Tichaona Bekinosi v TelOne (Pvt) Ltd

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/294/20
HELD AT HARARE ON 9 SEPTEMBER, 2020
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/294/20

HELD AT HARARE ON 9 SEPTEMBER, 2020       CASE NO. LC/H/REV/23/20

AND 4 DECEMBER, 2020

In the matter between:-

TICHAONA BEKINOSI							Applicant

And

TELONE (PVT) LTD							Respondent

Before the Honourable Mhuri, J.

For Applicant 			:	Mr T. Marima (Legal Practitioner)

For Respondent:			:	Mr J. Dondo (Legal Practitioner)

MHURI J.

This is an application for review based on the following grounds:-

The Respondent without following due process of law withheld applicant’s salary from October 2019 when he was not sitting on a suspension without pay, court order or termination of employment.

The decision of the Respondent to dismiss applicant whilst he was sick and bed ridden was unprocedural and violates the principle of natural justice and constitutes a serious procedural impropriety which violates principles of natural justice particularly the audi alteram partem principle.

The Respondent committed gross procedural irregularities by convicting and dismissing applicant against the medical report advising that applicant was unfit to stand the disciplinary hearing.

Applicant’s prayer was to;

have the application for review granted with costs.

have the disciplinary committee’s decision dismissing applicant set aside and in its stead substituted with, “the application for a postponement be and is hereby granted”.

have the decision withholding applicant’s salary set aside.

have the matter referred back for a hearing de novo by a different disciplinary committee. The parties to revert to the status quo ante.

The application is opposed and Respondent raised two preliminary issues one of which it abandoned. The remaining one was to the effect that the proceedings and decision which applicant is seeking review are default proceedings which were conducted in his absence. The route which applicant ought to have taken was to seek rescission of the default decision before the forum that issued it instead of seeking review in this Court. Respondent submitted that, because applicant did not seek rescission, the application for review is therefore invalid and a nullity.

Respondent could not cite any authority to support its position save to state that it relies on the case law that states that a default decision is not appealable.

In response, it was applicant’s submission that the point in limine was not well taken. The disciplinary committee is empowered in terms of the Code of Ethics and Conduct for TelOne and it could only have exercised the powers in terms of the Code. It is not empowered to determine applications for rescission. For this position it relied on the case of;

BARCLAYS BANK

v

FORTUNE NCUBE

SC 26/2009

Applicant further submitted that the disciplinary committee’s decision can be reviewed and therefore the application was properly before the Court. The point in limine should therefore be dismissed.

The principle that he who avers bears the onus of proof is apt in this case. Respondent makes a bold averment that a default judgment is not reviewable without citing any authority to support this and also his failure to cite the authority which supports the position that a default judgment is not appealable is not expected of a senior legal counsel. To expect the Court to do the research for him to support his averment cannot be accepted. Indeed, it is the legal position that one cannot appeal against a default judgment. The procedure is for the aggrieved party to seek rescission of the default judgment.

In the case of;

SIBANDA AND OTHERS

V

NKAYI RURAL DISTRICT COUNCIL

1999 (1) ZLR 32 (S)

the Court held that;

“The appeal against the order dismissing the application for rescission of the default judgment was effectively an appeal against a default judgment. What the appellants should have done was seek rescission of the order”.

The Respondent has a Code of Ethics and Conduct which provides for Misconduct and Grievance Handling Procedures. The code under section 3 provides for APPEALS AND APPEALS COMMITTEES and the procedures to be followed in an appeal. As correctly submitted by applicant, the code does not provide for applications for rescission of its decisions. In view of this silence, applicant submitted that the Disciplinary Committee does not have authority to hear applications for rescission of its decision. Reliance was made on the case of;

BARCLAYS BANK

V

FORTUNE NCUBE

SC 26/09

in which the Court held that the NEC had no power to condone a late noting of appeal because it was not provided for in the code. The question that arises is can a party apply for review of a default judgment?

As alluded to earlier, the law on appeals against a default judgment is well established.

SIBANDA AND OTHERS

V

NKAYI RURAL DISTRICT COUNCIL

(supra)

ZVINAVASHE

V

NDLOVU

2006 (2) ZLR 372 S

in which Gwaunza JA (as she then was) held at page 375 B-C as follows;

“Counsel for the respondent contends correctly that a default judgment can only be set aside by a successful application for rescission of the judgment under the rules of the relevant court. The application must be made by the defaulting party himself, as indicated by the expression. ‘purging his default.”

GUOXING GONG

V

MAYOR LOGISTICS (PVT) LTD AND ANOR

SC 2/17

at page 4 – 5 Bhunu JA held;

“It is trite that, save in special circumstances which do not concern us here, no appeal lies to this court against a default judgment which is normally reversed by rescission of judgment or a declaration of nullity. It therefore follows that, in the absence of special circumstances, no valid ground of appeal can be laid at the door of this court concerning the propriety or otherwise of a default judgment. Whether or not there was non-joinder or any other irregularity pertaining to the default judgment that is a complaint to be laid at the court a quo’s door and not this court. There being no special circumstances pleaded in this case, this court will not entertain any argument calculated to impugn the validity of the default judgment at hand.”

From the above cases, the reasoning by the courts for holding that one cannot appeal against a default judgment is that the merits of the dispute between the parties will not have been conclusively determined per Malaba CJ

DANIEL CHINTENGO

V

TREDCOR ZIMBABWE (PRIVATE) LIMITED t/a TRENTYRE ZIMBABWE

SC 67/19

In my considered view therefore, that since a review application deals not with the substantive issues of a decision but procedural irregularities and further that, since review proceedings can be initiated even before the conclusion of the matter on the merits, a default judgment can be subject of review proceedings. Applicant in casu, is not seeking to impugn the decision on the merits but is seeking that the irregularities be put right.

In that regard, I find that the preliminary point was not well taken and I dismiss it.

To that end, it is ordered that the preliminary point be and is hereby dismissed.

The Registrar is directed to reset the application for review for continuation.