Zimbabwe National Network for People Living with HIV v Muchanyara Mukamuri & Letwin Sigauke N.O.

### Preamble
JUDGMENT NO.
IN THE LABOUR COURT OF ZIMBABWE LC/H/214/24
HELD AT HARARE 9 MAY
2024
CASE NO.
2024
LC/H/124/24
AND 13 MAY 2024
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 9 MAY
2024

AND 13 MAY 2024

IN THE MATTER
BETWEEN:-

ZIMBABWE NATIONAL NETWORK FOR
PEOPLE

LIVING WITH HIV

AND
MUCHANYARA
MUKAMURI

LETWIN SIGAUKE N.O.

Before Honourable Mr. Justice L.M. Murasi

For Applicant
Ms. A.Y.
Sawunyama
Mr. T.
Mupamhadzi

No Appearance for Second Respondent

MURASI J.,

This is an application for rescission of judgment as provided in terms of
Rule 40 of the Labour Court Rules, 2017.

The brief facts of the matter are that the matter was remitted by the Supreme
Court for the Court to make a determination on a specific issue regarding the order for payments of damages. This remittal enjoined the Registrar to set the matter down once it was allocated to a Judge. At the time of the remittal, the
Labour Court had implemented and was implementing the IECMS programme.
The programme entails the filing and serving of documents electronically.
Pursuant to the remittal, Applicant did not register its address with the Registrar for the purposes of receiving and communicating with the Registrar. The matter was subsequently set down for 9 January 2024. Applicant was not in attendance. First Respondent was represented by the legal practitioner whilst the third Respondent did not attend. The Court proceeded to deal with the matter in terms of Rule 37 (b) of the Labour Court Rules.

Applicant’s Submissions

Ms. Sawunyama, for the Applicant, stated that the matter was a remittal from the Supreme Court, and that in itself required the active involvement of the parties concerned. She further submitted that when interpreting the provision in Rule 37 of the words ‘justice of case requires’ such consideration should have been taken into account. She argued that the Registrar did not notify the Applicant of the court date which resulted in the Applicant not attending. She added that there was no willfulness in the default as a party who is unaware of the date of the proceedings cannot be held to be in willful default. Ms. Sawunyama further submitted that the fact that Applicant had been to the Supreme Court showed that it was interested party who had to be present at the hearing. After being shown the record of proceedings, she admitted that indeed the First Respondent’s legal practitioner had made submissions on the date of the hearing.

As far as the prospects of success were concerned, Ms. Sawunyama started by stating that the order for payment should have been that the USD dollar amount was to be converted to the local currency on the prevailing interbank rate on the date of payment. She later changed this and stated that the Applicant’s correct position was that the conversion should be on a 1:1 basis. She stated that this was so as the figure had been determined prior to February 2019. The Court brought to her attention the effect of precedent regarding draft rulings and she did not make any meaningful response thereto.

First Respondent’s Submissions

Mr. Mupamhadzi, for the First Respondent, submitted that the crucial issue was that Applicant had not approached the Registrar after the remittal of the case to provide with the electronic details required under the IECMS platform. He stated that it was not the Registrar’s duty to follow up on litigants to do so. He further stated that as Applicant avers that the matter was ‘hotly contested’, Applicant should have taken steps to find out what was happening to the matter. He argued that the explanation was not reasonable in the circumstances.

As far as the prospects of success were concerned, Mr. Mupamhadzi submitted that the Applicant’s position was confusing as the rate of exchange to be used given by Applicant had two different options. He stated that the law and precedent did not support Applicant’s contestations.

ANALYSIS


Applicant’s legal practitioners aver that the non-attendance was due to lack of notification by the Registrar. Clearly, the Applicant did not take any steps to register with the Registrar after the matter was remitted by the Supreme Court. The blame falls squarely on the Applicant. However that is not the issue in question. The fact is that the Court thereafter proceeded to deal with the matter in terms of Rule 37 (b) of the Labour Court Rules. The Court heard submissions on the merits. Does the Order fall into the category of a ‘default judgment’? MATHONSI J (as he then was) had this to say in **Victoria Fall Municipality v S.C. Mutare N.O. & Anor** HB 160/16:

“The powers of the Labour Court are provided for in s89 and are; hearing and determining applications and appeals in terms of the Act or any other enactment; hearing matters referred by the Minister in terms of the Act, referring a dispute to a labour officer; appointment of an arbitrator from the panel of arbitrators and exercise the same review powers as the High Court in respect of Labour matters.

