Kids Are Kids Academy & Ors v Mungate & Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/245/25
HARARE, 17 JUNE, 2025 AND
14 JULY 2025
CASE NO LC/H/369/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/245/25 HARARE, 17 JUNE, 2025 AND

14 JULY 2025	CASE NO LC/H/369/25

KIDS ARE KIDS ACADEMY	1ST APPLICANT

LAURETTA WANYAYA	2ND APPLICANT

SIMON MUNGATE	3RD RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicants	- P. Ngwenya, Attorney For 1st Respondent	- No Appearance, Absentia For 2nd Respondent	- D. Masenda, Respondent

1

For 3rd Respondent	- S. Mungate, Respondent

MUSARIRI, J:

Applicants applied for the rescission of a default judgment issued against them by this Court. The application was made in terms of Rule 40 of the Labour Court Rules, 2017. Respondents opposed the application.

Applicants’ founding affidavit stated that,

“8. The Labour Court order was granted on the 21st of March 2025 and the order was served and received by the Applicants on the 28th of March 2025…

The Applicants indeed received the Notice of appeal on 14 February 2025 as correctly shown by the record. However, the representatives of the Applicants as shown in the proceedings before the NEC, the National Association of School Development Associations and Committees (NASDAC) did not act.

I confirm that on 14th of February 2025, I handed over the notice of appeal which had been served on the 1st Applicant to one Mr Banny Manokora who is the Secretary General of the Association.

I was made to believe that the matter was still pending until on the 28th of March when I received the default order.

It therefore means that my erstwhile representatives were ignorant of the functioning of the new system (IECMS) hence the default. The Applicants’ failure to appear in court or oppose the matter was therefore not willful.

The Applicants respectfully submit that it has good prospects of success on the main matter as the appeal was hopeless. More particularly: -

Ground of appeal 1.1 was not an appeal ground by a review ground. As such, same ought to be struck off the appeal.

Most of the claims made by the Respondents before the NEC had prescribed through the lapse of two years. As such, same could not find a cause of action in appeal.

There was no basis for the 2nd Respondent to be sued and hence this ground will fail.

The Respondents did not submit or argue any lawful basis for the claim for 1% recognition of service when they had monthly contracts.

The 1st Respondent’s grounds of appeal seek to impugn a factual finding of the post which was in the contract. In actual fact, she seeks for the court to make her a new contract as a teacher when she signed one as a facilitator. … The Designated Agent therefore could not exercise jurisdiction as the binding CBA did not have a grade for her post…

For the 3rd Respondent, the Designated agent clearly stated that notice pay did not

apply as the contract terminated by the effluxion of time…

In their affidavits before the appeal court, the Respondents just plucked figures from the air. There is no explanation as to which CBA they rely on for the minimum salary the 1st Applicant ought to pay ….

The issue of calculations was properly done by the Designated agent and will stand

by the findings.”

Per contra respondents’ opposing affidavit countered that,

“5. The attempt by the Respondents to explain away their default tends to prove willful

disregard of court process by the Respondents. I say this because;

Firstly the Respondents swear positively that the National Association of School Development Associations and Committees were their self-appointed representatives and agents;

Secondly the Respondents have not bothered to obtain an affidavit from the National Association of School Development Associations and Committees explaining what date they received the appeals papers from the Respondents and what they did when they received those court papers from the Respondents; and

Thirdly, having received the appeal papers and being aware that a response needed to be filed within ten working days, the Respondents are however not bothered to explain what efforts they made to make sure that a response was filed, even out of time.

Ad paragraph 21.1

This is denied. In any case even if this ground was struck off, that would have no effect whatsoever on the appeal itself. The rest of the grounds would remain intact.

Ad paragraph 21.2

This is denied. The Respondents simply say that ‘most of the claims’ made by the appellants before the NEC had prescribed. Yet this was never an argument made before the NEC and the decision of the NEC does not address this issue…

Ad paragraph 21.3

This is denied. In paragraph 1.4 of the Notice of Appeal, we clearly outline our basis in law for alleging that the NEC erred in absolving the 2nd Respondent of liability.

Ad paragraph 21.4

This is denied. It is not correct that the Appellants were on monthly contracts. The Collective Bargaining Agreements, which Appellants rely on provide for the 1% recognition of service.

Ad paragraph 21.5

This is denied. Surely the Respondents are aware that the term ‘Facilitator’ refers to ‘teacher’ under the new curriculum. I explained this in my affidavit in support of the Appeal

….

Ad paragraph 21.6

There was never a claim for notice pay. The Designated Agent clearly did not sufficiently consider the provisions of the Collective Bargaining Agreements on the recognition of service.

Ad paragraph 21.7

… It is surprising that the Respondents are saying this when in their own documents before

the NEC, they acknowledge that they underpaid the Appellants.

Ad paragraph 21.8

This is denied. The Appellants clearly outlined in detail the calculations of the amounts

due to them.”

Analysis

Default: The applicants failed to appear in court on the date of hearing that is the 21st March 2025. As a result of their non-appearance, a default judgment was issued in favor of the respondents. Applicants stated that they handed over the notice of appeal to their representatives NASDAC. The latter failed to file a response or appear in Court for the hearing. However they did not get a supporting affidavit from NASDAC explaining why their response was not filed with the Court. They sought to rely on a letter purportedly written by NASDAC to the Registrar of this Court on 28 March 2025 which was a week after the default judgment. The contents do not say they received the notice of appeal on the 14th February 2025 as alleged by applicants. Neither does the letter explain why a response was not filed with the Court. These deficiencies make the explanation for default unsatisfactory.

Merits

Applicant stated that ‘most of the claims made by respondents’ had prescribed through ‘the lapse of two years.’ The statement was not elaborated thus making it a bald allegation. In any event the impugned determination dated 13th January 2025 disallowed claims from 2021 through to August

2023. This suggests that the claims allowed fell within 2 years of the determination. 2nd Applicant says there was no basis for suing her. The employment contracts for respondents show that 2nd applicant acted as agent for 1st applicant. Therefore, indeed she should not have been cited. The quibble about the difference between a ‘teacher’ and a ‘facilitator’ is a matter of semantics as explained by respondents. As regards applicable minimum wages, the Designated Agent in the determination showed he took them from the applicable CBA SI 267/20. Applicants have not shown how the CBA was violated. All in all, save for the misjoinder of the 2nd applicant, the application does not have reasonable prospects of success.

CONCLUSION

But for the misjoinder of the 2nd Applicant, the Court would have dismissed the application as devoid of merit. However, it is necessary to correct the mis-joinder through an appropriate order.

Wherefore it is ordered that,

The application for rescission of judgment is partially allowed;

The order (LCH 125/25) issued by this Court on the 21st March 2025 is varied in paragraph 2(i) by the deletion of the words

“The Respondents (Kids are Kids Academy and Lauretta Wanyanya) are ordered”

and substitution of the following

‘The Respondent (Kids Are Kids Academy) is ordered’ and

Each party shall bear its own costs.

J-U-D-G-E