Themba Mangadza v Zimbabwe Power Company (Private) Limited & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE, 02 OCTOBER 2025
JUDGMENT No: LC/H/415/25
CASE No: LC/H/929/25
---------


IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE, 02 OCTOBER 2025

JUDGMENT No: LC/H/415/25

CASE No:	LC/H/929/25

AND

In the matter between: -

THEMBA MANGADZA	APPLICANT

AND

ZIMBABWE POWER COMPANY (PRIVATE) LIMITED	1st RESPONDENT AND

ARBITRATOR F.V MAROVANYIKA	2nd RESPONDENT AND

MINISTER OF ENERGY AND POWER DEVELOPMENT	3rd RESPONDENT

AND

ZESA HOLDINGS (PRIVATE) LIMITED	4th RESPONDENT

JUDGMENT

Before the Honourable Mrs Justice Makamure J Before the Honourable Mr Justice Jaravani J Harare, 02 October 2025.

Applicant: In person

For the 1st and 4th Respondents: Mr Basira. For 2nd and 3rd Respondents: No appearance

JARAVANI J:

Opposed Urgent Chamber Application for Rescission of Default Judgment.

BACKGROUND

This is an Urgent Chamber Application for Rescission of a default judgment that was granted against the Applicant by this Court on 22 September 2025 in favour of 1st and 4th Respondents. There was no appearance on behalf of the 2nd and 3rd Respondents. The default judgment was granted in Case No LC/H/ 592/25 of this Court. The default judgment condoned the late filing of a notice of appeal by the 1st and 4th respondents and gave them a grace period of five days to file a notice of appeal-(page 15-16 of the record).

It is common cause that the 1st and 4th respondents have already filed their notice of appeal within the grace period stipulated by the default judgment.

The Urgent Chamber Application was set down for virtual hearing on 22 September 2025 at 10:00hrs. The Court, realised that it could not exercise its powers under section 92C of the Labour Act [Chapter 28:01] (hereinafter ‘the Act’), without notice of the application to all the affected parties. The Court therefore requested the applicant to serve his application upon the Respondents. On the hearing date it appeared that only the 1st and 4th Respondents were served through their legal practitioner. The 1st and 4th Respondents’ legal practitioner had not read all the papers on record by the time of commencement of the hearing so the hearing was adjourned to give the legal practitioner an opportunity to read the papers. The virtual hearing resumed on 22 September 2025 in the afternoon and the parties orally addressed the Court until there were insurmountable connectivity problems on the Court portal. This led the Court to make a Case Management Order in the following terms: -

‘1. The Applicant shall file written submissions onto the IECMS Portal on all his outstanding preliminary issues latest by 09 October 2025.

Thereafter, the Respondents shall file their response to the Applicant’s preliminary issues within five working days from the date of filing of the Applicant’s submissions.

Further thereafter, the Applicant shall file his reply to the Respondents’ response within two working days from the date of filing of the Respondents’ response.

The Court shall proceed to deliver judgment after receipt of the parties’ written submissions on outstanding preliminary issues in terms of paragraph 1-3 above, but in the event that either

party fails to file its submissions in terms of paragraph 1-3 above, the Court shall deliver judgment on the basis of the documents on record at the time of such failure.’

The Applicant only filed his submissions on 14 October 2025 instead of 09 October 2025 stipulated in the Case Management Order. The Court considered the Applicant’s submissions despite the Applicant’s failure to comply with paragraph 1 of the Case Management Order since such submissions are already on record.

PARTIES’ SUBMISSIONS

The 1st and 4th Respondents’ legal practitioner raised two preliminary issues at the virtual hearing namely that the Applicant’s application is not urgent and the Draft Order is defective since it lacks specificity. The Court also brought the issue of mootness to the parties’ attention especially in view of the fact that the 1st and 4th Respondents have since filed the Notice of appeal pursuant to the default judgment which the Applicant seeks to be rescinded. The Applicant also raised several issues in his notice of filing points in limine which was filed of record on 14 October 2025. The Applicant submitted that there is no Board Resolution authorising the legal practitioners to represent the 1st and 4th Respondents; the 1st and 4th Respondents have not paid wasted costs on withdrawal of Case No: LC/H/415/25 of this Court; the Respondents are approaching the Court with dirty hands because they have not complied with two arbitral awards which ordered them to reinstate the Applicant and further hear him and other issues raised by the Applicant in his notice referred to a Notice of appeal which was never before the Court in these proceedings.

