Enginet (Pvt) Ltd v Phillip Kativhu and 9 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2024
HARARE, 18 FEBRUARY, 2025 AND
27 FEBRUARY 2025
CASE NO LC/H/1291/24
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IN THE LABOUR COURT OF ZIMBABWE	           	JUDGMENT NO LC/H//2024

HARARE, 18 FEBRUARY, 2025   AND

27 FEBRUARY 2025                   		                         CASE NO LC/H/1291/24

ENGINET (PVT) LTD                                                 	        	         APPLICANT

PHILLIP KATIVHU AND 9 OTHERS   			                   RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant      		- K. Mugabe, Officer

For Respondent		- L.C. Ndoro, Attorney

MUSARIRI, J:

Applicant applied to this Court for the rescission of a default judgment.  The application was made in terms of Section 92C of the Labour Act Chapter 28:01 as read with Rule 40 of the Labour Court Rules, 2017.  Respondents opposed the application.

After hearing oral argument the court upheld respondent’s point in limine and struck out applicant’s answering affidavit which had been filed without the Court’s leave per Rule 14 (5).

The pertinent part of applicant’s founding affidavit deposed by its Chief Executive Officer (CEO) stated that

“10.	The matter was set down for hearing on 25th November 2024 and the reason for me not attending is that I had travelled to the Republic of South Africa for routine medical checks.  I departed on 27th of October 2024 with the hope that Mr King Mugabe who was then the Company Legal and Corporate Service Advisor would attend to the matter as had earlier on been resolved.  However, Mr King Dube resigned from the company on the eve of the matter.  In that regard I would not be able to travel and attend to the matter.  I only managed to travel on 27th of November 2024.  However, I had phoned the Court Registrar on 25th of November, 2024 who indicated that it was a bit late as the matter had been heard earlier on the day.  The reason for default is therefore not wilful but a result of the above inconveniences.  I have attached copies of my passport pages showing when I crossed the borders to and from South Africa as Annexture……. Mr Mugabe’s resignation letter is attached ….

11.	The Applicant has bona fides in the main matter of challenging the arbitral award issued by the tenth Respondent, which award is susceptible to be set aside on many grounds one of which is that it was issued on the basis other than that sought by the 1st to 9th Respondent who were claimants before the arbitrator.  The Applicant does not need to unnecessarily inundate the present application with issues that are contained in the appeal against the Arbitral Award under LC/H/859/24.  In that regard, Applicant asks this Honourable Court to consider the contents of the Appeal matter including the heads of arguments therein as if they are contained in this matter as demonstration of prospects of success in the main matter.”

In their opposing affidavit, respondents countered that,

“5.1.	The (Mugabe)  resignation is alleged to have been tendered on the 24th of November 2024

which was a Sunday.  There is no way that Mugabe could have tendered his resignation on a Sunday being a non-working day.

5.2.	There is no proof to show that the resignation was received at the Applicant’s offices on the date alleged.

5.3.	The same King Mugabe who is alleged to have resigned on the 24th of November 2024 is the one who served the Application for rescission on the 1st to 9th Respondent’s Legal Counsel Mr L.C Ndoro on behalf of the Applicant ….. Clearly, the Applicant is playing games with the court.

6.	In light of the above, it is submitted that there is no acceptable explanation for the default.

7.	…. In casu, the Applicant has not in any way addressed the merits in LC/H/859/24 as is required in terms of the law.  The merits of the dispute are not addressed by making reference to submissions made in another matter.  Same should have been addressed in the instant matter.  It is trite that an application stands or falls on its founding affidavit.  With the Applicant not having addressed the merits, the application cannot succeed.”

Analysis

The requirements for rescission of a default judgment were set in the case of

Chihwayi v Atish 2007 (2) ZLR 89

Per Sandura JA at PP 94H-95A

“ But it is clear in principle and in long standing practice of our courts two essential elements of ‘sufficient cause’ for rescission of a judgment by default are:

that the party seeking relief must present a reasonable and acceptable explanation for his default; and

that on the merits such party has a bona fide defence which, prima facie, carries some prospect of success.”

In casu applicant states that the reason for their non- appearance at Court was the resignation of  K. Mugabe their Advisor.  In the founding affidavit the CEO talks of the resignation but does not mention Mugabe’s re-engagement.  In their Response the respondents disputed the alleged resignation because Mugabe served this application on them.  Then this year applicant puts in an answer (not authorised by the Court) claiming that Mugabe was re-engaged.  No proper explanation is given for the sudden resignation or the re-engagement.  The explanation for default smells fishy as indicated by Respondents.

As regards the prospects of success, applicant just referred the Court to its heads of argument filed in its dismissed appeal LC/H/859/24.  In other words the applicant expects the Court to seek the heads and find prospects of success on its behalf.  That would amount to the Court descending into the arena to act as an attorney for the applicant.  That is clearly impermissible.  The Court is fortified in this view by the case of

Lunat v Patel SC 142/21

Per Mathonsi JA

“The passages in the founding affidavit I have reproduced above do not even begin to show prospects of success.  It is not enough for the applicant to refer to the grounds of appeal and expect the court to extrapolate what the prospects of success are.  The founding affidavit presents the applicant with an opportunity to set out his case.  I cannot piece it together for him.”

Conclusion

It is concluded that the application fails the test set out in the Chikwayi case supra.  The explanation for default is unsatisfactory and the prospects of success have not been set out. Therefore the application stands to be dismissed as devoid of merit,

Wherefore it is ordered that:

The application for rescission of judgment be and is hereby dismissed; and

Applicant shall pay half of Respondents’ costs of suit.

G. MUSARIRI

J-U-D-G-E