Pick and Pay Supermarkets v Taurai Kanoma

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/169/24
HARARE 30 JANUARY,2024
CASE NO. LC/H/849/23
AND 15 APRIL, 2024
In the matter between: -
PICK AND PAY SUPERMARKETS
Applicant
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THE LABOUR COURT OF ZIMBABWE
HARARE 30 JANUARY, 2024
AND 15 APRIL, 2024

In the matter between: -

PICK AND PAY SUPERMARKETS
Applicant
Versus
TAURAI KANOMA
Respondent

Before the Honourable L. Hove, Judge:

For applicant : T. R. Muzonzini
For respondent: P.Tichaoa

On 25 January 2024, the parties appeared before me in an application for rescission of a default judgement. I dismissed the application. The applicant requested that I give reasons for my order and these are they.

Background facts

The applicant employed the respondent before preferring charges of misconduct against him. He was charged and found guilty and dismissed from employment. The respondent was aggrieved with the outcome of the disciplinary proceedings the respondent noted an appeal to the labour court. This was on 27 April 2023. The notice of appeal was served on the applicant’s office on 4 May 2023.

The applicant was later served with a default order after nothing had been done to oppose the appeal by themselves or their lawyers. The applicant in these proceedings seek to have the default order set aside on the basis that they were not in willful default. It was argued that the applicant did not have knowledge of the appeal proceedings against it because when the notice of appeal was served on their legal practitioners of choice, a student on attachment mislaid the notice of appeal. It is argued that the lawyers were not aware of the notice of appeal and hence they did not act to defend the appeal. It was also argued that the email address used in filing the notice of appeal was incorrect and as a result the IECMS alert could not have reached the applicant.

The applicant was thus not aware of the notice of appeal and neither was he aware of the Court processes that followed the filing of the notice of appeal and hence its failure to file its opposing papers.


The applicant further argued that he had good prospects of success on the merits and the grounds of appeal have no merit. The applicant prayed for the setting aside of the default order.

The application was opposed.

The law

This area of law is fairly settled in our jurisdiction. The case of Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd 2002 (1) ZLR 378 (H) establishes the test applicable in these applications. The Court stated that;

“the test for rescission of judgment whether in the High Court or in the Magistrate Court is but one; the applicant has to establish a good and sufficient cause or simply put sufficient cause for the relief that he seeks”

The definition for good and sufficient cause was stated by the Supreme Court in the case of Golden Reef Mining (Private) Limited & anor v Mnjiya Consulting Engineers (Private) Limited SC 55/16 to mean that a party seeking relief in the form of rescission must present a reasonable and acceptable explanation for his default. The requirements were as set by Gubbay CJ (as he was then) in Stockil v Griffiths 1992 (1) ZLR 172 (5) where the Court held that;

“the factors which a Court will take into account in determining whether an applicant for rescission has discharged the onus of proving ‘good and sufficient cause’, as required to be shown … are well established. They have been discussed and applied in many decided cases in this country. See for instance Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC 16/86 (not reported); Roland E & anor v McDonnel 1986 (2) ZLR 216 (5) at ZZE-H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (5) at 211 C-F. They are; (i) the reasonableness of the applicant’s explanation for the default; and (ii) the bona fides of the application to rescind the judgment; and (iii) the bona fides of the defense on the merits of the case which carries some prospects of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole”

That the above position also obtains in the Labour Court is trite. Good and sufficient cause must be shown in order for the Court to grant an application for rescission. The applicant must present a reasonable and acceptable explanation for the default, and must show that it has a bona fide defense which prima facie carries good prospects of success. See, Songore case (supra).

The reasons for the default

The applicant’s reasons for the default is that when the notice of appeal was served at their legal practitioner’s offices, it was received by a student on attachment who was manning the front desk. This intern received the notice of appeal and misplaced it. As a result, the notice of appeal was not forwarded to relevant persons in the law firm who could have taken the necessary steps to protect their client’s interest.

The Court held the view that this explanation or the reasons advanced for the default are neither reasonable nor acceptable. The applicant’s chosen legal practitioners, knowing how important it is to receive and action claims brought against its clients, placed an intern on its front desk. This intern was apparently left unsupervised because it is accepted that she received the notice of appeal and misplaced it. They had the responsibility to ensure that process received by themselves is managed in a reasonable manner. The intern was not schooled on how to manage court process. If she had been schooled on how to manage Court process, before being given the responsibility of receiving court process, she certainly was not supervised or monitored. She appears to have been left to her own devices as the notice of appeal was not actioned in a reasonable manner. The applicant’s chosen legal practitioners professed ignorance of the process and did not know what happened to Court process which was served on themselves. This manner of handling Court process is highly negligent. The lawyers left the intern unsupervised at their front desk in a manner that displays recklessness as to the consequences of leaving an unsupervised intern manning court process.

The legal practitioners of choice knew or ought to have known that court process which needed urgent attention would most likely be served on them and placing an unsupervised intern on the front desk was sheer recklessness. This amounts to willful disregard of what could transpire. There was a knowledge of the possible consequences.

The willfulness of a default is seldom if ever clear cut. There is however almost always an element of negligence. The negligence as in casu, can be so gross as to amount to willfulness. See the case of Redstar wholesalers v Mutamba SC 142/04. In the case of Grant v Plumbers P/L 1919 (2) SA 470 Court stated that;

“I am of the opinion that an applicant who claims relief… should comply with the following

(a) He must give a reasonable explanation of his default if it appears that the default was willful or that it was due to gross negligence, the Court should not come to his assistance.”

In casu, the Court is of the view that the default was a result of gross negligence on the part of the applicant’s chosen practitioners. The alleged intern did not file any affidavit to the effect that she had misplaced the notice of appeal.

The allegation that the email address was wrong would not have caused the default had the notice of appeal been received and actioned in a manner that any reasonable legal practitioner could have done. It was therefore the gross the negligence by the applicant’s legal practitioner that resulted in the default. The negligence, in my opinion, is so gross that it amounts to willfulness.

Prospects of success

The Court held the view that on the merits, the applicant did not have good prospects of success. This is so in view of the fact that the applicant found the respondent guilty of an offence which he had not been charged with.

In the case of Nyarumbu v Sandvik Mining and Construction Zimbabwe (Pvt) Ltd SC 31/13 it was held that;

“it is axiomatic in criminal cases as well as in disciplinary proceedings that a person cannot be found guilty of an offense that has not been preferred against him, unless that offense is a competent verdict of the offence originally preferred,”


The respondent was charged with contravening section 4 (b) of the National Code (SI 15/06), that is, willful disobedience to a lawful order.

He was found guilty of contravening section 4 (a) on the National Code of conduct which was “any act or misconduct or omission inconsistent with the fulfillment of the express or implied conditions of his or her contract”

This was incompetent. The respondent had to be made aware of the charge he was facing to enable him to prepare his defense or even his plea effectively.

**Conclusion**

The applicant received, through its lawyer’s, proper service; it must therefore be taken to have had knowledge of the appeal. By placing an unsupervised or unmonitored intern in such a responsible position of manning the front desk, they must also be deemed to have knowledge of the action and its consequences, that is legal consequences. The legal practitioners of choice in casu are one of the oldest law firms in the country with experience in these matters and must be taken to have known the consequences of their actions. Further, and in any event their prospects of success on the merits are poor.

In the result, no good and sufficient cause was demonstrated and in its discretion the Court dismissed the application for rescission.
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