City of Harare v Charles Sigauke

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 05 JULY, 2023
JUDGMENT NO. LC/H/293/23 CASE NO. LC/H/236/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 05 JULY, 2023

AND 03 OCTOBER, 2023

In the matter between:-

JUDGMENT NO. LC/H/293/23 CASE NO. LC/H/236/23

City of Harare	Applicant

Versus

Charles Sigauke	Respondent

Before The Honourable L. Hove, Judge:

For Applicant	: N.B. Nyathi For Respondent	: L.Matapura

HOVE J:

This is an application for condonation of late filing of an application for leave to appeal to the Supreme Court and extension of time within which to file an application for leave to appeal a decision of this court to the Supreme Court.

The decision of the Court which is sought to be appealed against reads in first part as follows;

“the appeal being unopposed it be and is hereby upheld with each party bearing its own costs.”

The decision of the Court was therefore a default order.

In view of this factual position, the respondent challenged the application for condonation of the late filing of an application for leave to appeal to the Supreme Court by raising a preliminary point that;

“it is not disputed that the matter under case number LC/H/262/22 was heard and the Court found that there was no applicant before it as a result judgement in default was granted in favour of the respondent. The applicant fails to address the fact that a default judgement cannot be appealed against”

The respondent had raised this preliminary point in his opposing affidavit. It submitted in paragraph

2.2 of his affidavit that one cannot appeal against a default judgment. The appropriate application under these circumstances would be to apply for rescission of default judgement. It was then submitted that the application was improperly before the Court and ought to be struck off.

Despite this preliminary point being raised in the opposing papers, the applicant ignored it in its heads of arguments. It failed to address it or respond to it in its heads of arguments.

The Supreme Court in Guoxing Gong v Mayor Logistics (Pvt) Ltd and anor SC 2/17 held that;

“it is trite that …no appeal lies to this Court Against a default judgement which is

normally reversed by rescission of judgement or a declaration of nullity…”

This trite position was again reiterated by the Supreme Court in the case of OK Zimbabwe Limited v Tazvivinga SC 134/21 when it stated the following;

“as the judgment that was given by the Court a quo was a default judgment in nature. The question that ought to be asked is whether one can appeal on the merits before the bar has been lifted. According to our law, a party cannot appeal against a default judgement. The correct procedure would be for the party to make an application for the judgement to be rescinded first. See Chintengo v Trendor & anor SC 67/19.

This approach was again stated by the Supreme Court in Sibanda and ors v Nkayi Rural District Council 1999 (1) ZLR 32 (S) where the Court held as follows;

The present appeal is therefore against the order on 23 May 1997 dismissing the application for rescission of the order made on 8 November 1996. That order of May 23 1997, as I understand, was effectively a default judgement. The practitioner who appeared for the appellants presented no submissions on the merits. There were no reasons given for judgement. Once the postponement was refused, procedurally, therefore, the appellants should have sought a rescission of the default Judgement of 23 May, rather than appeal against it. On this ground alone the appeal must fail.”

The above position of law has been ignored completely by the applicant in its papers. In submissions made in Court on the date of hearing, it was submitted that the judgment was not a default judgement. It was further submitted that any Judgment of the Court can be appealed to the Supreme Court in terms of the Labour Act [Chapter 28:01] (the Act).

These two submissions are not accurate in law. While it is true that the rules of the Court provide for appeals against decisions of the Labour Court to the Supreme Court, this cannot nullify the trite position that the procedure is to apply for rescission of Judgements issued in default. See rule 40 of the Labour court rules, 2017. The rules provide for applications of rescission in cases were default judgments are issued. Secondly, the Judgement appealed against clearly states that the appeal was unopposed and it was on that basis that the appeal succeeded.

This Court’s decision is essentially a default decision which ought to have been rescinded through an application for rescission of a default order. The application is therefore improperly before the court as no appeal can arise out of a default Judgement.

The parties raised other preliminary points and several issues for determination were placed before the Court. A finding however that the application is improperly before the Court, makes the application a nullity and effectively disposes of the matter.

In the result, the preliminary point raised by the respondent in paragraph 4.1 of its heads of argument is upheld and the following order is therefore appropriate.

Order:

The application for condonation of late filling of an application for leave to appeal to the Supreme Court being improperly before the Court, it be and is hereby struck off with costs.