Teria Saidi v Escapades (Private) Limited

### Preamble
IN THE LABOUR COURT of ZIMBABWE
JUDGMENT NO LC/H/780/2014
HARARE, 23 OCTOBER 2014 &
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/780/2014

HARARE, 23 OCTOBER 2014 &		    CASE NO LC/H/APP/41/2014

21ST NOVEMBER 2014

In the matter between:

TERIA SAIDI								APPLICANT

Versus

ESCAPADES (PRIVATE) LIMITED					RESPONDENT

Before The Honourable L Kudya	:	Judge

The Applicant in Person

For the Respondent	Miss L Shambamuto  (Legal Practitioner)

KUDYA J:

This is an application for the rescission of a default judgment granted by this court on 26 March 2014 when the applicant allegedly defaulted court when her appeal against her dismissal from employment had been set down for hearing.

The background to the matter is that the applicant was charged by the respondent employer in terms of its code of conduct where she was alleged to have fraudulently obtained sick leave to the detriment of the employer’s operations.

Following a disciplinary hearing into her matter she was found guilty and dismissed from employment. Aggrieved by the dismissal she appealed to the Labour Court through her representative from a workers union. The appeal was set down for hearing and the notice of set down served on her representatives. However on the date of the hearing she defaulted leading the court to dismiss her appeal in her default of appearance and also on the basis that on the face of the appeal it was not a merited appeal.

Upon realising that her appeal had been dismissed in default the applicant filed the instant court application where she is seeking a reversal of the default judgment and praying that her appeal be heard on the merits.

The bulk of the facts are common cause with the main point of diversion being on whether indeed the applicant was in wilful default and whether she has a good case on the merits. In her rescission application, the applicant maintains that she was not in wilful default since she got to know of the set down on the date of the hearing and by the time she got to the court parties were already in the judge’s chambers where the default judgment was granted at 9 30 am per notes in the record.

The applicant maintains that the delay in notification of the set down was a result of her fallout with her representatives which explains why she has had to mount the instant application in person. She also argues that she was ill at the time of grant of sick leave and she genuinely believed that the nurse who granted her the sick leave had the mandate to do so. To that end she maintains that she did not commit any fraud whatsoever as argued by the respondent.

On the other hand, the respondent argues that applicant was in wilful default and that her representative’s sins have to be revisited upon her if it is true that they failed to inform her timeously of the set down date. Further to that, the respondent maintains that, the application was not a good case on appeal since the grounds of appeal are inelegantly  crafted and made reference to her having been convicted of a criminal offence which is not the correct position.

The respondent also argues that even at the outset the applicant’s application is bad at law as the court which granted the default order was functus officio by indicating that it had disposed of the matter on the merits thus closing the door for a rescission application for the applicant. In the main it argues that both from a preliminary perspective and from the merits perspective the application is ill founded and should be dismissed with costs on a higher scale as in its view it is an an abuse of court process.

The respondent also argues that the application is totally defective for want of compliance with the rules of court viz the fact that it was not made in the proper court application set up as provided for by the rules.

The applicant on the other hand maintains that she has a good case notwithstanding the legal niceties about procedure and format which the respondent has raised. She consequently prays that her application be allowed and that her appeal be heard on the merits.

For clarity of record the points in limine will be disposed of first.

Whether judgment was default judgment and whether the court was functus officio

A reading of the judgment makes reference to the applicant’s physical default of appearance and that on the merits the appeal was not plausible thus creating the impression that the court effectively dealt with the matter on the merits thus becoming  functus officio  after pronouncement of the judgment.

The law is now settled vis the issue of default judgments and stages at which an appeal can lie against such a judgment. The case of Redstar Wholesaler v Mutamba SC 40/04 conclusively ruled that any decision given by the court in default of appearance by a party or in default of compliance with the rules is itself a default judgment notwithstanding the fact that the court handing it down will have delved into the merits of the case.

To that extent such a judgment renders itself susceptible to a rescission application in its respect. Applying this settled law to the facts of the instant case it is clear that notwithstanding the court’s mention that it had considered merits of the appeal the judgment remained for all intents and purposes a default judgment. To that extent the instant application is well placed and can be entertained as such. This point thus lacking in merit should fail.

Invalidity of court application

The form in which pleadings shall be filed with Labour Court is clearly outlined in the rules of court. Since a rescission application by the mention of it as an application it therefore follows that it has to adhere to the format taken by court applications as per the rules. This being as it may Rule 26 however allows the court the discretion to condone non-compliance with the rules where bookish and slavishadherence to same would result in an injustice in the matter. In the instant matter it is clear that the applicant had union representation which could not be equated to formal legal representation hence the failure to put in her application in the strict legal sense set out by the rules should be condoned so that ends of justice can be achieved. In the result the court is persuaded that the issue about the forms being excusable by the court has no merit and it should also fail.

Merits of the rescission application

The law relating to such applications deserves no restatement save to repeat that the success or failure of same is on the strength of the excuse for the default and the potential merits of the main case.

Reason for default

As stated earlier the facts are heavily contested vis the default with the applicant saying came and was told to wait only to discover that default judgment had already been entered.   On the other hand, the respondent is adamant that by virtue of the service of the notice on the union which was the applicant’s address of service thus the confusion between the applicant and her representative cannot be held to be a good excuse to grant the rescission.

It need be noted that judging from the time when judgment was entered which is thirty minutes from the scheduled time of take-off of the matter the applicant’s story could be plausible that she found proceedings in session by which time her fate had already been sealed by the default judgment.

From a factual perspective to determine whether indeed her stay is true or false would entail calling the court officers who she says told her to wait etc and that in the court’s view would not serve any meaningful purpose. Ideally her representatives should have deposed to the fact that they caused the dismissal of her appeal by the lack of diligence and the inelegantly crafted grounds, as well as and delaying telling her about the set down date timeously. As already noted and not contested there was a fall out between the applicant and her representatives hence to demand evidence from them to support her cause would be an exercise in futility. To that extent, on a balance of probability the reasons for the default are acceptable and should avail the applicant.

Merits of the Main Appeal

The main attack on the matter levelled by the respondent in this respect as borne out by the elaborate cases cited in the matter is that the appeal grounds were irregularly crafted and that there was a document from the nurse confessing that she granted sick leave without the doctor’s blessing.

A reading of the appeals committee’s decision which would be the last level before Labour Court show that there is nothing to demonstrate clearly how the applicant’s guilt was founded. There is no record that the nurse gave evidence and was tested by cross-examination at the shop floor level that is at the disciplinary hearing at the first level at the respondent’s. To that extent it is questionable how the guilt was arrived at.  It would be irregular for the court to block the door for the applicant to have the full facts of the matter canvassed to show whether indeed the verdict and penalty were well placed. To that extent there is merit in the application on the merits. In the ultimate the rescission application is well placed to the extent explained above and it should succeed.

IT IS ORDERED THAT

The application for rescission of default judgment of 26 March 2014 being with merit it be and is hereby allowed with each party bearing own costs. The default judgment is set aside and in its place the Registrar is instructed to set down the main appeal on the merits in liaison with the parties concerned.

Matsikidze & Mucheche, respondent’s legal practitioners