FBC Bank Limited v Kudzai Kwangwari & Anor (N.O.)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H//24
HELD AT HARARE 6 FEBRUARY 2024
CASE NO. LC/H/1010/23 AND 14 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H//24

HELD AT HARARE 6 FEBRUARY 2024	CASE NO. LC/H/1010/23 AND 14 MARCH 2024

IN THE MATTER BETWEEN:-

FBC BANK LIMITED	APPLICANT

AND

KUDZAI KWANGWARI	FIRST RESPONDENT

REGISTRAR, LABOUR COURT N.O.	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Advocate Zhuwarara

For First Respondent	Mr. R. Matsikidze No Appearance for Second Respondent

MURASI J.,

This is an application for rescission of a default judgment granted by this Court on 7 November 2023.

The brief procedural history of the matter is as follows. First Respondent filed an appeal with this Court in Case Number LC/H/18/23. On the hearing date, that is, 31 May 2023, Applicant was in default and the Court allowed the appeal. Applicant thereafter did not file an application for rescission timeously. This led to the filing of an application for condonation of the late filing of an application for rescission of judgment under case Number LC/H/747/23. On the hearing date, which was on 7 November 2023, once again, Applicant did not turn up and another default judgment was granted by this Court. A reading of the documents filed of record and particularly the Founding Affidavit sworn to on 6 December 2023, shows that the present application is an application for rescission of the default judgment of 7 November 2023.

At the commencement of the proceedings, Mr. Matsikidze raised preliminary issues in the matter. He stated that Applicant has inserted two Draft Orders in the application which were inconsistent with each other. He further stated that in the first Draft Order on page 103, the relief sought was

that the application sought in Case Number LC/H/18/23 be granted whilst in the second Draft Order, the relief sought was in respect of Case number LC/H/747/23. He argued that the two Draft Orders were seeking different and separate forms of relief.

The second issue he raised was that the relief sought in the present application was incorrect. Mr. Matsikidze submitted that what the Applicant should have applied for was a correction of the Order and not its rescission. This, he said, was a result of the information supplied by the Applicant was incorrect and that the Order was a consequence of the Applicant’s error. He referred to page 119 of the record. He urged the Court to strike the application off the roll.

In response, Advocate Zhuwarara stated that the First Respondent’s Counsel was mistaken in stating that there were two inconsistent Draft Orders sought by the Applicant. He further stated that the other document that was referred to by the First Respondent was an attachment to the record and referred to in the submissions made by the Applicant. He submitted that it therefore was not correct to state that Applicant sought inconsistent relief from the Court. Advocate Zhuwarara argued that Applicant had supplied the correct information but this had been incorrectly uploaded onto the IECMS system. He further submitted that Applicant always remained the FBC Bank Limited and not the other entity which mentioned in the Order.

Analysis

It is trite that Courts will always lend its ear to a litigant who takes the Court into his/her/its confidence and ‘bares’ his/her/its soul in the process. MAFUSIRE J (as he then was) had this to say in Nehanda Housing Coop Society and Others v Moyo and Others HH 987/15:

“In my view, a party that conceals material information must be unworthy of the protection or assistance of the court. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter, even those that you may perceive to be adverse to the relief that you seek..

Failure to disclose material facts disentitles the applicant to the relief which he seeks, or disentitles him to keep the one he had already obtained.”

Before dealing with the issues raised by Mr. Matsikidze I wish to make the following observations. The Applicant has cited the Registrar of the Labour Court. It is not apparent from the submissions why this was so. I can only surmise that the citation has something to do with the submissions in paragraph 11 of Applicant’s Founding Affidavit. In this respect I need to reproduce paragraphs 7 and 11 of that Founding Affidavit. They read as follows:

“7. The procedural issue arises from the fact that this entire matter has been haunted by inexplicable instances of fundamental and glaring mistakes on the part of the applicants, legal practitioners, the registry, probably this honourable court, and the first respondent.

11. Further examinations of the documents issued by the Registrar of this honourable court establish that the Registrar’s mistake went further. The Notice of Set-down

LC/H/747/23 was also issued to the same wrong party, FBC Building Society (Private) Limited. A copy is annexed marked “B”.”