The grant of default judgment is only provided for in r30 of the Labour Court Rules, which provides:

‘Where a party or witness fails to appear at a hearing the court may, according to the nature of the case, or as the justice of the case requires-

a. Proceed with the hearing on the merits; or
b. Postpone the matter; nor
c. Upon application by the party in attendance, enter default judgment.’

That provision makes it clear that the grant of a default judgment is alternative to proceeding with the hearing on the merits. They are two different procedures.”

The Learned Judge was referring to the Rules as they were before the 2017 amendment. However the rule on default judgment was largely retained as it was. What this clearly shows is that the two options available to the Court, apart from postponing the matter, is to grant a default judgment or proceed on the merits. The procedures are clearly different. It therefore cannot be said that where a matter is determined on the merits, it has the complexion of a default judgment. Where the Court has proceeded to hear the matter on the merits, a party who was not in attendance, cannot therefore seek the ‘rescission’ of a matter determined on the merits. This would mean that the present application of rescission is improperly before this Court.

However, for the sake of completeness, I wish to deal with the Applicant’s sole submission on the merits. This revolves around the computation of the damages and on the correct exchange rate to be used. This Court in formed the Applicant’s legal practitioner during the hearing that precedent had clearly shown the status of a draft ruling. It was determined by the Superior Court that a draft ruling remains a draft until its confirmation by this Court. This therefore means that the status of the draft riling issued by the Third Respondent remains a draft until such confirmation. This would mean that submission that the order was made prior to February 2019 would not be correct.

*Ms. Sawunyama* sought to rely on the **Nhimbe Case** which she stated she had argued before the Court. However, I of the considered view that the position which took in **Wellington Muneka v Olivine Industries** is the correct one. The Court had this say:


“In Zambezi Gas (Pvt) Ltd vs N.R. Barber (Pvt) Ltd SC 3/20 in which MALABA CJ had this to say at page 9 of the cyclostyled judgment:

“The liabilities referred to in s 4(1)(d) of S.I 33/19 can be in the form of judgment debts and such liabilities amount to obligations which should be settled by the judgment debtor. In interpreting s 4 (1)(d), regard should be had to assets and liabilities which existed immediately before the effective date of the promulgation of S.I. 33/19. The value of the assets and liabilities should have been expressed in United States dollars immediately before 22 February 2019 for the provision of s 4 (1)(d) of S.I 33/19 to apply to them.

Section 4 (1)(d) of S.I. 33/19 would not apply to assets and liabilities, the values of which were expressed in any foreign currency other than the United States dollar immediately before the effective date. If, for example, the value of the assets and liabilities was, immediately before the effective date, still to be assessed by application of an agreed formula, s 4 (1)(d) of S.I. 33/19 would not apply to such a transaction even if the payment would thereafter be in United States dollars. It is the assessment and expression of the value of assets and liabilities in United States dollars that matters.”

A reading of the above makes it clear that for a liability to be covered by the 1:1 rule, the liability should be have arisen before the effective date. In casu, the liability to pay, that is the judgment, must have been so determined before February 2019. Such a position was supported by UCHENA JA in Regis Maganzi vs Francis Jekera & Another SC 52/22 where he had this to say:

“The order granted in Case No. HC 11449/18 was granted on 22/2/2019 and as such was not granted immediately before the effective date of the promulgation of S.I. 33 of 2019. The order was granted on the effective date but after it had come into effect, it can therefore not be valued in RTGS dollars at the rate of 1 to 1 as it falls under the provisions of section 4 (1) (e) of S.I. 33 of 2019.”

The two judgments cited above clearly show the correct position of the law. This of captured in the order that was granted by this Court. There are therefore no prospects of success. The application ought to be dismissed. I, however, do not believe that First Respondent would be entitled to costs on a legal practitioner/client scale as prayed for by Mr. Mupamhadzi.


In the result, the application for rescission of the default judgment is hereby dismissed and Applicant to meet First Respondent’s costs on the ordinary scale.


| Topic                                                                 | Description                                                                                                                                 |
|----------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------|
| MsSrs Thoughts Deme Attorneys at law-                             | Applicant’s legal practitioners                                                                                                 |
| MsSrs Matsikidze Attorneys at Law-                               | First Respondent’s legal practitioners                                                                                                 |
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