OK Zimbabwe Limited v Willie Masilo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/122/2021
HARARE, 5 JULY 2021
CASE NO. LC/H/331/20
AND 27 AUGUST 2021
XREF LC/H/205/19
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/122/2021

HARARE, 5 JULY 2021 					CASE NO. LC/H/331/20

AND 27 AUGUST  2021					XREF LC/H/205/19

In the matter between:

OK ZIMBABWE LIMITED					APPLICANT

versus

WILLIE MASILO							RESPONDENT

Before The Honourable Makamure J

For the Applicant			: 	Mrs R. T. L. Matsika (Legal Practitioner)

For the Respondent			: 	Mr T. J. Mafongoya (Legal Practitioner)

MAKAMURE J:

This is an application for leave to appeal judgment LC/H/223/20, a judgment of this court. The respondent has raised two preliminary issues. These are:

(i)	That the judgment was a default judgment and therefore not appealable and that the proper course of action is to apply for rescission and

(ii)	That the application should be heard by a judge in chambers and not in open court. It was argued on behalf of the respondent that the application or leave ought to have been done through a Chamber Book.

In support of his submission on when or before who an application for leave to appeal should be made, Mr Mafongoya referred to Rules 26 and 43 of the Rules of this Court Statutory Instrument 150/17. Mr Mafongoya also referred to authority. One of the authorities Mr Mafongoya referred to is Christopher Sambaza v AL Shams Global BVI Ltd SC 3/2018. (AL Shams Global). Mr Mafongoya submitted that the AL Shams Global case clarifies both the terms “judge” and “court”.

In response Mrs Matsika pointed out that the preliminary issue was not taken in the notice of opposition. Mrs Matsika argued that it is improper for a party to take points in limine in the Heads of Argument when such points were not raised in the pleadings. In support of this argument Mrs Matsika referred the court to the case of Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings SC 24/2018, where the Supreme Court determined that a court should not determine an issue which was not raised in the pleadings. Mrs Matsika argued that a party ought to know what the other party’s pleadings and that it was improper to raise a fresh defence in the Heads of Argument. Further Mrs Matsika argued that while a point of law can be raised at any time, such point of law must be raised in the pleadings and not in Heads of Argument. For this reason Mrs Matsika submitted that the first point in limine must be struck off as it was not properly taken.

Ms Matsika pointed out that s 92F of the Labour Act [Chapter 28:01] which provides for appeals against decisions of the Labour Court, does not distinguish between default judgments and judgments where both parties were present and heard. Further procedures in the Labour Court and High Court are different and therefore one cannot rely on High Court judgments to interpret provisions of the Labour Act. In this respect Mrs Matsika made reference to provisions of s 92 (c) of the Act which provides for rescission of this court’ judgments where one party was absent. In the present matter the other party was not absent.  Mrs Matsika submitted that in the present matter judgment was entered in terms of Rule 29 (b) and therefore not susceptible to rescission.

On the question of the requirements of the rules Mrs Matsika argued that there was nothing in the rules requiring the application for leave to filed in the form of a chamber application. Mrs Matsika further argued that Rules 26, 41 and 43 explicitly provided for applications and had the drafters intended a Rule 43 application to be a chamber application they would have said so. Mrs Matsika submitted hat while Rules of the High Court provided for a distinction between a judge sitting in chambers and the court, there was no such distinction in the Rules of this court. Mrs Matsika cautioned against borrowing from the High Court for the purposes of matters before the Labour Court. In the result Mrs Matsika submitted that the court is not faced with a defective application as submitted on behalf of the respondent. Further all the authorities relied upon by the respondent on the notice or form or notice are irrelevant. Mrs Matsika made reference to Rule 24 of the rules of this court and that it disposes of the point raised.

