Trust Me Security v K. Kasemenya & 14 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/398/2016
HARARE, 29 FEBRUARY 2016
CASE NO. LC/H/398/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/398/2016

HARARE, 29 FEBRUARY 2016			   CASE NO. LC/REV/H/64/14

AND 23 JUNE 2016

In the matter between:-

TRUST ME SECURITY					Appellant

And

K. KASEMENYA & 14 OTHERS				Respondents

Before Honourable R. Manyangadze, J

For Appellant		Mr N.M. Phiri (Legal Practitioner)

For Respondents		Mr K. Guteni (Trade Unionist)

MANYANGADZE, J:

This is an appeal and a review against an arbitral award handed down on 13 February 2013 which quantified terminal benefits in favour of the respondents.  The quantification emanated from an earlier award, handed down on 2 March 2012, in terms of which the appellant was ordered to pay terminal benefits to the respondents.

The appellant was ordered to pay various amounts to the respondents, covering salaries, leave days, notice pay and gratuity.  The total sums payable to each respondent appear in the quantification award, framed as follows:

“Respondent Trust Me Security is hereby ordered to pay K Kasemenya USD3900, Mtshabela Tshababa USD3280, Rupiya Wilfilda USD3233.33, Sarah Muparo USD3600, Sheila Masuku USD3,563, Thokozile Mpofu USD3533,33, Alice Mutombo USD3600, Shepherd Muhovo USD3672, Precious Fasha USD3433,33, Lindi Dhliwayo USD4100, Rosemary Gochera USD4100, Rosemary Mungandsire USD3593.33, Rosemary Zongororo USD3266.66 and Marita Mpofu USD3872.”

A perusal of the record shows that the review and appeal arise from both the initial and subsequent quantification awards.  It seems to me this is an untidy manner in which to handle litigation.  The initial award is the basis for the subsequent award.  It is not clear why the appellant did not first seek a review and/or appeal of the initial award.  The rights granted to the respondents in the initial award are the ones that led to the quantification award.  Disposal of the appeal/review in respect of the initial award would, therefore, determine whether or not it is necessary to proceed to the appeal/review in respect of the quantification.  If the appeal in respect of the initial award is allowed and the award is set aside, it will have the effect of nullifying the quantification award.  Thus, action on the subsequent award is dependent on the outcome of the action on the initial award.

Be that as it may, there is an issue that arises from both awards, which I think would be dispositive of both matters, without delving into the merits thereof.

A reading of the quantification award shows it was granted in default of the appellant’s appearance, who was the respondent then.  Although the initial arbitral award was not also enclosed in the record, submissions from both parties show that it was granted in similar fashion i.e. in default of the appellant (then respondent)’s appearance.  It was a default judgment.

This significant aspect of the proceedings is not disputed by the appellant, that the awards were default awards.  There were no written submissions by the appellant.  There were no oral submissions by the appellant as well.

The following exchange between the court and the appellant is instructive.

“Q	It appears the arbitral award was granted in default of appearance of the appellant, compelling the arbitrator to hear only the respondents. Was the arbitrator’s award then not a default judgment.

A	Effectively it would amount to a default judgment, but our position is, this was quantification, he was inclined firstly to operate within the parameters of the terms of reference.  It was not incumbent upon him, even if it was a default, to assume powers he did not enjoy.”

The appellant insisted it was proper for it to seek a review and an appeal, inspite of the default awards.

In countering the appellant’s submissions, the respondents averred;

“The appellant was duly notified of the proceedings.  For reasons we do not know, they did not avail themselves ….. I think appellant should have made an application for rescission before the same honourable arbitrator.”

The appellant explained that it was not heard in the proceedings aquo, as it only became aware of the awards upon registration of the quantification award.  The appellant was, in essence, trying to explain its default.  This was in an endeavour to persuade this court that it was not in willful default.  That, in my view, is what, it should have done in an application for rescission of the default awards.  If aggrieved by the arbitrator’s determination of that application, appellant could then properly approach this court, appealing against the dismissal of its application for rescission of the default award.

The position that a proper remedy for a decision made in the absence of the party against him it was made is an application for rescission, was clearly stated by the Supreme Court in Zvinavashe v Ndlovu SC 40/06.  In that case, GWAUNZA JA stated:

“The consideration by the Judge a quo of the merits of the case, and the giving of his reasons for judgment, therefore had no effect on the status of the judgment given, which remained that of a default judgment.

Be that as it may, the decision by the court a quo, to dismiss the appellant’s application, effectively for want of prosecution, was correct.  As has already been explained, that decision remained a default judgment whose setting aside could only follow a successful application for its rescission.

For the avoidance of doubt, it is declared that the giving of reasons for the default judgment in question, by the court a quo, was unnecessary and consequently, of no force or effort.  It does not convert the default judgment into a judgment on the merits.”

In my view, the circumstances of the instant case are no exception.  The review and appeal brought before the court, should have been preceded by an application for a rescission of the default award in question.  The review and appeal are therefore not properly before the court, and must be struck off the roll.

It is accordingly ordered that,

The application for review and the appeal, in respect of both arbitral awards, be and are hereby struck off the roll.

The applicant/appellant shall bear the respondent’s costs.

Muvingi & Mugadza, appellant’s legal practitioners