This
is an appeal against a judgment of the Labour Court dismissing an
application for rescission of default judgment, and, consequently,
barring the appellant from prosecuting his matter as a result of
failure to file heads of argument in time.
At
the hearing of the appeal, after hearing argument from both parties
and considering the submissions, the ...
This
is an appeal against a judgment of the Labour Court dismissing an
application for rescission of default judgment, and, consequently,
barring the appellant from prosecuting his matter as a result of
failure to file heads of argument in time.
At
the hearing of the appeal, after hearing argument from both parties
and considering the submissions, the Court gave the following order
by consent:
“IT
IS ORDERED BY CONSENT THAT:
1.
The matter be and is hereby struck off the roll with no order as to
costs.”
The
reasons for the decision now follow.
The
appellant was employed by the respondent as a Branch Manager. Some
time in 2008, he was convicted of a charge of wilful disobedience of
a lawful order by the respondent`s disciplinary authority and was
dismissed from employment. The appellant filed a complaint of unfair
dismissal with a labour officer. The labour officer failed to resolve
the matter and it was consequently referred for compulsory
arbitration. The arbitrator found in favour of the appellant and held
that his dismissal was unlawful.
Dissatisfied
with this finding, the respondent appealed to the Labour Court (“the
court a quo”). The court a quo found in favour of the appellant and
it upheld the findings of the arbitrator. Consequently, it ordered
that the appellant be reinstated without loss of salary and benefits,
or, alternatively, that he be paid damages in lieu of reinstatement.
The
parties failed to agree on the quantum of damages and the appellant
filed an application for quantification of the damages. The court a
quo upheld part of the appellant's claims and dismissed others. On
8 November 2013, the appellant filed a chamber application for leave
to appeal against that judgment. The application was opposed by the
respondent. The court a quo dismissed the application on the ground
that the appellant, who had the benefit of legal representation at
the relevant time, had failed to timeously file heads of argument and
was thus barred.
On
1 September 2016, the appellant filed, in the court a quo, a “chamber
application for condonation for late filing of an application for
rescission of default judgment”. The application was opposed by the
respondent. Again, the appellant failed to file heads of argument in
time, prompting the respondent to file a chamber application for
dismissal of the application in terms of Rule 19(3)(a) as read with
Rule 19(4) of the Labour Court Rules, 2006 (“the Rules”).
The
chamber application for condonation of late filing of an application
for rescission of default judgment was dismissed on 2 November 2016.
On
6 December 2016, the appellant applied for rescission of the judgment
handed down on 2 November 2016 which dismissed the application for
rescission of a default judgment. On 21 December 2016, the respondent
filed its notice of opposition. The appellant did not file heads of
argument in support of this application, as required by Rule 19 of
the Rules. This prompted the respondent to file another chamber
application for dismissal of the application for rescission.
However,
the application for dismissal was dismissed because the respondent
had incorrectly cited the parties in the matter.
The
appellant's application for rescission of judgment was therefore
set down for hearing. At the hearing of the matter, the respondent
raised a point in limine, to the effect that the appellant's heads
of argument, which were filed on 7 February 2017, were filed out of
time. It was contended that the appellant was therefore barred and
that he ought to have applied for condonation of late filing of heads
of argument. It was therefore submitted that the effect was that the
appellant could not prosecute the application for rescission of
judgment.
The
court a quo dismissed the application and held that, instead of
applying for rescission of the judgment handed down on 2 November
2016, the appellant ought to have applied for condonation of late
filing of heads of argument.
It
is against that decision that the appellant now appeals.
It
is pertinent to note that the appellant purports to appeal against a
judgment of the court a quo which barred him from prosecuting his
matter and consequently dismissing an application for rescission of
default judgment. However, what is more important to note is that
this judgment was just but one of the appellant's unsuccessful
attempts to set aside a default judgment that had been granted
against him by the court a quo.
This
is the judgment wherein the court a quo dismissed the appellant's
application for leave to appeal against the judgment quantifying the
damages in lieu of reinstatement that had been awarded to the
appellant. The appellant had failed to file heads of argument in that
matter and he was barred and therefore not before the court.
Effectively, therefore, the appellant seeks to appeal against a
judgment that was granted in default by the court a quo.
The
requirement for a litigant who is represented to file heads of
argument is captured in Rule 26(1) of the Labour Court Rules, 2006
which states as follows:
“(1)
Where an applicant or appellant is to be represented by a legal
practitioner or representative at the hearing of the application,
appeal or review, the legal practitioner or representative shall -
(a)
Within ten days of receiving a notice of response to the application,
appeal or review, lodge with the Registrar heads of argument clearly
outlining the submissions he or she intends to rely on and setting
out the authorities, if any, which he or she intends to cite; and
(b)
Immediately afterwards deliver a copy of the heads of argument to the
respondent and lodge with the Registrar proof of such delivery as
required by Rule 11.”
Where
a party fails to file heads of argument in support of an application,
he, she or it shall be automatically barred. This bar is operational
in terms of sub-rule 2, which is to the following effect:
“(2)
No legal practitioner or representative shall be allowed to make
submissions in a matter without having filed heads of argument:
Provided that a party who has been barred may -
(a)
Make a chamber application to remove the bar, and the Judge or Court
may allow the application on such terms as to costs and otherwise as
he or she thinks fit; or
(b)
Make an oral application to remove the bar at the hearing of the
application or appeal.”…,.
A
reading of the above provisions will show that a party who is
represented must file his, her or its heads of argument within ten
days of receiving the notice of response to the application. Failure
to file heads of argument means that the legal practitioner is not
allowed to address the court in the matter. Both provisions make use
of the word “shall”. This evinces the Legislature's intention
to make the provisions peremptory….,.