The two paragraphs do not show the correct information and procedure. The IECMS system was launched at the Labour Court on 1st February 2023. Prior to that date, the Judicial Service Commission had conducted training for both legal practitioners and labour officers. These parties were requested to file documentation showing their respective electronic addresses for use after the launch. Case number LC/H/747/23 was filed well AFTER the launch of the IECMS platform. The platform mandates a litigant to file with the Registrar details of the Applicant or Appellant as well as those of the other party. The Registrar does not know of these until they are filed with the Court. It is the sole responsibility of that party to supply those details. It is therefore not correct that the name FBC Building Society was a result of an error from the Registrar’s Office. Page 119 of the record shows that the Applicant provided the details of both FBC Building Society and FBC Bank Limited. When the Notice of Set down was being sent, the system ‘picked’ FBC Building Society as it had been given by the Applicant. Annexure ‘D’ confirms this position as the system ‘picked’ the email of the requisite legal practitioner which is shown as svhwacha@dmh.co.zw. The name of the ‘wrong party’ as averred by the Applicant in the Founding Affidavit came from the Applicant.

It therefore becomes an interesting scenario where the Founding Affidavit avers that ‘probably this honourable court’ was equally culpable in the ‘glaring instances of fundamental and glaring mistakes’. What is interesting is that the Notice of Set Down went to the correct email address. The Case number cited was the correct one. There was no inquiry placed with the Registrar prior to the court date. There was no attendance on the court date. Clearly, the intention by the Applicant to place the blame on the Registrar in circumstances where it lay with the Applicant is ridiculous to say the least. There was an attempt by Advocate Zhuwarara to state that the Registrar could be to blame for incorrectly downloading the information. When it was brought to his attention that at that stage it was the duty of litigants to down-load their own information, he correctly withdrew the submission. Applicant has attempted to cast aspersions where they do not belong.

What is clear is that the error emanated from the Applicant. Applicant avers that the default judgment was made against the ‘wrong party’. The question that arises is what benefit is there for rescinding a judgment which does not affect the Applicant? Applicant avers that this judgment is the result of a patent mistake. I have elsewhere in this judgment referred to the procedure and pointed out as to who is to blame for the ‘patent mistake’. Is Applicant sending the Court on a wild-goose chase? It is my view that a composite application for the correction and rescission of the judgment is the appropriate route. In the circumstances, the Applicant, in its own view, would want to rescind a judgment which it considers brutum fulmen. The Court cannot become complicit to such a procedure.

This is an application for rescission of the default judgment entered by the Court on 7th November 2023. What the application would entail is the Founding Affidavit pertaining to the particular

hearing and documents relevant to the hearing made on that date and the accompanying Draft Order. In this regard, the Founding Affidavit dated 6th December 2023, the Order issued on 7th November 2023, the Supporting Affidavit by Patrick Nyeperayi are part of the record. Mr. Matsikidze took issue with the Draft Orders that are filed of record. He stated that these are improperly before the Court and should not have been placed where they are at present.

Page 101 of the record shows the following Draft Order:

“1. The Default Order in Case 18/23 of 31st May 2023 be rescinded

2. Each party to meet own costs.” The Draft Order at page 103 is as follows:

“1. Application for Condonation of late filing of application for rescission be granted.

2. Applicant be ordered to file application for rescission of default judgment within 10

days.”

The Draft Order at page 105 is as follows:

“The default judgment entered against FBC Building Society in Case Number LC/H/747/23 be and is hereby set aside.

The Registrar is ordered and directed to set down Case No. LC/H/747/23 on notice properly directed to FBC Bank Limited through its lawyers of record…”

The Draft Orders appear consecutively. The question asked by Mr. Matsikidze was why the Draft Orders on pages 103 and 101 had been included. The explanation tendered for the inclusion of the Draft Orders is found in paragraph 26 of the Founding Affidavit. It is stated that the deponent annexes ‘the entire application for condonation for the late filing of an application for rescission of judgment and incorporate the same’. The way the Draft Orders have been arranged would tend to show that they are part of the present of application. It would have been ‘neater’ to place them after the respective affidavits. The Founding Affidavit in the present matter does not refer to those Draft Orders as being the prayer sought by the Applicant.

However, I must point out that Counsel for the Respondent should have clearly analyzed these documents before making the preliminary point. It is trite that a preliminary point should only be taken where, firstly, it is meritable and, secondly, is likely to dispose of the matter. In the circumstances, I find that the second preliminary point to be without merit and it ought to be dismissed.

As stated earlier, the Applicant should have made a composite application for the correction of the Court Order and its rescission. Nothing will be cured by rescinding the Court Order which the Applicant deems to be against a ‘wrong party’. The application is therefore improperly before the Court.

The Court makes the following Order:

The first preliminary point in respect of alleged defective Draft Orders is hereby dismissed.

The second preliminary point relating to the propriety of the present application is hereby upheld.

The application is hereby struck off the roll as it is improperly before the Court.

Each party to meet its own costs.

Dube, Manikai & Hwacha-	Applicant’s legal practitioners Matsikidze Attorneys at Law- Respondent’s legal practitioners.