Takesure Mupumha v DZimbabwe Bus Service (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/317/24
HARARE, 15 JULY 2024
CASE NO LC/H/526/24
01 AUGUST 2024
---------


IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/317/24

HARARE, 15 JULY 2024	CASE NO LC/H/526/24 01 AUGUST 2024

TAKESURE MUPUMHA	APPLICANT

DZIMBABWE BUS SERVICE (PRIVATE)	RESPONDENT LIMITED

Before the Honourable G. Musariri Judge:

For Applicant	-Mr L. Ndoro, Attorney

For Respondent	- Mr M Chemhere, Manager

MUSARIRI, J:

Applicant applied to this Court for rescission of judgement in terms of section 92C of the Labour Act Chapter 28:01 as read with Rule of the Labour Court Rules, 2017.

Respondent opposed the application.

The quintessence of applicant’s case appears in his founding affidavit thus,

“9. The notice of set down could have been duly served to me through the IECMS platform, but I have not been able to see it because I am currently using cellphone that is not compatible with the use of social media accounts neither does it access emails. I had put trust and relied with my representative whom, I thought would advise accordingly in the event that there was communication regarding my case as it always been a norm in my experience of working with them.

10. However, this time, I was advised that my representative was unable to attend the court hearing because they were having system challenges despite the manner of service being appropriate in terms of the rules. In an y event my representative was having challenges to log in to the system and as such was not aware of notice of set down which was served through the system on 27 March 2024. I attach hereto marked Annexture A, a self-explanatory affidavit deposed by Mr Isawo Jona Dangiri, the union official seized with my matter in explaining the glitches encountered by the union in accessing court processes filed in the system.

I am advised that my representative had engaged an IT expert at the union to attend to the challenges presented by the system but before they could attend to the problem the matter was heard on 6 May 2024 in default of Applicant resultantly the court dismissed the matter and issued a default order.

I submit that my failure to attend the hearing of the review matter in case No

LCH 82/24 was not intentional on the basis of the explanation given above. I therefore

implore this court grant rescission of the court’s order.”

Respondent countered through its opposing affidavit as follows,

“Third and even more importantly, the challenges of logging into the IECMS system certainly do not prevent one from logging into their gmail or email account for three months. It has been suggested by applicant that his gmail account could not be accessed by the applicant’s representative for nearly two months. If the emails could not be accessed again, then certainly this union has no business representing any interests and the register must intervene. Fourth and quite refreshingly, the applicant was able to file his own heads of argument to its application for review through the very same system he now disparages. The system works, this is why applicants’ heads of argument were duly filed.”

As regards the merits applicant deposed as follows;

“13. The facts of the matter favours that the Respondent ultra-vires the code of conduct SI 42 Of 2022 when it upheld a default determination which lacked principles of natural justice as enunciated in terms of Clause 8, 8.2, 8.3, and 8.4 of the code of conduct.  The aforementioned clauses are prerequisite when holding a disciplinary hearing but Respondent failed to take consider these when it arrived at its determination that upheld the Disciplinary officer’s decision.

It is trite law that where legislation lays down specific procedures, such procedures are not optimal but absolute and final.

14 …

15. Further, there is allegation of bias raised by the applicant on its grounds of review, that the Disciplinary Officer acted as both adjudicator and the Respondent thereby violating Section

A.9 clause A.9.2 of SI 42 OF 2022, when it raised preliminary points presumably as Respondent, presented, argued then gave decision regarding that point and eventually pass determination terminating the Applicant employment of which same was upheld by Respondent.”

Respondent countered in the opposing affidavit thus,

“6 Ad Para 13

This is denied, all laid down procedures were followed, applicant does not lay his cause of complaint clearly save by a congregation of sections of the code of conduct the manner and species of applicant’s complaint here is inchoative and left for imagination.

9 Ad Para 15

This is disputed …

Applicant’s representative failed to properly identify himself at the tribunal hearing after he had

written that he was merely from a trade union in the attendants register it then turned out he

was not licensed when he stated that he was an affiliate of the Zimbabwe Federation of trade unions, the secretary of zftu K Shamuyarira was called and denied any affiliation with the applicant’s representatives union. He walked out of the hearing and the applicant followed suit, abandoning proceedings.”

Applicant’s explanation for his default is poor if not unreasonable. If he or his representative could not access the IECMS platform they should have checked the position physically with the Court’s registry on a regular basis. The notification of hearing was serve d on 27 March 2024. The matter was heard on 6 May 2024. That means for the whole of March 2024 they did not check the status of the case. No satisfactory explanation was given for such conduct. As regards the merits, applicant again comes short. He does not spell out his case on the merits other than mere references to sections of the c ode of conduct. The code does not by itself make his case. He had to lay the factual and/or legal basis of his case in the founding affidavit. An application stands or falls on the merits of the founding affidavit. The law on rescission of judgement appears in precedents like

Chihwayi v Atish 2007(2) ZLR(S)

Sandura JA quoted at P934-5 H-A thus;

“But it is clear that in principle and in the long-standing practice of our courts two essential

elements of “sufficient cause” for rescission of a judgment by default are;

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

that on the merits such party has a bona fide defence which, prima facie, carries some

prospect of success.”

In casu applicant failed to satisfy either of the 2 factors set out in the Chihwayi case. Therefore, his application ought to be dismissed as devoid of merit.

Wherefore it is ordered that

The application for rescission of judgement be and is hereby dismissed, and

Each party shall bear its own costs.

J-U-D-G-E