Women’s University in Africa v Wilfred Jaure

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/284/24
HELD AT HARARE 8 MAY 2024
CASE NO. LC/H/143/24
AND 1 JULY 2024
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 8 MAY 2024

JUDGMENT NO. LC/H/284/24 CASE NO. LC/H/143/24

AND 1 JULY 2024

IN THE MATTER BETWEEN:-

WOMEN’S UNIVERSITY IN AFRICA	APPLICANT AND

WILFRED JAURE	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi For Applicant	R.T. Mutero

For Respondent	E.T. Mandaza MURASI J.,

This is an opposed application for rescission of default judgment granted by this court on 12 February 2024 in terms of rule 40 of the Labour Court Rules, 2017 (the rules).

Facts of the case

The applicant is a duly registered tertiary institution and the respondent is a former employee of the applicant. The respondent was employed as a procurement officer from March 2023 to 3 November 2023 when he was suspended from employment pending an investigation. The respondent was charged with sexual harassment and dismissed from employment on 24 November 2023.The respondent then filed an application for review of the proceedings of the disciplinary hearing in case number LC/H/1037/23 with this Court.

The review matter was set down for 12 February 2024 and the applicant was in default. Default judgment was entered against the applicant. This forms the background to which the applicant is seeking rescission against the default judgment granted by this court.

Applicant’s Submissions

Mr. Mutero, for the Applicant, submitted that in such applications, an applicant has to show good and sufficient cause. He stated that Applicant’s legal practitioner had detailed the reasons for non- appearance on the date in question. He further stated the legal practitioner had submitted her medical records showing her illness. He further submitted that even though there was no documentation showing the Doctor’s attention of the court date, the explanation tendered in the circumstances was reasonable. Mr. Mutero further argued that there was no reason for the Applicant to default after having diligently filed all the papers intending to oppose the matter before the Court.

As far as prospects of success were concerned, Mr. Mutero submitted that Applicant had an arguable matter having regard to the issues raised by the Respondent. He further stated that Respondent had raised the fact that he had not been served with the documents pertaining to the hearing before the Applicant and that Applicant intended to show in the proceedings that Respondent had indeed been served with the said documents. He further pointed out that in applications for rescission, an applicant should show that he/she has a bona fide defence and in the present matter, Applicant had shown that it had a bona fide defence.

Respondent’s Submissions

In response, Ms. Mandaza stated that there were no reasons advanced by the Applicant for its absence on the court date. She further stated that the documents which had been provided by the legal practitioner did not show that she was attended to by a doctor on 12 February 2024. She further added that there was no evidence of a medical appointment for the said date.

In respect of the prospects of success, Ms. Mandaza submitted the documents in the main matter showed that Applicant did not have prospects of success since the issue of jurisdiction was provided for in the Code of Conduct and thus the Hearing Committee was improperly constituted. A further issue was that Respondent had not been served with the documents in the hearing and she argued that the respondent would have a ruling in his favour.

ANALYSIS

An applicant seeking rescission of a default judgment has to show “good and sufficient cause” as to why the court should rule in their favour. This position was enunciated in the case of Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at p 211 C-F, where a three-pronged enquiry was conducted by the court of appeal in assessing whether or not “good and sufficient cause” existed for the rescission of judgment to be granted. In this case, for “good and sufficient cause” to be found to exist, the court had to be satisfied (i) that the applicant’s default was not willful, (ii) that the applicant has a bona fide defence, and (iii) that the applicant has prospects of success in the prosecution of its cause in the main matter.

This position was also followed in Stockil v Griffiths 1992 (1) ZLR 172 (S) at p 173 where GUBBAY JA (as he then was) held that:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving “good and sufficient cause”, as required to be shown by rule 63 of the High Court of Zimbabwe Rules 1971, are well established. They have been discussed and applied in many decided cases in this country. See for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd S 16-86 (not reported); Roland E & Anor v McDonnell 1986 (2) ZLR 216 (S) at 226E-H; Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are: (i) the reasonableness of the applicant's explanation for the default; (ii) the bona fides of the application to rescind the judgment; and (iii) the bona fides of the defence on the merits of the case which carries some prospect of success. These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”

In the case of G D Haulage (Pvt) Ltd v Mumurgwi Bus Services (Pvt) Ltd 1979 RLR 447 (A) at 455 B-G, it was held that the factors determining rescission ought to be considered in conjunction with each other and cumulatively. In Dupreez v Hughes NO 1957 R & N 706 (SR) at 709 A-D, it was held that too much emphasis must not be placed on one factor, all must be regarded in conjunction. An unsatisfactory explanation for default may be strengthened by a very strong defence on the merits and a completely satisfactory explanation for defaulting may cause the court not to scrutinize too closely the defence on the merits.

The applicant’s legal practitioner did not attend court on 12 February 2024.She avers that on the day in question she felt pain and had to go for an unplanned medical appointment. She was given medication that made her drowsy thereby affecting her senses, thus she could not attend court. The applicant’s legal practitioner has also provided the court with her medical history and a letter from

her doctor detailing how she has gone through an operation and must attend various reviews. The letter does not address specifically the day in question.

Despite the applicant’s failure to proffer a written document from her doctor explaining her absence on 12 February 2024 specifically, I am of the view that the applicant has provided a good and sufficient reason for her default. In Zimbabwe Banking Corp. Ltd v Masendeke 1995(2) ZLR 400(S) McNALLY JA opined that:-

“Willful default occurs when a party freely takes a decision to refrain from appearing with full knowledge of the service or set down of the matter.”

It is clear that the applicant’s legal practitioner only defaulted court due to her illness, it was not willful on her part.

The application for rescission was made on the 19th February 2024, which is seven days from the court date. There was no inordinate delay in filing the application. It is trite law that in considering applications for rescission of default judgment, the court uses its discretion to ensure that justice as between the parties prevails at the end of the day. See Chimpondah & Another v Muvami 2007 (2) ZLR 326 (H) at 327F.

It is my considered view that Applicant has demonstrated that it has an arguable case. The issues that are to be placed for determination before the court are wide and varied. They are not trivial in nature. The applicant argues that the respondent was properly charged and dismissed from employment whilst the Respondent gives a contrary position. Either party should be given an opportunity to ventilate their respective positions.

The following Order is appropriate;

The application is hereby granted.

The default judgment granted on 12 February 2024 is hereby rescinded.

Sachikonye-Ushe Legal Practitioners	Applicant’s Legal Practitioner

Chinohwenya & Zhangazha	Resposndent’s Legal Practitioner