Shepherd Kodha v Zimbabwe Phosphate Industries Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/79/2024
HARARE, 15 FEBRUARY, 2024
CASE NO LC/H/500/23
28 FEBRUARY, 2024
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 15 FEBRUARY, 2024

JUDGMENT NO LC/H/79/2024 CASE NO LC/H/500/23

28 FEBRUARY, 2024

SHEPHERD KODHA	APPLICANT

ZIMBABWE PHOSPHATE INDUSTRIES LTD	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- Ms H. Madzongwe, Attorney

For Respondent	- Ms T. Kachara, Attorney

MUSARIRI, J:

Applicant applied to this Court for rescission of judgment in term of Section 92C (1)(a) of the Labour Act Chapter 28:01 as read with Rule 40 of the Labour Court Rules, 2017. Respondent opposed the application.

Default

On the 9th February 2023 applicant noted an appeal to this Court through his attorney Mawire J.T & Associates. Respondent opposed the appeal. The Court dealt with the preliminary points raised whereupon the matter was set for the main hearing on 20th June 2023. The matter scheduled for an online session on the IECMS platform. When matter heard neither applicant nor his attorney joined the session. As a result a default judgment was entered which dismissed the appeal for want of prosecution.

Explanation

The explanation for the default was set out in the supporting affidavit of Ashton Mufari applicant’s erstwhile attorney thus;

“5.  On 20 June 2023, I arrived in office and prepared for the hearing. At around 0930 hours, I logged into the IECMS with the view to get myself ready for the hearing. Suddenly we had power cuts in our locality and I had to switch on the standby generator which we use as an alternative source of power.

The generator was switched on around 09:55. I logged into the IECMS with a view to attend the hearing. Suddenly I experienced network challenges such that I was unable to access the platform.

I kept on trying to reset the network supply but it did not work. At that time, I then received a call from Mr Mawire who indicated that he had been called by the Registrar and told that the hearing was now on. After the call, I also received a call from the Appellant himself informing me that he had been called by the Registrar and informed that the matter was due for hearing.

After efforts to get internet connectivity up running had failed, I quickly jumped into my car and drove to the Labour Court to get assistance at the Court from Eastlea.”

Mufari stated that on his way to the Labour Court he was informed that the appeal had been dismissed.

Merits

Applicant relied heavily on excerpts from the investigation report which he quoted in his Heads of Argument thus,

“34.5. para 5.0 of the investigation report is very clear, it provides for a ‘root cause analysis.’ The cause of the problem was identified as the system failure. This had nothing to do with the employee, further, the findings go on to say-the area is a public place used as a waiting room for visitors and delivery notes are not locked in. This cannot be attributed to the appellant.

34.7.	5.1 of the investigation report identifies the cause of the problem as system failure- failure to follow invoicing procedure. This cannot be attributed to the employee.”

Analysis

The Court notes Respondent’s valid argument that applicant’s attorney should have at least notified the Registrar and opposing counsel of his difficulties in accessing the IECMS platform before the matter was heard. Going by his word the attorney was acting under pressure and in the process he opted to rush to Court rather than alert the other stakeholders. The application for rescission was made promptly after the default judgment was passed. The bona fides of the application is bolstered by the reliance on the investigation report which seems to exonerate the applicant from blame. I note that respondent has not dealt with the contents of the investigation report as expected in its Heads of Argument. The net result is that applicant has an arguable case on the merits. The Court is guided by precedents such as;

Chihwayi v Atish 2007(2) ZLR 89, 94H-95A where Sandura JA quoted thus

“But it is clear in principle and in long standing practice of our courts two essential elements of ‘sufficient cause’ for rescission of judgment by default are

that the party seeking relief must present a reasonable and acceptable explanation for his default; and

that on the merits such party has a bona fide defence which, prima facie, carries some prospects of success.”

The quoted essential elements are not considered in isolation. They are balanced against each other such that deficits in one may be made up for by the other. Balancing the relevant elements as appear in casu the Court is satisfied that “succient cause” has been shown for rescission of the default judgment.

Wherefore it is ordered that,

The application for rescission of judgment be and is hereby granted;

The default judgment issued by this Court on 21st June 2023 is set aside; and

Costs shall be costs in the cause.

G. MUSARIRI J-U-D-G-E