The 1st and 4th Respondents submitted that the Applicant’s application is not urgent because he waited from 22 September 2025 when he knew about the default judgment until 01 October 2025 when he filed the present application. The need to act arose when the Applicant knew about the default judgment during the later hours of 22 September 2025 but the Applicant waited only to act on 01 October 2025. This was after knowing that the Respondents have filed their appeal. The Respondents submitted that the Applicant was supposed to act either on 22 or 23 September 2025 in response to the default judgment but he never filed any application. The Respondents also labelled the urgency as self-created. According to the 1st and 4th Respondents the Applicant was supposed to lodge his application for rescission of default judgment soon after knowing about the

default judgment without first exchanging correspondence with the Registrar because the Registrar is an Administrator of the Court. The Respondents prayed for dismissal of the application because it was not urgent.

The Respondents submitted that the Draft Order does not precisely indicate what Order the Court is supposed to grant and there was no application to amend the Draft Order. The 1st and 4th Respondents further argued that the application is now moot because they have already filed their notice of appeal pursuant to the default judgment. The 1st and 4th Respondents further submitted that it is too late for the Applicant to apply for rescission of the default judgment and he should oppose the appeal. The 1st and 4th Respondents submitted that the Applicant should pay costs of suit on a higher scale because he was not honest and candid with the Court when he said he did not receive the link for the virtual court session.

The Applicant conceded that he knew about the default judgment during the late hours of 22 September 2025. He wrote a letter to the Registrar informing her of his predicament that he did not receive the link for the virtual session. He then requested for a rescheduling of the matter for a fresh hearing- (page 56 of the record Annexure ‘H’). He further submitted that the Registrar responded to his letter by acknowledging its contents. The Registrar further informed him that the letter has been placed before the Judge and that the Registrar will communicate with him after receiving the Judge’s response- (page 57 of the record Annexure I). He further submitted that he waited for the Registrar’s response to his letter for three days, that is, from 23 to 26 September 2025 but he got none and that is when he decided to file the present application before the Court on an urgent basis. That was his explanation for urgency. On being asked by the Court about the contents of paragraph 43(g) of his founding affidavit which implies that he only filed the present application after knowing that the 1st and 4th Respondents have filed their appeal pursuant to the default judgment the applicant repeated that he filed the present application after realising that the Registrar had not responded to his letter.

On the issue of the Draft Order the Applicant submitted that his Draft Order is clear that he sought relief for rescission of default judgment and if it is not clear he sought condonation of that defect on the basis that labour matters should not be decided on technicalities. The Applicant avoided addressing the Court on the issue of mootness both during the virtual hearing and in his written submissions.

The Applicant also raised points in limine against the Respondents to the effect that the Law Firm which represented the 1st and 4th Respondents has no Board Resolutions authorising them to represent the Respondents so the legal practitioner is not supposed to be heard until he furnishes the Court with that Resolution, the Respondents have not paid wasted costs on withdrawal of Case No LC/H/415/25 of this Court so they should not be heard before paying wasted costs. The Applicant also submitted that the Respondents are approaching the Court with dirty hands because they did not comply with two arbitral awards which ordered them to reinstate the Applicant and further hear his case. The other issues raised by the Applicant in his written submissions address a Notice of appeal which is not be relevant to the present application.

ISSUES FOR DETERMINATION

The following issues for determination arise from the parties’ submissions: -

Whether the application is urgent?

Whether the Draft Order is properly drafted?

Whether the dispute between the parties is now moot?

Whether the 1st and 4th Respondents’ legal practitioners should furnish proof of authority to represent them?

Whether the 1st and 4th Respondents should be denied audience for non-payment of costs on withdrawal of Case No: LC/H/415/25?

Whether the dirty hands doctrine should be invoked against the 1st and 4th Respondents for their failure to comply with the two arbitral awards?

ANALYSIS

Urgency

The applicable principles in the assessment of urgency in Urgent Chamber Applications were considered in the case of Kuvarega v Registrar General 1998(1) ZLR 188(H). In essence the Court established the following principles: -

‘(i) What constitutes urgency is not only the imminent arrival of the day of reckoning.

A matter is urgent if, at the time the need to act arises, the matter cannot wait.

Urgency that stems from a deliberate abstention from action until the deadline draws near is not the type of urgency contemplated by the Rules’

The default judgment that was obtained by the Respondents on 22 September 2025 in Case No: LC/H/592/25 authorised them to file their Notice of appeal within five days of the default judgment. The five-day period was due to lapse on 29 September 2025. The Applicant knew about the default judgment during the late hours of 22 September 2025 and that is when the need to act arose. The Applicant submitted that he urgently acted by writing a letter to the Registrar of this Court on 23 September 2025 and waiting for her response until 26 September when he decided to file the present application. The IECMS pathway and the Registrar’s stamp indicates that the Applicant’s Urgent Chamber Application was filed on 29 September 2025 not 01 October 2025 which was referred to by the Respondents’ legal practitioner in his submissions. The Applicant indicated in paragraph 43(g) of his founding affidavit that he knew that the Respondents had filed a Notice of appeal on 26 September 2025 and that knowledge of the filing of the Respondents’ Notice of appeal made him to file the present application. The Applicant was not candid and honest with the Court when he denied that it is the filing of the Respondents’ Notice of Appeal on 26 September 2025 which prompted him to file the present application.

