Zimbabwe Platinum Mines (Private) Limited v Forget Chireshe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/273/2016
HARARE, 15 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/273/2016

HARARE, 15 MARCH 2016 			       CASE NO. LC/H/APP/998/15

AND 6 MAY 2016

In the matter between:-

ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED		Applicant

And

FORGET CHIRESHE							Respondent

Before Honourable L.M. Murasi, Judge

For Applicant	Mr Jakuosi (Legal Practitioner) with Mr A.K. Maguchu

For Respondent	Mr K. Gama (Legal Practitioner)

MURASI J:

On 22 July 2015 this Court granted an order in which it allowed respondent’s appeal in accordance with Rule 22 of the Labour Court Rules 2006, (Statutory Instrument 59 of 2006). Applicant has applied for rescission of that judgment.  Respondent has raised a point in limine stating that appellant is disabled from making such application due to the nature of the judgment granted.  Mr Gama submitted that when the parties appeared before the Court, applicant’s Counsel applied to the Court for condonation for late filing of the Response and the Court did not grant the application and proceeded to deal with the matter.  It was argued that the Court dealt with the issue of the explanation for failure to file the Response and rejected the explanation tendered.  This meant that the appellant was barred and the Court was therefore functus officio and could not hear the application for rescission of judgment.  Mr Gama further submitted that the application was therefore improperly before the Court.  It was argued that the appellant could only have approached the Court with an application for the upliftment of the bar.

Mr Jakuosi for the applicant stated that he had approached the Court for the purpose of applying for a postponement to enable the applicant to file a proper application for condonation for late filing of the Notice of Response.  He stated that the Court dismissed the application which meant that the applicant remained barred and the resultant judgment remained a default judgment.  Mr Jakuosi argued that as the matter was not determined on the merits it was a default judgment which was not appealable and whose remedy was an application for rescission of that judgment.  It was on that score that applicant prayed that the preliminary point be dismissed.

Rule 22 of the Labour Court Rules provides:

“Where notice has been given to a party to file a notice of response within the period specified in rule 14,15 or 16 and that party fails to comply, the matter shall nevertheless be set down in terms of rule 21 and if on the day of hearing, the defaulting party –

appears and shows good cause why he or she did not file a notice of response, the Court may, according to the nature of the case, or as the justice of the requires –

postpone the matter to enable the defaulting party to comply; or

proceed to determine the mater;

or

does not appear or show good cause why he or she did not file a response, the Court may, according to the nature of the case, or as the justice of the case requires –

enter a default judgment against the defaulting party; or

proceed to determine the matter.”

What is clear is that Mr Jakuosi attended the proceedings on the date of the hearing.  However I note from the submissions he made that he limits his appearance to making an application for postponement.  Mr Jakuosi does not allude to the fact that he gave an explanation as to why applicant had not filed a Notice of Response.  The record of the proceedings of 15 July 2015 shows that Mr Jakuosi tendered the following explanation:

“When we received instruction from client, there was a similar matter in which respondent – appellant in that matter – was to be represented by Mr Gama – there was a mistake (as) believed we had filed notice of response.

When we received notice of set down when going through the record – discovered there is no response in the matter. That is the explanation for non-compliance-ask for a postponement.

I rely on GMB vs Muchero – if a party is barred Court may grant postponement to comply with the Rules.”

Mr Gama vehemently opposed this application and stated that the explanation tendered was totally unacceptable having regard to the facts of the case.  He referred to letters written to the applicant which were not responded to and the dates on which applicant had been served with the Notice of Appeal and Notice to Response from the Registrar.  Mr Gama also stated that the matter referred to by Mr Jakuosi in his explanation had reached the stage where heads of argument had been filed.  It was submitted then that the explanation tendered was woefully inadequate.

The Court, in its decision on the application made by Mr Jakuosi stated that the explanation tendered was neither reasonable nor acceptable.  The Court also stated that the evidence showed that there was tardiness on the part of applicant’s legal practitioners in dealing with the matter.  The Court declined to grant the application on the basis of the explanation tendered.  This meant that the applicant was barred.

What then is the state of the judgment given by the Court? Mr Gama submitted that it was not a default judgment as the other party was present during the proceedings and it could not therefore be termed a default judgment.  I do not agree with that submission.  The judgment was granted “in default” of applicant not having complied with the Rules of the Court.  In Zvinavashe vs Ndlovu 590/06, Gwaunza JA aptly describes what a default judgment is.  I am of the view that this Court’s judgment falls into that category.

However the question is, when the Court declined to uplift the bar operating against the applicant, was the consequent application for rescission the proper way of dealing with applicant’s predicament?  In the Zvinashe case supra, it was held as follows:

“The defining feature 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 ….  Hence a judgment by default has been defined as one obtained by “non resistance’ …”

What the defaulting party should do is to “purge” the default.  In the case where the party has not attended the hearing, the party applies to the Court stating the reasons for non-attendance.  However, in a case where a litigant has not complied with the Rules of the Court, should the litigant proceed to apply to the Court for rescission when the bar is still operating against him/her?

My view is that when a litigant is barred, he/she may not, while so barred, file any proceedings before the Court under the relevant case.  A court will not see a barred litigant on paper or in person.  A court will not hear a barred litigant while he/she remains barred.  It is only after a Court has uplifted the bar that the erstwhile barred litigant may be given audience to file process in the court as well as being given the opportunity to be heard.  It is my view that to do otherwise would be to defeat the very purpose of the bar.  The filing of processes by a litigant who is under bar is therefore a non-event.

In HPP Studios (Pvt) Ltd vs ANZ (Pvt) Ltd 200 (1) ZLR 318 Adam J had this to say at page 334:

“These rules of court are made in order to prevent delay or injustice being done owing to this delay, and a bar should not be uplifted as a matter of course; it should not be done merely for the asking otherwise the rules may as well be torn up.”

In my view what the case underlines is the observance of rules of court.  It cannot be said whilst the court has barred a litigant in one instance to address it because of an existing bar, it should then allow the same litigant to appear before it to make a rescission of a judgment granted when the court deemed the litigant to have flagrantly disregarded the rules.  This would inevitably result in a travesty of justice.

In casu the Court declined to uplift bar operating against applicant.  The bar is extant and has not been uplifted.  Applicant has made an application for rescission of the judgment whilst that bar is still operating against it.  Is the application properly before the Court?  I think not.  As stated in the Zvinavashe case, supra, the applicant has not “purged” itself of the reason the Court granted the default judgment in the first place.  The Court deemed the explanation tendered unsatisfactory and declined to uplift the bar.  That bar still exists.  It is my view that the application for rescission of the judgment is improperly before the Court.  The point in limine ought to be upheld.

The Court makes the following order:

The point in limine, being with merit, be and is hereby upheld.

The application for rescission of judgment, being improperly before the Court, be and is hereby struck off roll.

Applicant to meet respondent’s costs in this application.

Dube, Manikai & Hwacha, applicant’s legal practitioners

Gama & Partners, respondent’s legal practitioners