Mwenje Ultimate Energy Solutions v Zvikomborero Makiseni

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/217/24
HARARE 12 MARCH ,2024
CASE NO. LC/H/12/24
AND 16 MAY, 2024
In the matter between: -
MWENJE ULTIMATE ENERGY SOLUTIONS
Appellant
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THE LABOUR COURT OF ZIMBABWE
HARARE 12 MARCH ,2024
AND 16 MAY, 2024

In the matter between: -

MWENJE ULTIMATE ENERGY SOLUTIONS
Appellant

Versus

ZVIKOMBORERO MAKISENI
Respondent

Before the Honourable L. Hove, Judge:

For Appellant : Mr E. Mandewere
For Respondent : Ms .N. Matongwana

On 5 December 2023 this Court issued an order striking out the respondents opposing papers and ordered that the appeal should proceed as an unopposed matter. Following that order, the appeal was subsequently allowed and the decision of the designated agent which had been appealed against was set aside. The appellant was to be reinstated or paid damages in lieu of reinstatement. This subsequent order was issued on 6 December 2023. The then responded now seeks to challenge the order of the 6th of December2023 in this application for condonation and rescission of judgment.

The applications are opposed. At the hearing of the applications, both parties raised preliminary issues.

Applicants preliminary issue

It was submitted that the respondent’s affidavit is improper as it failed to allege that the deponent had personal knowledge of the contents of his affidavit.

Respondents preliminary issues

The respondent argued in turn that the application for rescission was not proper. The applicant could not seek rescission of a judgment issued under these circumstances. It was submitted that since both parties had appeared before the court and the court had ordered that the matter should proceed as unopposed, the resultant order was not an order in default. If applicant had been aggrieved by the striking out of its opposing papers it should have appealed against that initial order.

Secondly, it was argued that the applicant could not properly file an application for rescission of a default order combined with an application for condonation. The rules do not provide for a dual application.


Court’s analysis of the applicant’s preliminary point

The applicant’s preliminary point was premised on the authority of **Bubye Minerals (Pvt) Ltd and Athlone Investments (Pvt) Ltd v Rani International Ltd SC 60/06** which found that the evidence on the founding affidavit of the applicant should be based on personal knowledge and not hearsay. If it is not based on personal knowledge but on hearsay the effect of this is that there is no proper affidavit founding the application and therefore no valid application before the Court. In this case it is the respondent’s affidavit which has not alleged that the deponent has personal knowledge and it is argued that the affidavit is improper.

It was argued that a lack of personal knowledge on the part of a deponent to an affidavit means that the evidence adduced in such an affidavit would be hearsay. Hearsay evidence is not admissible in other Courts of law, but in the Labour Court the position is different. Rules 12 (2) of the Labour Court Rules, 2017 provide that;

“The Court may, so far as appear to it appropriate, avoid formality in its proceedings and may, wear circumstances warrant it, depart from any enactment or rule of law relating to the admissibility of evidence in proceedings before Courts of law generally”

It is therefore clear that in the Labour Court, hearsay evidence can be admissible.

The Court also considered that it is a trite position of law that labour matters should not be decided on the basis of legal technicalities. The Court is of the view that it is necessary to avoid a strict position of law that bars hearsay evidence, when rules relating to the admissibility of evidence can allow hearsay evidence.

It is therefore in the interest of justice that the Court will find that the affidavit by the respondent is proper and dismiss the preliminary point. It is also in the interest of justice that the Court will allow in terms of rule 32, a departure from the rules which require that a notice of response be filed and not a notice of opposition.

Has therefore no merits in the applicant’s preliminary point.

Analysis of the respondent’s preliminary points

In our Courts, the filing of composite applications has been found to be acceptable even though this approach is not provided for in the rules. In the case of **Environmental Management Agency and Director General, Environmental Management Agency V Angel Hill Mining Co (pvt) Ltd HH 706/21** it was stated that;

“The justification of such an application (dual application) is set out as for convenience, instead of making two applications, it would save the Court and the litigants time and resources. The other reason is to achieve justice between the parties without undue delay”

There is therefore no merit in this preliminary point.

The next preliminary point is also one without merit. The courts have regularly found that in cases where matters are decided on an unopposed basis, the resultant decisions are default decisions. An application for rescission can therefore be properly made. The decisions would have been made in the absence of the other side and in terms of rule 29 as read with rule 40 an application for rescission can properly be made.

It is my finding therefore that all the preliminary points raised by the parties are without merit. The Court will proceed to decide the merits of the application.

Application for condonation

As the background of this case can reveal, the applicant initially filed a notice of response in time. That notice of response was struck off by the Court on the basis that the deponent to the affidavit had not filed any authority to represent the then respondent. The applicant is now seeking condonation and extension of time to allow it to file a valid notice of response.

