Kunyu Mining (Pvt) Ltd v V. Tasiyana N.O & 91 Others

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/309/24
HARARE 14 MAY, 2024
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THE LABOUR COURT OF ZIMBABWE HARARE 14 MAY, 2024

AND 17 JULY, 2024

In the matter between: -

JUDGMENT NO. LC/H/309/24

CASE NO. LC/H/106/24

Kunyu Mining (Pvt) Ltd	Applicant

Versus

V. Tasiyana N.O	1ST Respondent

T. Marisa N.O	2nd Respondent

Edward Dzinduwa & 90 others	3rd to 92nd Respondents

Before the Honourable L. Hove, Judge:

For Applicant:	Mr. A. Chimhofu with Ms. F. Mazorodze For 1st and 2nd Respondents:	no appearance

For 3rd to 92nd Respondents:	Mr. P. Gomo

This is an application for review. The applicant is challenging the manner in which the 1st and 2nd respondents conducted the hearing in the dispute between itself and the 3rd respondent to the 92nd respondents who were the applicant’s former employees.

The 1st three grounds for review are challenging the procedure which led to the determination by the 1st respondent. The 4th ground for review is however purporting to challenge a substantive finding made by the respondent in awarding damages. The 4th ground challenges how the 1st applicant had decided to award damages in United States dollars when he ought to have awarded partly in United States dollars and partly in Zimbabwean dollars.

This ground is not raising any procedural issue. It is seeking to challenge a substantive decision by the 1st respondent that the 3rd to the 92nd respondents be paid in United States dollars.

In ‘A guide to Administrative and Local Government Law in Zimbabwe (2012)’ at page 26, the author,

G.Feltoe wrote that;

“The remedy of the review must not be confused with that of appeal. The main difference between these two remedies is that in an appeal what is in question is the substantive correctness of the original decision, whereas, on review the High Court is not delving into the substantive correctness of the original decision, but is only determining

whether there are any reviewable procedural irregularities or any action which was reviewable because it was ultra vires the powers allocated to the tribunal, see Tselentis v Salisbury City Council 1965 (4) SA 61.”

Ground of review number 4 is not challenging any procedural irregularities or any action which was reviewable because it was ultra vires the powers allocated to the tribunal. The ground of review number 4 is therefore incompetent in an application for review and must be struck out.

The first 3 grounds all challenge the manner in which the proceedings had been conducted.

The applicants’ position

The applicant alleges that the proceedings were conducted in its absence, without it having been given notice of the proceedings further that the hearing was purportedly on 16 August 2022, when no claim had, as of that date, been placed before the 1st respondent. The applicant also alleged a preliminary issue had been raised and the 1st respondent had failed to decide that preliminary point but proceeded to hear the matter on 16 August 2022 and giving audience only to the employee’s representative.

The 1st representative

The 1st respondent had initially not respondent to the allegations preferring rather that the substantive parties, that is, the employer and former employees battle it out in the application for review which was now before the Labour Court. The Court, decided to call the 1st respondent since it was being alleged that he had failed to conduct the proceedings properly and he acted maliciously and was biased against the applicant.

It was also alleged that the determination at page 23 of the record indicates that the hearing had been on 16 August 2022 when as at 16 August 2022, no claim had been placed before the 1st respondent. The claim was only filed on 20 January 2023.

The notice of hearing on page 39 of the record did not have a claim attached to it and it was giving notice for a hearing on 15 November 2022 and this was 3 months after the date, the 1st respondent claims to have conducted a hearing. It became necessary to hear the 1st applicant. He was however not in attendance on 14 May 2024 when this matter was first heard. The Registry contacted him and he attended on 10 June 2024.

Analysis

Firstly he explained that the hearing was 15 November 2022 and there was a typo error which resulted in indicating that the hearing was on 15 August 2023. The 1st respondent indicated that on the date of hearing, only one party was in attendance and that was the employee party’s representative. He indicated that the attendance registrar clearly indicated that the applicant was in default. These averments were not disputed by the applicant.