Mrs Matsika further argued that the court had been detained over technical issues and that sight must not be lost of the fact that the respondent committed a misconduct which he admitted. In the result should a negative finding be made against the applicant this would be against the principle that labour matters should not be decided on the basis of technicalities. By this submission it was not being conceded that there was any irregularity. Mrs Matsika submitted that the preliminary points were improperly taken and should be dismissed. In reply Mr Magongoya argued that a point of law can be raised at any time and referred the court to Goldriva Investemtns v Telone 2013 (1) ZLR 172. Mr Mafongoya submitted that law is not pleaded, it is submitted Mr Mafongoya submitted that judgment can be entered where a party is either physically absent or is in attendance but legally not there. The effect by R 29 (b) is that a party may be physically present but legally not there.

Mr Mafongoya prayed that the preliminary points be upheld as the application for leave to appeal was not properly before the court.

Rule 26 of the Rules of this court provide as follows:

“Heads of Argument.

26 (1) Where an applicant or appellant is to be represented by a legal practitioner or representative at the hearing of the application, appeal or review, the legal practitioner or representative shall –

(a)	within ten days of receiving a notice of response to the application, appeal or review, lodge with the Registrar, heads of argument clearly outlining the submission he or she intends to rely on and setting out the authorities if any, which he or she intends to cite; and

(b)	immediately afterwards deliver a copy of the heads of argument to the respondent and lodge with the Registrar proof of such delivery as required by Rule 11.

(2).	No legal practitioner or representative hall be allowed to make submissions in a matter without hearing filed heads of argument:-

Provided that a party who has been barred may-

(a)	make a chamber application to remove the bar, and the Judge or Court may allow the application on such terms as to costs and otherwise as he or she thinks fit;

or

(b)	make an oral application to remove the bar at the hearing of the application or appeal.

(3).	Where a respondent is to be represented by a legal practitioner or a representative at the hearing of the application, appeal or review, the legal practitioner or representative shall –

(a)	lodge with the Registrar heads of argument clearly outlining submissions he or she intends to rely on and setting out the authorities, if any, which he or she intends to cite within ten days of receiving a copy of the heads of argument in terms of subrule (1) (b), or at the time when the notice of response is filed with the Registrar in terms of rule 14 (2) (b) (ii), 19 (2) (b) (ii) or 20 92) (b) (ii), if the applicant or appellant is not represented by a legal practitioner or representative; and

(b)	immediately afterwards, deliver a copy of the heads of argument to the applicant or appellant and lodge with the Registrar proof of such delivery.

(4).	Where heads of argument that are required to be lodged in terms of subrule 93) are lodged on behalf of the respondent, within the period or at the time specified in those provisions –

(a).	the Registrar shall never the less set down the application, appeal or review for hearing in terms of rule 28;

(b).	subject to subrule (2), the defaulting party shall be barred and the court may according to the nature of the case, or as the justice of the case requires –

(i).	either a default judgment against the defaulting party; or

(5).	Where an applicant, appellant or respondent is not to be represented at the hearing by a legal practitioner or representative, he or she may, lodge heads of argument with the Registrar, in which event he or she shall comply with subrule (1) or (4) as the case may be.

(6).	After the heads of argument have been lodged with the Registrar, no further papers may be lodged without the leave of the court.”

Rule 29 provides for “Where party fails to file notice of response as follows:

“29. Where the respondent fails to file a n notice of response within the period specified in rules 14, 19 or 20 and a party fails to comply, the matter shall nevertheless be set down in terms of Rule 28 and if, on the day of hearing, the defaulting party –

(a)	…

(b)	does not appear or fails, to show good cause why he or she did not file a response, shall

be barred, and the court may, according to the nature of the case or as the justice of the case requires –

(i)	enter a default judgment against the defaulting party; or

(ii)	proceed to determine the matter.”

In judgment LC/H/233/2020 the respondent filed a defective notice of response. The respondent could have corrected the anomaly but did not. The appellant in the result prayed that the notice of response be struck out and the matter be treated as unopposed.

