Mupfuri (Pvt) Ltd v Peter Makanda

IN THE LABOUR COURT OF ZIMBABWE              JUDGMENT NO. LC/H/357/2013
HELD AT HARARE ON 18th JULY, 2013             CASE NO. LC/ H/134/2012
In the matter between



MUPFURI (PVT) LTD                                             – Appellant
And

PETER MAKANDA                                             –   Respondent



Before The Honourable L. Kudya, President
For Appellant      - Mr P. Jonhera (Legal Practitioner)
For Respondent     - In Person)


KUDYA, L.

      This is an appeal against the decision of the arbitrator who upheld the

now Respondent’s claim of unfair dismissal by the Appellant Company.



      The facts of the matter are that: The Respondent who had been in

Appellant’s employ approached the labour officers with his claim of unfair

dismissal by the Appellant Company, which matter ended up at arbitration.



  On the date of arbitration, the Appellant Company or its legal representatives

did not attend hence the arbitrator dealt with the matter in its default. In his

opening statements in the arbitral award, the arbitrator pointed out that he had

heard the matter in default of the Appellant’s appearance because Appellant

had been served but chose not to attend the proceedings.



      When the Appellant became aware of the arbitral award, it lodged the

instant appeal arguing among other things that its right to be heard had been
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compromised by the matter being dealt with in its absence . It also maintained

that, it was never served with the notification to attend the hearing despite the

fact that its legal practitioners of record had for all intents and purposes been

representing it
                                             JUDGMENT NO. LC/H/357/2013



     It maintained that such denial of audience constituted a point of law in

terms of section 98 (10) of the Labour Act Chapter 28:01and such denial entitled

it to the relief which it was seeking .It also argued that, on the merits, the

appeal court has

to find that the Respondent voluntarily resigned hence was not entitled to

reinstatement or any damages which he claimed.



   Respondent on the other hand, opposed the appeal. He maintained in limine

that, the appeal was improperly before the court in that the appellant had used

the wrong procedure to seek redress. In essence he maintained that, since the

Appellant argued that the judgment had been granted in its default there was

therefore no appeal which lay on it. If it had been prejudiced as it argued, its

remedy lay in approaching the arbitrator for the rescission of his judgment. In

the alternative he argued that the appeal had no merits since the arbitrator

correctly found that he was unfairly dismissed and thus entitled to

reinstatement or damages.



   On the date of the hearing of the appeal the Appellant drew the court’s

attention to the fact that it had filed with the court an application for the

condonation of its late filing of the heads of argument in the main matter. The

court therefore decided to dispose of that application first before delving into

the merits of the appeal.
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      The factors to be considered in condonation applications are aptly set out

in the case of Jenson vs Cavalos 19931) ZLR 216 S and that of

T.Mazvimbakupa vs City of Harare HH 92/05

These are couched in the following words:

      “In determining whether or not, in a given case good cause for condonation has been shown,
      the following factors must be considered

      a. degree of non-compliance with the rules




                                                        JUDGMENT NO. LC/H/357/2013

      b.the explanation thereof

      c. the prospects of success on the merits

      d. the importance of the case

      e. the degree of prejudice to the respondent

      f. the convenience to the court, and

      g.the avoidance of unnecessary delay”


        Applying the above principles to the instant case, the Appellant

submitted in the founding affidavit deposed to by its Counsel and also in the

oral submissions before this court that, its reason for failure to file the heads

was because of the lawyers’ failure to interpret the rules of court relating to the

filing of such heads.

       It however maintained that, it had prospects of success on appeal as it

verily believed that the Respondent had not been unfairly dismissed. The court

observed that the cumulative effect of the reason for the non -compliance

together with the desire to avoid dismissing the matter on technical grounds, it


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was in the interests of justice that the condonation be allowed so that the

matter could be heard on the merits thus bringing finality to the issues

complained about.

         The Respondent did not meaningfully challenge the condonation

application presumably due to lack of appreciation of what the law provides for

since he was a self –actor. The court however took the extra mile and explained

to him what the Appellant had to place before the court to satisfy it that

condonation was in the interests of justice. That notwithstanding, it was clear

that there was no meaningful challenge to the application and the interests of

justice favoured the conclusion of the matter on the merits. The court thus

allowed the application of condonation of late filling of the heads to stand.

   Having ruled that the application for condonation had to stand the court

moved next to determine the main appeal .As earlier stated, the Respondent in

his response raised a point in limine whose determination the court felt was

decisive. Upholding it

                                              JUDGMENT NO. LC/H/357/2013


meant that there would be no point in going to the finer merits of the appeal ,

whereas its dismissal had the same net effect that the parties would have to go

back to the arbitrator on the issues in question.

      When the parties made their submissions, it was abundantly clear that,

apart from the Respondent’s mere say so that the Appellants were served with

the notice to attend the hearing at arbitration; there was nothing on the record

which the court could rely on to show that indeed the Appellant deliberately

missed the hearing at the arbitrator.




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   The arbitrator’s mere say so in the award that ,the Appellant did not attend

despite service could not assist the court much as there was no return of

service to demonstrate that indeed Appellant had been invited but chose not to

attend at arbitration. To that extent, it was clear that, the award which was

made by the arbitrator was a default award.

   The law is clear that one can- not appeal against a default award. See case of

Christopher Zvinavashe vs Nobuhle Ndlovu SC 40 /06 where Gwaunza; JA

stated the following

      “---------------a default judgment can only be set aside by a successful application for
      rescission of the judgment under the rules of the court. The application must be made by the
      defaulting party     himself    ,as indicated     by the expression “purging his default”
      -----------------------the consideration by the judge in the court aquo of the merits of the case
      , and the giving of his reasons for judgment , therefore had no effect on the status of the
      judgment given , which remained that of a default judgment”

  Applying the above reasoning to the point in limine raised by the Respondent,

this court is satisfied that the point was well placed to the extent that the

appeal is indeed improperly before it and has to be dismissed on this basis

alone .




                                                        JUDGMENT NO. LC/H/357/2013


IT IS THEREFORE ORDERED THAT

   1. The application for condonation of the late filing of heads of argument by

      the Appellant being with merit be and is hereby upheld.




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2.   The point in limine raised by the Respondent on the merits of the appeal

     be and is hereby upheld.

3. The appeal therefore          being improperly before the court for want of

     compliance with the rules of court be and hereby dismissed so that the

     Appellant can utilize the correct procedure to have the arbitral award

     given in its default set aside .

4. No order as to costs




L. KUDYA ---------------------

PRESIDENT – LABOUR COURT

Wintertons Legal Practitioners – Appellant’s Legal Practitioners




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