The Court is of the view that the present application is not urgent because the Applicant never took the required legal action at the first opportunity after knowledge of the default judgment. The exchange of correspondence between the Applicant and the Registrar and his waiting for the Registrar’s reply do not justify urgency because they were not the appropriate legal steps for the rescission of a default judgment. Non-urgency normally results in an application being referred to the ordinary roll but this cannot be the case in the present scenario because of other issues which will be addressed later in this judgment.

The Draft Order.

The Respondents submitted that the Draft Order is not clear as it does not single out what the Applicants wants the Court to do. The Applicant submitted that the Draft Order seeks an order for rescission of default judgment. The Draft Order at page 13 of the record on paragraph 1 contains a clear prayer for rescission of a default judgment that was issued by this Court in Case No: LC/H/ 592/25 but the real issue of law in the draft order which this Court cannot ignore is that the Draft Order has no separate prayers for interim and final relief which are required as a matter of practice

in urgent chamber applications. This is a legal requirement because the standard of proof for interim relief is merely a prima facie case while the standard of proof for final relief is on a balance of probabilities. It is therefore improper for the Court to grant interim relief which has final effect to the dispute between the parties in the manner sought by the Applicant in his draft order- Kuvarega case supra at p193. The Applicant’s Draft Order is therefore fatally defective and invalid. It does not even refer to a return date for the hearing of the Application for consideration for final relief.

Mootness

The principles of the doctrine of mootness were expounded in caselaw as follows: -

‘The question of mootness is an important issue that the court must take into account when faced with a dispute between the parties. It is incumbent upon the court to determine whether an application before it still presents a live dispute between the parties. A case is moot if it seeks to get a judgment upon some matter which when rendered, for any reason, cannot have practical effect upon a then existing controversy. A matter is moot if the dispute becomes academic by reason of changed circumstances thus making the court’s jurisdiction unsustainable. Where a dispute is found to be moot, the court may still exercise its discretion to hear the case if that is in the interests of justice. It will be in the interests of justice for the court to preside over a moot dispute if the court will make an order with practical effect to either the litigants or other people.’

See the case of Ndewere v The President of the Republic of Zimbabwe N.O and Others SC57/22 and cases cited therein.

The dispute between the parties in the present case was rendered moot by the filing of the Notice of appeal by the Respondents pursuant to the default judgment. The appeal is now pending before this Court and it will be impractical to have that appeal withdrawn or interrupted during its course because it was noted pursuant to an Order of this Court. The Order for rescission of the default judgment which the applicant prayed for will therefore be a brutum fulmen, (empty noise), without any practical effect. It is therefore not in the interests of justice for this court to preside over the Applicant’s application in view of the mootness of the dispute between the parties.

The Court therefore withholds its jurisdiction to preside over the Urgent Chamber Application for Rescission of Default Judgment on the basis of mootness. This finding automatically renders all

the points in limine raised by the Applicant against the Respondents irrelevant since the Court has withheld its jurisdiction over the Application.

Costs

The Applicant prayed that his application be granted with no order as to costs in his draft order at page 13 of the record. The 1st and 4th Respondents prayed for an Order for costs on a higher scale against the Applicant on the basis that he was not candid and honest with the Court and the Respondents have incurred an expense in having to oppose this application. The Court noticed that the Applicant was indeed not candid and honest with the Court when asked about what made him to make the Urgent Chamber Application. He said he made the application because the Registrar never gave him feedback on his letter after three days from 23 September 2025. It is after those three days, that is, on 26 September 2025 that he knew that the 1st and 4th Respondents had filed a Notice of Appeal and that is what made him to file the present Urgent Chamber Application for Rescission of Default Judgment- paragraph 43(g) of his founding affidavit at page 10 of the record speaks to this. The applicant’s conduct in filing the Urgent Chamber Application clearly constitutes an abuse of process. The Court will treat the Applicant with some leniency as a self- actor and make an Order for costs against him on an ordinary scale.

DISPOSITION

In the premises, after reading the documents filed of record and hearing the Applicant and the 1st and 4th Respondent’s legal practitioner, it is hereby Ordered that: -

The Urgent Chamber Application for Rescission of Default Judgment be and is hereby dismissed

Muvirimi Law Chambers for the 1st and 4th Respondents.