Charity Kuyeri v Queensdale Sports Club

### Preamble
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IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/120/24
ZIMBABWE HELD AT HARARE 1ST
CASE NO. LC/H/520/23
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 1ST MARCH 2024

AND 20 MARCH 2024

In the matter between

CHARITY KUYERI

And

JUDGMENT NO. LC/H/120/24 CASE NO. LC/H/520/23

APPLICANT

QUEENSDALE SPORTS CLUB	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE , JUDGE.

FOR THE APPLICANT : MR D SITHOLE (TRADE UNIONIST)

FOR THE RESPONDENT:MR. S. MUSAPATIKA (LEGAL PRACTITIONER)

MAKAMURE J:

This is an application for rescission of a default judgment entered against the applicant on 22nd May 2023. It is opposed. The background of the matter is that the applicant is a former employee of the respondent. The applicant alleged that the respondent did not pay her terminal benefits when the parties parted ways .The matter was taken to a designated agent

.The designated agent dismissed the applicant’s claim. The applicant then approached this Court on review and the matter was struck off the roll for non- compliance with the Rules . She then made an application for reinstatement of the matter. That application was deemed abandoned in terms of the Rules of this Court. She applied for its reinstatement. On the date of hearing , the 22nd May 2023,she was in default. A default judgment was entered against her. She now seeks to have that judgment rescinded.

Preliminary Issues

Preliminary issues were raised on behalf of the respondent and were considered before the merits of the application were considered. The first preliminary issue was that the applicant failed to file heads of argument as required by the rules of this Court . For that reason, the submission was that the applicant is barred. Further, the application for rescission was filed out of time. Further still there was no application for condonation so that the non - compliance could be cured. The respondent also raised the issue that the applicant had failed

to pay the respondent’s costs. Reliance was placed on the case of Makoni v Makoni SC 7/18 on this issue. In support of the non-compliance reference was made to the case of Viking Woodwork (Private) Limited v Bluebells Enterprises (Private ) Limited1998 (2) ZLR 249(S).The respondent also raised the issue that the applicant had cited a wrong respondent.

It was argued on behalf of the respondent that the applicant became aware of the judgment of 22nd My 2023 ,the very day that the default judgment was entered against her. However the present application was filed on the 4th of July 2023. That application was not preceded by an application for condonation. Mr Musapatika who appeared on behalf of the respondent also argued that the applicant ‘s failure to pay costs was a way of wearing down the respondent with costs and thus harass the respondent. It was further argued on behalf of the respondent

that it will not be able to recover the costs as the applicant ‘s whereabouts are unknown as she uses the address of her representatives of record.

In response Mr Sithole who represented the applicant conceded that the application was filed out of time and that such failure was due to an oversight on their part. Mr Sithole also explained that the default was not deliberate in that the applicant only got to know of the date of set down about five (5) minutes before Court commenced . This was because the applicant was actually called from the court by a court official regarding the hearing which was about to commence. Mr Sithole tendered apologies on behalf of the applicant for failure to make an application for condonation .He also indicated that they had challenges with the system (IECMS). On the question of costs, Mr Sithole confirmed that the applicant has been asked to pay costs on the various court appearances in different courts all in connection with this same matter.

After listening to parties and reading the papers, it is not disputed that the application was filed out of time and that there was no application for condonation. This means that the application is not properly before the Court. However, the Court is alive to the fact it is possible for parties to have faced challenges with the new system . Still even then, the rules of Court have to be adhered to. As stated in the Viking Woodwork case (above) the applicant ought to have applied for rescission there and then . That was not done. An apology was tendered for failure to comply with the rules. Rules are there for the proper functioning of the courts. There would be no need to have rules at all if a simple and well- meant apology could suffice. I associate myself with what the Supreme Court stated in Kombayi v Berkhout 1988(1)ZLR 21 (SC) that the ‘Court is reluctant to visit errors of the

legal practitioner or representative on the client to whom no blame attaches.’ The representative is expected to be acquainted with the procedure so as not to disadvantage his or her client. In the present case the failure was due to an’ oversight’. While the Court appreciates the concession made on behalf of the applicant and the apology , the non- compliance cannot be condoned.The application is not properly before the Court . It should be struck off the roll.

With respect to the wrong citation, Mr Sithole applied for amendment of the respondent’s name. This, Mr Musapatika consented to. Thus, the applicant is Queensdale Sports Club. It is not a private limited company. The citation is accordingly so amended.

