DISTRIBUTABLE
(126)
Judgment No
SC 142/04
Civil Appeal No 140/04
REDSTAR
WHOLESALERS v LIVINGSTONE MUTOMBA
SUPREME COURT OF
ZIMBABWE
CHIDYAUSIKU CJ,
SANDURA JA & ZIYAMBI JA
HARARE NOVEMBER 16,
2004 & JUNE 13, 2005
A. Moyo, for the
appellant
No appearance for the
respondent
CHIDYAUSIKU CJ: The respondent was employed by the appellant
as a driver. He was charged with misconduct and suspended from
duty
with effect from 27 August 1999. An enquiry into the respondents
conduct was instituted in due course and the respondent
was dismissed
from employment. He appealed against his dismissal to the Local
Joint Committee which also dismissed his appeal.
The respondent
thereafter appealed to the Negotiating Committee of the National
Employment Council for the Commercial Sectors which
also dismissed
his appeal and confirmed his dismissal. He then appealed to the
Labour Court.
The Labour Court
heard the respondents appeal on 18 March 2003. At the hearing of
the appeal the appellant was absent. Section
17 of Statutory
Instrument 30/1993 provides that if a party or a witness fails to
appear at its hearing the Tribunal may nevertheless
proceed with the
hearing in his absence. The Labour Court therefore proceeded in the
absence of the appellant in terms of s 17
of Statutory Instrument
30/1993.
The Labour Court
having heard submissions from the respondents legal practitioner
allowed the appeal in its judgment of 12 June
2003. In allowing the
appeal the President of the Labour Court reasoned as follows:
Mr Gumbo who appeared on behalf of the appellant submitted
that the reports against the appellant were false and that the
authors of those
reports had been coerced into making such false
reports against the appellant by the supervisor, one Warama. Mr
Gumbo submitted that there was no independent evidence to
corroborate the reports by the assistants. Mr Gumbo further
pointed out that a person who allegedly telephoned the respondent
corroborating the assistants false reports was working
in
collusion with the said assistants. Mr Gumbo submitted that
both the authors of the reports in question are prepared to give
evidence in support of the appellant. Mr Gumbo also
submitted that the hearing committee was improperly constituted and
therefore the proceedings were a nullity.
Appellant has always
denied the allegations. He is still denying them.
The court took note of
the fact that the respondent was duly served with the notice to
appear in court but was in default. The court
considered the
appellants position. The facts which have been placed before
the court, if unchallenged, which they are not, mean there was no
wrongdoing on the part of
the appellant.
In view of the above
the appeal must succeed.
(my emphasis)
It is clear from the judgment of the Labour Court that the appeal
was allowed on the basis that the facts alleged by the respondent
were not challenged. The probabilities are that the reason why the
facts upon which the court a quo relied in its judgment were
not challenged is because the appellant was not present at that
hearing. The record and judgment clearly
show that the appellant
was not present at the hearing.
The appellant then applied on 1 July 2003 to have the determination
of the Labour Court granted in his absence rescinded. The
application
for rescission was made in terms of s 92C (1) of the
Labour Relations Act [Chapter 28:01] (the Act). Section
92C(1) of the
Act provides that the Labour Court may, on application,
rescind or vary any determination or order which it made in the
absence of
the party against whom it was made. Thus the Labour
Court is required, in terms of s 92C(1) of the Act, to consider the
merits
of an application for rescission whenever such an application
is made by the party that was in default.
The respondent was not
present at the hearing of the application for rescission. The
Labour Court, after considering the written
submissions and hearing
the appellants counsel, issued the following order:
IT IS ORDERED
That the application be
and is hereby denied on the grounds that the judgment entered was on
the merits. The matter proceeded in
the absence of the other side.
It was not a default judgment, an appeal lies to the Supreme Court.
It is not clear from the judgment of the President of the Labour
Court why she concluded that the judgment of the Labour Court
of 12
June 2003 was not a default judgment. The proceedings were conducted
in the absence of the appellant and the judgment itself
is very clear
on that point. It certainly is a judgment given in proceedings
conducted in the absence of one of the parties and
in respect of
which the absent party can apply for rescission in terms of s 92C (1)
of the Act. I am satisfied that the Labour
Court was required, in
this case, to consider the merits of the application for rescission
of the default judgment. In determining
whether or not the default
judgment should be rescinded or varied the Labour Court should have
considered whether good cause had
been shown. This is the test
generally applied in applications for rescissions of judgment. See
Du Preez v Hughes NO 1957 R & N 706 (SR); Roland &
Anor v McDonnell 1986 (2) ZLR 216 (S); Songore v Olivine
Industries (Pvt) Ltd 1988 (2) ZLR 210 (S); Simbi v Simbi
SC164-90.
Thus the President of
the Labour Court, in order to determine whether the judgment of 12
June 2003 should be rescinded, should have
considered whether the
application for rescission had established a good and sufficient
cause. In doing so the court should have
considered such factors
as: the length of the delay in applying for the rescission, the
reason for the default, the prospects of
success and the balance of
convenience. The Labour Court did not do so but simply dismissed
the application on the basis that the
judgment in respect of which
rescission was sought was on the merits.
The Labour Court
clearly misdirected itself on a point of law and on that basis the
Labour Courts determination should be set
aside and the matter
remitted to the Labour Court for the determination of the application
for rescission on the merits, that is,
whether or not the default
judgment of 12 June 2003 should be rescinded.
In the result the
appeal is allowed and the matter is referred to the Labour Court for
determination of the application for rescission
on the merits. The
order of the Labour Court is set aside and the following order is
made:
(a) That the determination granted by the Labour Court on 27 March
2004 be and is hereby set aside.
(b) That the Registrar
of the Labour Court is hereby directed to reset the matter down for
determination of the application for rescission
on the merits.
SANDURA JA: I
agree.
ZIYAMBI JA: I
agree.
Coghlan Welsh &
Guest, appellant's legal practitioners