NO. LC/H/156/23
AND 29 JANUARY 2023
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 30 OCTOBER, 2023

AND 29 JANUARY 2023

In the matter between

SOUTHLEA PARK PRIMARY SCHOOL

Versus

MUCHAZOONA MUDZORA & OTHERS

Before The Honorable L. Hove, Judge:

For Applicant	: Mr.C.T Manyani For Respondents : A.Ndota

HOVE J:

JUDGMENT NO. LC/H/15/24

CASE NO. LC/H/156/23

Applicant

Respondent

The appellant in casu is appealing against a decision made in terms of section 63 of the Labour Act [Chapter 28:01] (the Act).

The order was made by the designated agent in default. The Background

The matter was referred to the designated agent to deal with claims raised by the appellant’s employees. The employees were employed in various capacities. The employees alleged that they had their contracts of employment unfairly terminated by the appellant, further, the employees alleged that they were being underpaid.

The designated agent wrote to the appellant notifying it to attend for an oral hearing on 14 November 2021 and parties were directed to prepare detailed written heads of arguments. This was on 20 October 2022. On 14 November 2022 the appellant did not attend, and the designated wrote to the parties again in the following manner.

“the above matter refers; you are hereby notified to submit your written response to the attached claims by the claimants within (10) ten working days from the date of receiving this letter

The tribunal will be dealing with the matter in terms of section 63 as read with statutory Instrument 77 of 2021 and a determination will be issued based on your submissions. The oral hearing will be set down if there are issues to be ironed out in the written submissions and parties will be notified accordingly. Failure to provide the response will be assumed as a waiver to your rights to be heard in terms of the audi alteram pattern rule.

Your cooperation is appreciated”

The appellant did respond requesting for more time to consult. It requested for 10 working days from 22 November 2022. Thereafter nothing was heard from the appellant until about 30 January when the designated agent prepared and delivered its determination.

The designated agent viewed the failure to file a response by the appellant as a waiver of its right to be heard. The designated agent proceeded to prepare and issue its determination. The designated agent clearly stated that it was issuing a default determination.

The appellant was aggrieved and proceeded to file an appeal to this court. The grounds of appeal are three (3) and these are they:

The designated agent grossly erred at law In ordering appellant to pay the respondents in circumstances where under payment of wages was not proven.

The designate agent grossly erred at law by ordering the appellant to pay the respondents amounts that had prescribed at law.

The designated agent grossly erred at law by ordering appellant to pay 1st to 7th respondents the purported under payments of wages in USD currency in contravention of the fiscal laws.

All the issues raised in the grounds of appeal had not been raised by the appellant. The appellant defaulted and a default order was entered against it. The appellant ought to have sought that the default order be rescinded first before seeking to appeal against a default order. This is not lawful.

The case of Zvinavashe v Ndlovu 2006 (2) ZLR 372 the court held as follows;

‘Counsel for respondent argued correctly that a default judgment can only be set aside by a successful application for rescission of judgment under the rules of Court’ this is the only way to purge the default, the court added, otherwise the default remains unpurged. In OK Zimbabwean limited v. Tazvivinga SC 134/21 the court held that;

‘according to our law, a party cannot appeal or seek review against a default Judgment. ‘

The Supreme Court has stated that the proper procedure is to seek a default judgement’s rescission before one can raise all the issues it has with the dispute. Before seeking its rescission, one cannot relate to the default order or judgement in any other way. One cannot appeal against a default order neither can one seek a review against it.

Order:

The appeal be and is hereby struck off the roll with costs.