The 1st respondent submitted that because the applicant was not in attendance, he issued a default determination. The applicant’s representative had indicated that there was no claim on 15 November 2022. On the 15th of November 2022, the applicant was in default and the 1st applicant’s evidence was that he then ordered the employee parties to substantiate their claims which they did on 27 January

2023 and even served the applicant who had been in default at the hearing. The applicant did nothing after it was served on 27 January 2023.

The 1st respondent then considered the employees’ submissions and issued a default order. The applicant argued and put it to the 1st respondent that;

“You (the 1st respondent) should have insisted to call us after you had received the document”

In response the 1st respondent stated that he had no obligation to call a party who had been in default when the proceedings were conducted on 15 November 2022. He had continued to seek clarification from the party who had been in attendance. The 1st respondent stated that the initial process had a claim indicated as;

“Alleged underpayments”

but these were not qualified so he asked the employees to quantify the underpayments which they did.

He proceeded to deal with the matter on a default basis. The employees then quantified their claims and he gave his determination.

The issues and analysis

Was the conduct of the 1st respondent procedural, did he deny the applicant an opportunity to be heard? I think not. The applicant denied itself an opportunity to be heard. The matter was set down for 15 November 2022. The applicant as well as the employees were given notice of the hearing of 15 November 2022. If the applicant was of the opinion that the claim as it was presented in the initial documents was inadequate, it ought to have attended the hearing to challenge the claims but it decided not to protect its interests and decided not to attend. It snubbed the hearing of 15 November 2022.

The 1st respondent proceeded with the matter and requested the employees to provide better particulars of the claim and quantify the claim. He then proceeded to grant the claim.

In law, when a party decides not to attend a hearing, it loses the right to challenge those proceedings on appeal or on review. In Brake & Clutch v Nyana SC 42/2000, the Supreme Court emphasized that if there is a process to be followed, it cannot just be ignored. A litigant cannot just ignore a notice of hearing and decide not to attend.

Employees should attend disciplinary proceedings if not he/she waives the right to be heard. In Reckif & Colman v CWIU & OTHERS (1991) 12 ICJ 806 (LAC) the Court ruled that under normal circumstances an employee would have to attend a disciplinary hearing and if he refuses to do so, he could hardly allege that the proceedings and outcome of the proceedings were unfair or amounted to an unfair Labour Practice. In our jurisdiction, the Courts have also confirmed this reasoning that a party and its legal practitioners take a calculated risk that the matter would proceed without them. They decline an opportunity to put forward their defenses. They waive their rights. See Dombodzvuku v CMED (Pvt) Ltd SC 31/12.

The employer cannot seek to challenge proceedings that it snubbed. This has become a trite principle of law that a party who fails to attend a hearing does so at their own peril, and is precluded from later complaining about the outcome. See also Foschine Group v Maidi and others (2010) 31 ILJ 178 (LAC).

As indicated earlier, this position by the South African Labour Court has also been held to be the position of law in Zimbabwe. See Zvishavane v Ndlovu SC 40/06 and Red Star Wholesalers V Mutamba SC 142/04.

While it is true that the cases almost always dealt with an employee or employees refusing to or neglecting to attend hearings, the same consequences should visit any litigant who ignores proceedings after receiving due notice. They should be taken to have waived their rights to be heard.

The applicant ignored the notice of set down for 15 November 2022 and did not attend. Thereafter, the employees need not have served it with the details of the claim as requested in their default by the 1st respondent. But the employees still served the applicant with the details of their claims but the applicant ignored the quantified claims. The applicant failed to attend and a default decision was issued after the 1st respondent had sought and gotten clarifications and quantified claims.

I therefore find no merit in the application for review and in the result, the following order is made.

Order:

The application is without merit and it be and is hereby dismissed with costs.