Total Zimbabwe (Private) Limited V Cecilia ZIKO

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/128/21
HELD AT HARARE ON 14TH JULY, 2021
CASE NO. LC/H/131/21
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/128/21

HELD AT HARARE ON 14TH JULY, 2021               CASE NO. LC/H/131/21

AND 27TH AUGUST, 2021

In the matter between:-

TOTAL ZIMBABWE (PRIVATE) LIMITED				Applicant

Vs

CECILIA ZIKO								Respondent

Before the Honourable Makamure, J.

For the Applicant		:	Mr. T. Chiturumani (Legal Practitioner)

For the Respondent 	:	Mr. S. Kufandada (Legal Practitioner)

MAKAMURE J.

This is an application for rescission of a default judgment granted by this applicant on 26 May, 2021.  It is opposed.

The requirements for a default judgment to be rescinded are as follows:

Whether or not the applicant was in wilful default.

Whether or not the application is bona fide;

Whether there are prospects of success should the matter be heard on the merits (SONGORE V OLIVINE INDUSTRIES (PRIVATE) LIMITED 1998 (2) ZLR 210 (S))

In DEWERAS FARM (PRIVATE) LIMITED AND OTHERS VS ZIMBABK CORPORATION 1997 (2) ZLR 47 (H) it was held that-

“the traditional perception of wilful default occurs when a party, with full knowledge of the service or set down of the matter and risks attendant on default, freely takes a decision to refrain from attending.”

The applicant’s legal practitioner of record deposed to an affidavit.  That affidavit is to the effect that on the date of hearing, his motor vehicle broke down while he was on his way to court.  His efforts to contact the respondent’s legal practitioner by mobile telephone were unsuccessful.  After the breakdown he contacted a mechanic.  The mechanic eventually had the motor vehicle towed to a garage called BASC Motors.  The mechanic, one Tinashe Chiyangwa deposed to an affidavit in support of this.

The respondent was aggrieved that the applicant’s legal practitioner did to not produce proof, that though he was in this unfortunate predicament, and that after sorting out the vehicle problem, he in fact arrived at court, no matter what the time was.  For this reason, Mr. Kufandada who appeared for the respondent submitted that the explanation was not reasonable.  The application was therefore not in good faith, so Mr. Kufandada argued.

I will now consider whether or not the requirements have been met.  The first requirement deals with the question of wilfulness on the part of the applicant.  The applicant explained that the legal practitioner’s motor vehicle had a break down.  That caused failure to attend court leading to the default judgment.  It is the breakdown of the motor vehicle that led to the applicant’s legal practitioner’s absence from court.  This in my view, does not amount to taking a conscious decision not to attend court. The application was then lodged almost immediately after finding out that a default judgment had been entered against them.  This was also done before the official court order was issued.  This again goes to show that the default was not wilful.  The application was not delayed.  It was made promptly.  Consideration being had to the explanation, the application appears to be bona fide.  This means that the second requirement for the application to succeed has been met.

The third requirement is whether or not there are prospects of success should the matter be heard on the merits.

The applicant in his heads of argument addresses the grounds for review in the main matter, which which it argued have no prospects of success.  In other words, the point being made on behalf of the applicant is that on the merits there are prospects of success in that the applicant will successfully defend the application for review.  On the other hand, the respondent persists that the applicant (respondent is the main matter) erred.  This also means that the view is that the main application will succeed.  Clearly this is not a matter which can be ignored.  Both parties have raised pertinent issues which can only be resolved on a full hearing.

Having stated the above, it is my view that the requirements for rescinding a judgment have been met.

In the result the application succeeds.

Accordingly it is ordered that:

The default judgment of this Court, LC/ORD/222/2021 granted on 26 May, 2021 be and is hereby rescinded.

The matter be set down for hearing on the merits on the nearest practicable date.

Costs be costs in the cause.

CHITURUMANI ZVAVANODA LAW CHAMBERS – Applicant’s Legal Practitioners

CHARAMBA & PARTNERS – Respondent’s Legal Practitioners