Samuel Chaka v Small Enterprise Development Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/685/2014
HARARE, 29 SEPTEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/685/2014

HARARE, 29 SEPTEMBER 2014		           		      CASE NO. LC/H/784/13

AND 10 OCTOBER 2014

In the matter between:-

SAMUEL CHAKA			 				Applicant

And

SMALL ENTERPRISE DEVELOPMENT				Respondent

CORPORATION

Before The Honorable F.C. Maxwell, Judge

For Applicant		Mr. R. J. Gumbo (Legal Practitioner)

For Respondent		Mr. F. Piki (Legal Practitioner)

MAXWELL, J:

Applicant was employed by the Respondent.  He was charged for misconduct and was found guilty and was dismissed from employment.  On 2 October 2013 Applicant noted an appeal in this Court.  The appeal was opposed on 15 October 2013 Applicant failed to file heads of argument within the stipulated time.  Respondent applied for and was granted an order in terms of Rule 19 3 (a) of the Labour Court Rules SI 59/06.

On 24 June 2014 Applicant filed an application for rescission of default judgment which is the subject of this judgment.  In the founding affidavit Applicant narrates the background of the case from the time he was arraigned before a disciplinary committee.  On the merits of the matter he submits that the Labour Court is a court of equity which seeks to achieve justice not through technicalities but through fair and equitable processes.  He further submitted that the dispute and issues between the parties are such that they should not be decided on technicalities if equity has to prevail.  He also submitted that it would be fair and proper that the appeal be finalized on merits and Respondent will not be prejudiced if the matter is decided after full argument.  He states categorically that

“Infact equity demands just that.”

Applicant also states that he stands to suffer irreparable harm if the judgment obtained in default is not rescinded.  Applicant further attached a notice of opposition filed in an application for interim relief.

Respondent opposed the application on the basis that the Applicant has adopted a wrong procedure as the order granted by the Court is not a default judgment.  It further stated that even if it is a default judgment the Applicant has not satisfied all the requirements for a default judgment to be rescinded.

At the hearing of the matter I dismissed the point in limine that the Applicant had used a wrong procedure.  It is trite that proceedings in terms of Rule 19 (3) (a) are proceedings done in the absence of the other party.  The determination thereof is in essence a default judgment.  It is an established legal position that the proper procedure for undoing a default judgment is to seek rescission thereof in terms of Section 92 C of the Labour Act [Chapter 28:01] and Rule 33 of the Labour Court Rules SI 59/06.

The above principle is stated in the case of Redstar Wholesalers v Livingstone Mutomba SC 142/02.

Turning to the merits of the matter, for an application of this nature to succeed it is trite that good and sufficient cause for the default has to be established.  In doing so the following factors have to be considered.

the length of the delay in applying for rescission.

the reason for the default.

the prospects of success.

the balance of convenience.

See Redstar Wholesalers v Livingstone Mutomba (Supra)

I am satisfied that there was no inordinate delay in applying for rescission.  The Respondent has indicated that it will not take issue with the reason for the default but is of the view that there are no prospects of success and therefore the balance of convenience favours the dismissal of the application.  Respondent referred the court to the similar case of Stanlous Makusha v Small Enterprise Development Corporation LC/H/468/14.  In that case this court upheld a point in limine that the Appellant was improperly before the court since he did not exhaust local remedies provided for in Respondent’s Code of Conduct.  Applicant argued that Respondent had not strictly adhered to the Code of Conduct and cannot be heard to clamour for compliance with it.  It was further submitted that it is a right of a litigant to approach the Labour Court in terms of section 89 of the Labour Act [Chapter 28:01].  I am not convinced that there is a basis to depart from the position reflected in the case of Stanslous Makusha v SEDCO (Supra).  In the circumstances there are no reasonable prospects of success on appeal.  The application therefore fails.

Accordingly I order as follows

The application for rescission of default judgment be and is hereby dismissed for lack of merit.

The applicant be and is hereby ordered to pay costs of suit.

MESSRS GUMBO AND ASSOCIATES, Applicant’s legal practitioners

IEG MUSIMBE AND PARTNERS, Respondent’s legal practitioners