Tyre Treads (PVT) LTD v Shephard Jani

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/784/14
HELD AT HARARE 5TH NOVEMBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/784/14

HELD AT HARARE 5TH NOVEMBER 2014		CASE NO LC/H/555/13

& 21ST NOVEMBER 2014

In the matter between:-

TYRE TREADS (PVT) LTD				Appellant

And

SHEPHARD JANI					Respondent

Before The Honourable R.F. Manyangadze, Judge

For Appellant			Mr A.K. Maguchu (Legal Practitioner)

Respondent			In person

MANYANGADZE, J:

The respondent was charged with misconduct in terms of what is styled, in the Charge Sheet, as the Marathon Group of Companies Code of Conduct.  He is alleged to have contravened section 12 thereof, receiving or attempting to receive a bribe.

A disciplinary hearing was convened at the appellant’s workplace.  It was concluded on 8 June 2012.  The respondent was advised he would be notified of the outcome of the disciplinary hearing in due course.  No such outcome was communicated to him.  This prompted him, on 9 July 2012, to refer the matter to a Labour Officer in terms of section 101(6) of the Labour Act

[Chapter 28:01]

The matter was subsequently referred to compulsory arbitration. Honourable J Likwesa issued an arbitral award on 26 June 2013, in terms of which she ordered the respondent’s reinstatement or payment of damages in lieu of reinstatement.

Aggrieved by this determination, the appellant lodged an appeal with this Court.

The grounds of appeal are stated as follows;

“1.	The Arbitrator erred at law in hearing a matter in respect of which he/she had no jurisdiction.

Having heard appellant’s argument regarding the Arbitrator’s jurisdiction, the Arbitrator subsequently erred at law in holding that he/she had jurisdiction to hear the matter without considering the basis of Appellant’s argument.

The Arbitrator erred grossly on the facts in proceeding to hear the matter without considering the request for a postponement that had been made in writing.

The Arbitrator erred grossly both on the facts and a law in determining the merits of the matter on the basis of written submissions and letters yet without hearing any evidence.

The Arbitrator erred grossly on the facts in finding that respondent had not been informed of the termination of his contract of employment.”

It appears the gravamen of the appeal is that the arbitrator had

no jurisdiction to hear the matter.  The appellant contented that the dispute was supposed to be referred to the National Employment Council for the Motor Industry (NEC) for determination by a Designated Agent.  The Labour Officer to whom it was referred for conciliation, and consequently the arbitrator, had no jurisdiction to entertain the matter.

An examination of the arbitral award shows that the arbitration hearing was conducted in default of the appellant’s appearance.  All the appellant did was to write a letter dated 11 April 2013, advising the arbitrator that it fell under the National Employment Council for the Motor Industry.  It further advised the arbitrator that it was not going to attend the arbitral proceedings, until its internal procedures under the National Employment Council had been exhausted.

The arbitrator went ahead with the hearing and awarded in favour of the respondent, as already indicated.

In his Notice of Response, the respondent raised inter alia, the issue that the appellant is appealing against a default judgment, after it refused to avail itself and present its defence at the arbitration hearing proceedings.

This issue has to be looked into first, as it determines whether the rest of the issues should be looked into.  If upheld, it has the effect of disposing of the matter.

The appellant averred that the arbitrator, notwithstanding the appellant’s default, proceeded to determine the matter on the merits, and gave a reasoned judgment.  The appellant contended that that judgment is appealable.  The appellant argued that the arbitrator gave a reasoned award.  It means she was functus officio.  She would not have been functus officio if she had issued a purely default judgment.

The question as to what constitutes a default judgment, and whether or not it is appealable, was considered by the Supreme Court in the case of Zvinavashe v Ndlovu SC-40 – 06.   GWAUNZA JA stated:

“The defining feature or essence of a judgment granted after a party fails to appear is the “default” of the absent party, that is his failure to do what he ought to have done.  In casu, what the appellant failed to do was to appear and prosecute the application.  Hence a judgment by default has been defined as one obtained by “non resistance” (per JARVIS CJ in Prev v Square 10 CB 915, cited in Strouds Judicial Dictionary 5 ed at p 659).

The consideration by the Judge a quo of the merits of the case, and the

giving of his reasons for judgment, therefore had no effect on the status of the judgment given, which remained that of a default judgment…

Be that as it may, the decision by the court a quo to dismiss the appellant’s application, effectively for want of prosecution, was correct.  As has already been explained, that decision remained a default judgment whose setting aside could only follow a successful application for its rescission.

For the avoidance of doubt, it is declared that the giving of reasons for the default judgment in question, by the court a quo, was unnecessary and of no force or effect.  It does not convert. the default judgment into a judgment on the merits.” (Underlining added)

The position was made very clear in the cited case, that a default

judgment is not appealable.   Even if reasons are given for the judgment, it remains a default judgment.  The remedy is that of an application for rescission of judgment.  In view of this, the appeal is not properly before the court, as it is emanating from a default judgment.

In the result, it is ordered that the appeal be and is hereby dismissed with costs as it is not properly before the court.

Dube, Manikai & Hwacha, appellant’s legal practitioners