MALABA CJ: 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 Rules, 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 subrule 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.”
(emphasis added)
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 Shumba and Anor v The Zimbabwe
Electoral Commission and Anor 2008 (2) ZLR 65 (S) at 80E-81C, the
Court held as follows regarding peremptory and directory provisions:
“It is a generally accepted
rule of interpretation that the use of peremptory words such as
'shall' as opposed to 'may' is indicative of the
legislature's intention to make the provision peremptory. The use
of the word 'may' as opposed to 'shall' is construed as
indicative of the legislature's intention to make a provision
directory. In some instances the legislature explicitly provides that
failure to comply with a statutory provision is fatal. In other
instances, the legislature specifically provides that failure to
comply is not fatal. In both of the above instances no difficulty
arises. The difficulty usually arises where the legislature has made
no specific indication as to whether failure to comply is fatal or
not.…
Francis Bennion Statutory
Interpretation suggests that the courts have to determine the
intention of the legislature using certain principles of
interpretation as guidelines. He had this to say at pp 21-22:
'Where a duty arises under a
statute, the court, charged with the task of enforcing the statute,
needs to decide what consequence Parliament intended should follow
from breach of the duty.
This is an area where legislative
drafting has been markedly deficient. Draftsmen find it easy to use
the language of command. They say that a thing “shall” be done.
Too often they fail to consider the consequence when it is not done.
What is not thought of by the draftsman is not expressed in the
statute. Yet the courts are forced to reach a decision.
It would be draconian to hold
that in every case failure to comply with the relevant duty
invalidates the thing done. So the courts' answer has been to
devise a distinction between mandatory and directory duties. Terms
used instead of “mandatory” include “absolute”, “obligatory”,
“imperative” and “strict”. In place of “directory”, the
term “permissive” is sometimes used. Use of the term “directory”
in the sense of permissive has been justly criticised. (See Craies
Statute Law 7 ed 1971 p 61 n 74.) However it is now firmly rooted.
Where the relevant duty is
mandatory, failure to comply with it invalidates the thing done.
Where it is merely directory the thing done will be unaffected
(though there may be some sanction for disobedience imposed on the
person bound). (As to sanctions for breach of statutory duty see
section 13 of this Code (criminal sanctions) and section 14 (civil
sanctions)).'”
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) at p 618B 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.'” (emphasis added)
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 (as she then was) 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 SC 2/17 at pp 4-5 of the cyclostyled judgment, 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 at paras 27-28:
“[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.
GUVAVA JA: I agree
BERE JA: I agree
Muzangaza, Mandaza & Tomana, respondent's legal practitioners