In
casu, the appellant`s legal representative was barred from making
submissions before the court a quo by virtue of his failure to
timeously file heads of argument. As a result, the judgment was
granted in default.
The
question of what is meant by “default” was considered in
Katritsis v De Macedo 1966 (1) SA 613 (A)…, as follows:
“It
is clear from the authorities that the default in regard to a
defendant is not confined to his failure to file the necessary
documents required by the Rules in opposition to the claim against
him, or to appear when the case is called, but comprises also failure
to attend Court during the hearing of the matter.”
In
the above case, the court, in quoting, VOET, also emphasised that a
defendant who is present, but does not make a defence, is deemed to
be absent. It held at 618D-E:
“Voet,
2.11.11., makes it even clearer. I quote from Gane's translation:
'Moreover,
not only is he who does not attend at all on the day fixed to be
accounted a dallier and defaulter, but also he who does indeed attend
but does not take in hand the business for the taking in hand of
which the day had been appointed. For instance, a plaintiff appears
and makes no claim: or a defendant does not challenge the plaintiff's
claim when he should do so. He who, though present, makes no defence
is surely reckoned in the position of one who is not there; and he
who, when called upon, does not plead is deemed to have been futile
and is expressly classed as contumacious.'”…,.
It
therefore becomes apparent that the appellant, because of his failure
to file heads of argument, was not before the court a quo and could
not address it. In the circumstances, the court properly entered a
default judgment against him.
The
appellant does not deny that the judgment of the court a quo
dismissing his application for leave to appeal to the Court was a
default judgment. In fact, he states the following in his heads of
argument:
“Mrs
Justice Chivizhe dismissed the appellant's case under LC/H/16/10
because the appellant had failed to file his heads of argument
timeously. This was a default judgment in terms of Rule 19(3)(a)
[S.I.59 of 2006].”
Having
determined that the judgment which was handed down by the court a quo
was a default judgment, the question that obtains is whether the
appellant could properly appeal against it.
At
law, one cannot appeal against a default judgment. Rather, the proper
procedure is for the aggrieved party to seek rescission of the
judgment.
This
position was laid down in Sibanda and Ors v Nkayi Rural District
Council 1999 (1) ZLR 32 (S). In that case, the applicants in an
application for rescission of a default judgment sent their legal
counsel to appear on the scheduled hearing date, with instructions
not to prosecute the application but to seek a postponement. The
court turned down the request for postponement and proceeded to
dismiss the application. The applicants noted an appeal against that
decision. At p 33E-F the court held as follows:
“The
present appeal is therefore against the order of 23 May 1997
dismissing the application for rescission of the order made on 8
November 1996.
That
order, of 23 May 1997, as I understand it, was effectively a default
judgment. The practitioner who appeared for the appellants presented
no submissions on the merits. There were no reasons given for
judgment. Once the postponement was refused, the appellants were
effectively in default. Procedurally, therefore, the appellants
should have sought a rescission of the default judgment of 23 May
rather than appeal against it.
On
this ground alone, the appeal must fail.”
In
Zvinavashe v Ndlovu 2006 (2) ZLR 372 (S) the lower court, in granting
a default judgment, had proceeded to give reasons thereof. In
upholding the nature of the default judgment notwithstanding the
reasons given by the court a quo, the Court, per GWAUNZA JA…, held
as follows at 375B-C:
“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'. It follows that, in casu, the
appellant's default remained unpurged even as the learned judge a
quo considered the merits of the matter and gave reasons for his
judgment. By virtue of Rule 62, the learned judge a quo could simply
have 'absolved' the respondent from the application, that is,
dismissed it, as long as he was not considering postponing the
application or making any other order. 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.”
More
recently, the position was fortified by BHUNU JA in Guoxing Gong v
Mayor Logistics (Pvt) Ltd and Anor SC02-17…, where he reiterated
the position in the following words:
“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.”
The
reason why an Appellate Court cannot set aside a default judgment on
appeal is that the merits of the dispute between the parties will not
have been conclusively determined. This is in the sense that the
default judgment is susceptible to rescission at the instance of an
aggrieved party. An Appellate Court cannot make a pronouncement upon
it.
As
such, it is for the trial court to make a determination of the
dispute as a court of first instance.
In
June Chung v Shanique Cunningham [2017] JMCA Civ 22 the Jamaican
Court of Appeal, per P WILLIAMS JA, held the following…,:
“[27]
Given the main thrust of the submissions made on behalf of the
appellant in this regard, it is best to bear in mind the fact that
the entering of a default judgment is, in the majority of cases, an
administrative process without any real determination of the claim.
While the default judgment remains unchallenged or where challenges
to it have not been successfully made, it is to be properly
considered final on the issues of liability as far as a claimant can
then move to have his damages assessed, and the issue of liability
cannot then be raised.
[28]
The principle which underlies the jurisdiction for setting aside a
default judgment has been long established as pronounced in the case
of Evans v Bartlam [1937] AC 473. LORD ATKIN at page 480 stated:
'The
principle obviously is that, unless and until the court has
pronounced a judgment upon the merits or by consent, it is to have
the power to revoke the expression of its cohesive power where that
has been obtained only by a failure to follow any of the rules of
procedure.'”
By
parity of reasoning, where a default judgment has not been challenged
or has been unsuccessfully challenged, it remains extant and binding.
The court seized with the jurisdiction to rescind such a default
judgment is the court which granted the judgment.
In
casu, it is not in dispute that the appellant subsequently lost the
benefit of legal representation and that he made efforts to rescind
the default judgment that was granted against him. However, the
efforts came to nought and the default judgment, not having been set
aside, remained extant. Having found that the default judgment is
extant and that no appeal can lie against it, it was for this reason
that the Court found that the appeal was improperly before the Court
and consequently struck it off the roll.