In the case of Forestry Commission v Moyo 1997 (1) ZLR 254 The Court set out the requirements which must be considered in applications of this nature. These may include,

1. That there is a reasonable explanation for the delay and length of delay.
2. That they are good prospects of success should the application succeed.
3. Possible prejudice to the other party should the application be granted.
4. Bona fides of the application.

The bona fides of the application

That the application is bonafide is evident. The applicant had always wanted to defend the appeal and had acted timeously in taking steps to defend its position. Their failure to file authority to represent the applicant is a failure that the Court is prepared to condone and allow the filing of the authority. This is so because of the trite position of law that labor disputes should not be decided on the basis of legal technicalities but such technicalities should be put right. See Dalny Mine v Banda & SC 39/99 and Edmore Mapondera and 55 ors v Freda Rebecca Goldmine Holdings Ltd SC 81/22.

Explanation and length of delay

The delay is not inordinate. The application was filed on the 9th of January 2024. The default order had been issued on the 6th December 2023. The applicant therefore filed this application within a period of one month. The delay is not inordinate under the circumstances of this case. The reason for the delay was that the applicant’s opposing papers had been struck out due to a failure to produce the authority to represent a Juristic person, the applicant. In the interest of Justice, the court finds that the reason for the delay is reasonable.

Possible prejudice to the other side

There is no prejudice that is likely to be suffered by the other side. This is so because the other party will still have an opportunity to present its case should this application succeed and the applicant has acted with haste to further its interest. It has always been the position that the applicant wished to oppose the appeal.

Prospects of success

It is a requirement that in order for an application of this nature to succeed, the applicant must show that it is good, or at least reasonable prospects of success on the merits of the case.
 The respondent has argued that the applicant does not have good prospects of success. The respondent argued that the applicant used a wrong code in disciplining the respondent and therefore the disciplinary proceedings were a nullity and applicant does not enjoy any prospect of success.

The applicant states in an answering affidavit that the respondent was properly charged in terms of SI 15/2006. Further it is argued that if he had been wrongly charged, he should have challenged the proceedings during the hearing or filed an application for review.

In considering applicants’ second point, the court considers that the use of a particular instrument can be challenged at any time even on appeal for the first time this is so because of the trite position of law that points of law can be raised at any time even on appeal for the first time.

The issue that should engage the applicant is its first point that is whether or not the wrong code was used?

It has not been disputed that the respondent was not a managerial employee and he ought to have been disciplined in terms of the applicable code of conduct of the relevant industry, that is the national Employment Council for Zimbabwe Energy Industry which was registered on 26th of July 2011. The applicant, however states that the parties had agreed among themselves that SI 15/2006 would apply to them at the time that they entered into the contract of employment.

The registered code of conduct was applicable to the respondent in terms of the Labour Act [chapter 28:01] (the Act) which provides in section 82 as follows;

(1) “where a collective bargaining agreement has been registered it shall –

a) With effect from the date of its publication in terms of section 85, or such other date as may be specified in the agreement, be binding on the parties to the agreement, including all the members of such parties, and all employers, contractors, and their respective employees in the undertaking or industry to which the industry relates;

b) …

c) remain binding until i) it is replaced by a substitute agreement, …

ii) it is terminated by the mutual agreement of the parties there to.

It is clear therefore in terms of law that the applicable instrument was the National Employment Council Code of Conduct for Zimbabwe Energy Industry. The parties could not have lawfully agreed to use an inapplicable National Code where there is a registered code of conduct for the industry. The law also provides that the National Code is not applicable in cases where there are registered codes of conduct. The agreement by the parties to apply the national code (if there was such an agreement) was contrary to the provisions of Section 82 (1) of the Act and therefore unlawful.


The disciplinary proceedings, conducted in terms of a wrong code, were a legal nullity and the applicant has no prospects of success on the merits of the appeal.

No purpose can thus be served by granting an application that has no prospects of success.

In the result the application for condonation must fail on the basis that the applicant has no prospect of success on the merits.

The application for rescission of a default judgment also requires that the applicant show good and sufficient cause for the relief that it seeks. See **Saitis & Co Pvt Ltd V Fenlake Put Ltd 2002 (1) ZLR 378 (H)**

Good and sufficient cause was defined to include the following factors;

I. Reasonableness of the applicant’s explanation for default.
II. The bonafide of the application to rescind the judgment, and
III. The bonafide of the defense on the merit of the case which carries some prospects of success.

See **Stockii v Griffiths 1992 (1) ZLR 172** and the cases cited therein.

The Court is aware that these factors should be considered in conjunction with one another and not individually. These factors have been considered in this judgment in relation to the application for condonation since they are essentially the same. The Court has found that the disciplinary proceedings have not been conducted in terms of the applicable code they are a nullity and not even the other considerations can save the application. The absence of good prospects of success in the circumstances of this case are fatal to the applicant’s case.

In the result the following order is made;

**Order**

1. The preliminary points raised by both parties, being without merit, be and are hereby dismissed.
2. The two applications for condonation and for recession of a default order are without merit and are hereby dismissed.
3. Each party bears its own cost.
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