The court proceeded to treat the matter as unopposed. Judgment was thereafter granted in favour of the respondent.

The section 92 C of the Act provides as follows;

“(1)	Subject to this section the Labour Court may, on an application, rescind on vary

any determination or order-

(a)	which it made in the absence of the party against whom it was made; or

(b)	which the Labour Court is satisfied is void or was obtained by fraud or mistake

common to the parties; or

(c)	in order to correct any patent error.

(2)	The Labour Court shall not exercise the powers confined by subsection (1) –

(a)	except upon notice to all the parties affected by the determination or order

concerned; or

(b)	in respect of any determination, or order which is the subject of a pending appeal or review.”

Mrs Matsika submitted that section 92 F of the Act which provides for appeals to the Supreme Court of the Act does not distinguish between default judgments and where both parties to the dispute where present. Further Mrs Matsika submitted that S 92 C of the Act provides for where one party was absent. Mrs Matsika proceeded to submit that judgment was entered in terms of Rule 29 and was not susceptible to rescission.

The judgment was entered in terms of Rule 29 (b). It was treated an unopposed matter. The question of whether or not the Act distinguishes between types of judgments passed by this court will for the purposes of the present matter not be considered.

As already noted, the matter which in now the subject of the preliminary issue was treated as unopposed and not as a matter heard in the absence of the party against whom it was made. The remedies provided by the Act envisage a situation where the other party was in default or where there was a mistake or fraud. In the present matter, the court treated the matter as unopposed and proceeded to determine the matter. This was so because the respondent did not show good cause why the error on the papers was not rectified. It was not a default judgment as envisaged by the Act.  In the result the first preliminary issue fails.

The second preliminary point was that the application ought to have been heard or considered in chambers. Applications for leave to appeal are provided for in Rule 43 as follows:

“43 (1)	An application in terms of section 92 F (2) of the Act seeking leave to appeal from any decision of the Court shall be made to the Judge of the Court who made the decision or in his or her absence, from any, other Judge, within twenty-one days from the date of that decision.

(2).	An application in terms of this rule shall be accompanied by a draft of the intended Notice of appeal to the Supreme Court.”

Rule 43 is clear and needs no interpretation. “Judge” in terms of Rule 3 of the Labour Court Rules means a judge of the court referred to in section 172 (1) of the Constitution.

The Court was referred to (Al Shams) for the definition of “Judge” and Court. In the AI Shams Global case, the Supreme Court stated that:

“It is therefore clear that an appeal from the High Court should be against a judgment of the High Court. Order 1 r 3 of the High Court Rules defines the words “Court” and “Judge” as follows:

“Court means the general decision of the High Court”

“Judge” means a judge of the High Court, sitting otherwise than in open court.”

The word “judge” only applies when a judge is not sitting in open court. It is only applied to a judge sitting in chambers.”

The Supreme Court in AI Shams Global was dealing with High Court Rules and not Labour Court Rules. I think it is appropriate  that when issues pertain to matters before the Labour Court, the Labour Court Rules be applied. Where guidance is sought for purposes of assisting the court, from rules of other courts, this should be made clear. As pointed out by Mrs Matsika for the respondent, it is dangerous to borrow from the High Court Rules where the Labour Court has got its own rules.

It has been the practice of this court to hear applications either in chambers, or in court. This is so because in open court the proceedings are recorded mechanically and also by the Judge. This serves to ensure that the addresses by parties are captured in full. Further given the present situation where the Covid 19 pandemic requires social distancing, it was the court’s view that the application be heard in open court and not in chambers. The basic requirements are set out in Rule 43. In the result I find no merit in this preliminary issue.

In view of the foregoing it is ordered that the preliminary issues be and are hereby discharged.

The main application should be heard as soon as practicable.

Winter tons, Applicant’s Legal Practitioners

Mafongoya & Matapura Law Practice, Respondent’s Legal Practitioners