Merits

It is trite that in an application for rescission of judgment, the applicant must address the following:

a)the reasonableness of the applicant’s explanation for the default ;b)the bona fides of the application to rescind the judgment; and c)bona fides of the defence on the merits of the case and whether that defence carries some prospects of success . Stockil v Griffiths 1992 (1) ZLR 172 SC.

It is also trite that an application stands or falls on its founding affidavit. The applicant failed to attend court because she says she only got to know about the set down date on the date of hearing. She says she got a call from an officer of this Court( the Judge’s Clerk) instead of having got the proper notification through the office of the Registrar. The Judge’s Clerk also advised her that the notice of set down had been sent to one Kudakwashe Zaranyika who is also one of the trade unionists representing the applicant. She also stated that the notification was said to have been sent on 16th May 2023 and that would have given her only four days’ notice ‘instead of three weeks’. She stated that since she got to know about the hearing a few minutes before the court session started , she instructed the trade unionist to go to court and seek a postponement but those efforts did not yield positive results. On the merits she stated that the respondent unfairly dismissed her from employment . She further stated in her affidavit as follows :

’19… I was employed by Queensdale Sports Club (PVT) as an assistant cook. I was unfairly discharged from my gainful employment without being paid my terminal benefits , permanent worker since 2014(sic).During 2022 respondent decided to retrench me without

paying a single dollar to me and Mr. Alexander Nhamo Nyakunu chose to lie between his teeth when he said he had paid a package of about $117,000 as retrenchment exit package which was not true, and in my previous papers to the …court , were I prayed that Mr Nyakunu must be requested to prove his payment.

20.The canteen I was operating at work is still operational even today and a relative was employed in my kitchen. It is my legitimate expectation to continue with my employment at the club. I took my matter to the N.E.C. Catering and a designated agent at the N.E.C ruled that I should  be dismissed without compensation, which is un-heard of.’

Mr Kudakwashe Zaranyika a trade unionist deposed to an affidavit in support of the applicant’s case. He stated that at various times on the 15th , 16th and 17th of May 2023 he visited the offices of the Deputy Registrar of this Court pursuing the progress in the applicant’s matter. He did not get much help. However, on the 22nd of May 2023 he received a call from the applicant advising him that the matter would be heard that day. He stated that he got the call at about 09:55hours.There was nothing much he could do in five minutes. He thereafter went to the office of the Registrar where he requested to see proof of service. A document was downloaded which showed that the notification was sent to him on 16th May 2023.He stated that that document ( notification to attend the hearing) never reached him and that that would have given him 4days’ notice.

When Mr Sithole addressed the Court ,he narrated the historical background of the matter. He then touched on the need for the respondent to pay the applicant her terminal benefits. He indicated that the applicant was given a package by the respondent and was given 14 days to consult.

In response Mr Musapatika argued that the applicant did not show whether the explanation of the default was reasonable and  that the bona fides of the application were not addressed .

The affidavit deposed to on behalf of the respondent by Alexander Nhamo Nyakunu (Mr Nyakunu) , president of the respondent gives the other side of the story. He (Mr Nyakunu) stated that the hearing was virtual. As such the call from the judge’s clerk was to ensure that the applicant was logged in. Under the circumstances there was no need to physically go to court . This therefore means that the applicant is being untruthful by suggesting that the representative had to physically attend court. Five minutes , Mr Nyakunu stated, was sufficient to enable the applicant to be logged in. Alternatively, the applicant could have

requested that the matter be stood down to allow them to prepare. The following is part of what Mr Nyakunu further stated in his affidavit :

’14. To show that the Applicant is peddling falsehoods , the notification that judgment had been granted was not updated few minutes after 1000 hours as alleged . In fact , the hearing delayed for more than an hour because the judge’s clerk was pursuing the Applicant’s representative and the judge was perusing the record. That explains why the court was still in session after 12:15hours as per the attached IECMS print out.

The judge’s clerk called the applicant and reminded her of the hearing. She did not explain her predicament to the judge’s clerk. The system will show that the update was made on 31st May at 15:29. A litigant who lies to the court should be punished by an adverse decision especially when the litigant is seeking discretionary relief. The default was willful and has not been justified.

Instead of admitting fault , Applicant is blaming the Registrar of this court. A litigant who defaults court should take liability for own actions. The notice was duly served on the Applicant’s representative of choice.

The call from the judge’s clerk was a reminder to log in and that was ignored. Even after such a courtesy, Applicant is still blaming court officials as a cover up for her errors.’

