Borradaile Hospital v N Chirimo & Anor and Honourable N K Nhimba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/262/16
HELD AT HARARE 22 MARCH 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/262/16

HELD AT HARARE 22 MARCH 2016				CASE NO LC/H/1006/13

& 13 MAY 2016

In the matter between:

BORRADAILE HOSPITAL				Applicant

And

N CHIRIMO & ANOR					1st Respondents

And

HONOURABLE N K NHIMBA				2nd Respondent

Before The Honourable B S Chidziva, Judge

For Applicant			Mr T Ndoro (Human Resources Executive)

For Respondents		Mr S N Mutindindi  (Trade Unionist)

CHIDZIVA, J:

This is an application for stay of execution of the decision of the Honourable N K Mhimba that was handed down on 14 August 2013.  The award states as follows

“Accordingly, it is hereby determined that the Labour Consultant has no locus standi to appear before the arbitrator, therefore it is hereby ordered that the representation of labour consultant Mr T Ndoro representing Borradaile Hospital in the arbitration tribunal is hereby dismissed.  It is noted that when the respondent need a representative who appears before this tribunal guidance shall be taken from S.I. 217 of 2003 section 4 and section 92 of the |labour Act [Chapter 28:01]

Further the parties to this dispute shall file their written heads of arguments on the substantive issues on alleged unfair dismissal within two weeks (14 days) after the receipt of this arbitral award.”

The applicant has made this application based on the following grounds

Applicant has bright prospects of success on appeal.

The applicant will suffer irreparable harm if the outcome of the appeal is pre-empted if stay of execution is not granted.

The applicant further submitted that it is registered with the Medical and Allied

Industry.  The arbitrator is from the NEC Education and has no jurisdiction over these matters.  Applicant further submitted that despite its communication on their affiliation the arbitrator proceeded to hear the matter and made an award which is null and void.

The respondent in response raised two preliminary points to the effect that

The appeal is against a default judgment and thus the appeal and application are not properly before this court.

Mr Ndoro is cited as a labour consultant and has no locus standi to stand in this court.

Mr Ndoro thereafter responded by stating that he is now employed as a Human Resources

Executive on part-time basis.  He then produce

The contract of employment.

CIMAS Medical Aid Card.

He further submitted that if the award is illegal the court was dealing with a non-

event.  He stated that the award does not carry any legal consequence.

In the case of Christopher Zvinavashe v Nobuhle Ndlovu SC 40/06 GWAUNZA JA had this to say about default judgments

“A default judgment can only be set aside by a successful application for rescission of the judgment under the rules of the relevant court.  The application must be made by the defaulting party himself, as indicated by the expression “purging his default”--.  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.”

In view of the Zvinavashe case (supra) the appeal against a default award is not properly before this court.  It also follows that this application therefore has no legal standing as default awards and judgments are not appealable.

To that end therefore this court finds that the matter is improperly before this court since a default judgment is not appealable.

IT IS THEREFORE ORDERED THAT

The appeal being improperly before this court be and is hereby struck off the roll.

There shall be no order as to costs.