With respect to merits of the case Mr Nyakunu stated that the contract of employment between the parties was terminated mutually and in writing. He also confirmed the dismissal of the applicant’s case by a designated agent. Mr Nyakunu stated that under the circumstances even if rescission were granted there are no prospects of success.

Mr Musapatika argued that the applicant and the respondent parted ways through a mutual settlement signed by both parties. He also argued that the applicant is now claiming unfair dismissal which is incorrect.It was submitted on behalf of the respondent that the applicant is abusing court process.

It is not in dispute that on the 22nd May 2023, the applicant received a call from an official of this Court concerning the hearing of the matter on that date . She says that that was the very first time she got to know about the hearing. She says that she could not come to court at such short notice and without any preparation.

The hearing as has been shown above, by proof of the IECMS printout ,was a virtual hearing which does not require parties to physically appear at court. However, where connectivity challenges are encountered parties can make arrangements with the court officials for the affected parties to come to the courthouse so that they can use the facilities at the court house to enable the virtual hearing. It has not been suggested that this is the kind of situation that the applicant found herself in.

What happened after the default judgment was granted is of concern. She did not seek rescission within the stipulated time frame. Rule 40 of the Rules of this Court requires rescission to be applied for within twenty-one days of knowledge of the default judgment. Condonation was not sought. She now seeks the indulgence of the court. This appears to be on the basis that labour matters should not be resolved on the basis of technicalities. The principle that labour matters ought not to be resolved on the basis of technicalities must be put in its proper perspective. The principle is that it is not desirable that labour matters be resolved of the basis of technicalities, but that where there are technicalities which could be relied on to resolve a labour dispute, such technicalities should be corrected one way or another in order for merits of the main matter to be heard. Dalny Mine v Banda 1999(1)ZLR 220.

In the present matter the applicant and her representatives give the impression that the hearing was physical and the representative would have been required to go to court from wherever he was within a time space of five minutes. That is obviously impossible. When regard is had to the fact that the nearing was actually virtual and there is proof to that effect, then it becomes clear that both the applicant and her representative are not telling the truth. There was no need to walk to the courthouse. What should have happened was for the applicant to advise the other party and the court of her predicament so that a decision could be made on how to proceed. That was not done. When a comparison is made between the affidavit sworn to by the applicant and her representative with that of Mr Nyakunu, Mr Nyakunu’s version sounds more probable than that of the applicant. Further Mr Nyakunu attached printouts to his affidavit showing proof of the times recorded on the IECMS .What this means is that the explanation by the applicant in not true. The applicant took a deliberate attitude towards not attending court virtually. This shows that the default was wilful.

On the prospects of success , there is on record a copy of a signed agreement. This shows proof of mutual agreement of termination of employment .However, the impression given

on behalf of the applicant was that she was unfairly dismissed. The applicant has shown a propensity to lie to the Court and the written agreement which contradicts her claims confirms this. As correctly submitted on behalf of the respondent , the court cannot reward a dishonest litigant. In Deputy Sheriff, Harare v Mahleza &Anor 1997 (2)ZLR 425 (H) the court held that:’ it is a basic principle that people are not allowed to come to court seeking

the court’s assistance if they are guilty of a lack of probity or honesty in respect of the circumstances which cause them to seek relief from the court.’ In the present matter the applicant has been dishonest. She cannot benefit from her dishonesty . Such conduct is

discouraged. Further there must be finality to litigation. The applicant has appeared before the courts in no less than four matters which involve the same case . A stop must be put to this. In Ndebele v Ncube 1992 (1)ZLR 288(SC) the Supreme Court that :

‘ It is the policy of the law that there should be finality in litigation. On the other hand one does not want to do injustice to litigants. But it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute.

The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt — roughly translated, the law will help the vigilant but not the sluggard.

There will always be cases where the delay is due to some reasonable incapacity to act in time, or to some understandable oversight such as the misfiling, or misplacing of a document. This is not such a case.’

What has been placed before the Court shows that the respondent and the applicant parted ways amicably. This means that on the merits there are no prospects of success. Under the circumstances therefore the applicant has failed to discharge the onus required of her in order for the application to succeed.

In view of the foregoing I find that there is no merit in the application. It must be dismissed.

It is accordingly ordered that :

The application for rescission of the default judgment granted by this Court on 22nd May 2023 be and is hereby dismissed.

There is no order as to costs.

DANZIGER &PARTNERS, RESPONDENT’S LEGAL PRACTITIONERS.