HLATSHWAYO
JA
[1] This
is an appeal against the default judgment granted by the Labour Court
on 2 November 2016.
BACKGROUND
FACTS
[2] The
respondent was employed by the appellant as a till operator. On 30
June 2015 there was a scuffle between the respondent and a customer
over an issue of change. A spot check was conducted and a shortfall
of $45 was discovered in the respondent's till. The respondent was
asked to write a report of the incident and the shortfall. In the
report, he stated that the shortfall was caused by $50 which he had
given to a fellow till operator Nancy Chawanza who had forgotten to
return the money. The respondent also stated in the report that he
had served a customer and given him $180 cash back instead of $130.
He averred that the customer later returned the $50 after realising
the error and he replaced the money in his till without notifying his
supervisors.
[3] The
respondent was subsequently charged with the offence of deliberately
giving untrue or incorrect information and for unsatisfactory work
performance. A disciplinary hearing was conducted, and he was found
guilty, and was subsequently dismissed. He appealed against the
decision to the Local Joint Committee
which
upheld the determination and the dismissal. Aggrieved, the respondent
appealed to the National Employment Council for the Commercial
Sections (NEC) which upheld the determination and dismissed the
appeal. As a result, the respondent noted an appeal with the Labour
Court on 1 June 2016.
[4] The
appellant failed to file a notice of response at the Labour Court
within the stipulated time, only to attempt to do so some 4 months
later on 18 October 2016 together with heads of argument. This was so
despite the appellant having been favoured with a letter from the
registrar of the Labour Court calling on it to file a response.
At
the hearing of the matter the court a
quo
proceeded in terms of Rule 22(b)(1) of the Labour Court Rules, 2006
(SI 59 of 2006), heinafter referred to as “the rules”, and
entered
default judgment against the appellant.
[5] Aggrieved
by the decision of the court a
quo,
the
appellant noted an appeal to this Court on the following grounds.
(a)
The court a
quo
erred, on a question of law, by proceeding to enter default judgment
against the appellant in circumstances in which the appellant had
filed a notice of response, albeit belatedly, as well as heads of
argument which would have enabled the court to determine the matter
on the merits.
(b)
The court a
quo
erred, on a question of law, by failing to find that the explanation
which was given by the appellant for the delay in filing the Notice
of Response constituted good cause for the delay.
(c)
The court a
quo
made an error, on a question of law, by not taking into account the
nature of the case and failing to apply its discretion judiciously,
more specially by not considering the evidence on record which
demonstrated that the respondent had admitted to the offences with
which he was charged, which offences attracted a penalty of
dismissal.
(d)
The court a
quo
in any event erred, on a question of law, by failing to give reasons
for the judgment which is appealed against. A failure to give reasons
constitutes a judicial irregularity.
SUBMISSIONS
BEFORE THIS COURT
[6] At
the hearing of the appeal, counsel for the appellant argued that the
court a
quo
erred in not providing reasons for its decision, which was that of
the default judgment. Per
contra,
counsel for the respondent submitted that since what was being
appealed against was a default judgment, it could only be set aside
through an application for rescission of that judgment. He further
submitted that the appellant had not requested the reasons from the
Labour Court.
APPLICATION
OF THE LAW TO THE FACTS
After
hearing submissions, my view is that the sole issue to be determined
is whether the default judgment entered by the court a
quo
is appealable.
[7] The
respondent filed its notice of appeal to the Labour Court on 1 June
2016. In terms of the Labour Court Rules, 2006, the appellant had 14
days within which it could file its notice of response. Rule 19(2)
provides as follows:
“(2)
The registrar shall, within thirty days of receiving a notice of
appeal in terms of subrule (1)(d),
give notice in Part I of Form LC 2 to the respondent —
(a)
to complete in three copies a notice of response to the appeal in
Part II of Form LC2; and
(b)
to
do the following within fourteen days of the date when the registrar
gives
notice to the respondent under this subrule —
(i)
serve
one copy of the notice of response on the appellant:
and
(ii) file
with the registrar one of the other copies of the notice of
response,
together with proof (as required by rule 11) that the notice of
response was served on the appellant…”
[8] The
appellant failed to adhere to the rules of the court, and it later
filed its notice of response and heads of argument way out of time,
some 4 months after the registrar had given the appellant notice.
There is no evidence on record that an application for condonation
for late filing of the notice of response and heads of arguments was
made. It therefore follows that the court a
quo
granted
a default judgment in terms of Rule 22(b)(1) which provides as
follows:
“22
Where a party fails to file a notice of response
Where
notice has been given to a party to file a notice of response within
the period specified in rule 14, 15 or 16 and that party fails to
comply, the matter shall nevertheless be set down in terms of rule 21
and if, on the day of hearing, the defaulting party —
(a)…
(b)
does not appear or show good cause why he or she did not file a
response, the Court may, according to the nature of the case, or as
the justice of the case requires —
(i)
enter a default judgement against the defaulting party;”
[9] A
reading of the above provisions will show that a respondent who has
been served with a notice to respond by the registrar must file its
notice of response within 14 days and serve both the appellant and
the registrar. Failure to act in terms of the above rules of court
results in the offending party being barred and default judgment
entered against him at the discretion of the court. In
casu,
the appellant in the court a
quo
was barred from making submissions as it had filed its notice of
response out of time which fact the appellant admitted in its heads
of argument. It therefore followed that judgment was granted in
default. The court in Katritsis
v De Macedo
1966
(1) SA 613 (A) held that:
“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.”
[10] As
the judgment that was given by the court a
quo
was a default judgment in nature. The question that ought to be
asked is whether one can appeal on the merits before the bar has been
lifted. According to our law, a party cannot appeal against a default
judgment. The correct procedure would be for that party to make an
application for the judgment to be rescinded first. See Chintengo
v Tredcor & Anor
SC67/19. This approach was underlined by this Court in Sibanda
and Ors v Nkayi Rural District Council
1999
(1) ZLR 32 (S) where it 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.”
(My emphasis).
In
Zvinavashe
v Ndlovu
SC 2006 (2) ZLR 372 (S) it was held:
“The
defining feature of a judgement granted after a party fails to appear
is the default of the absent party… that decision remained a
default judgment whose setting aside could only follow a successful
application for its rescission.”
[11] This
Court again had the occasion to deal with a similar matter in Guoxing
Gong v Mayor Logistics (Pvt) Ltd and Anor
SC2/17
wherein Bhunu JA held as follows:
“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.”
[12] The
Appellant has invited this Court to deal with the merits of this
matter as it is seized with all the material facts it needs to make a
decision. He relies on the case of Madza
& Ors v The Reformed Church in Zimbabwe Daisyfield Trust &
Ors
SC71/14 wherein Ziyambi JA held as follows:
“This
court is always reluctant to decide matters at first and last
instance although it is quite possible that it may do so in
exceptional circumstances.”
Unfortunately,
this case does not fall into the category of 'exceptional
circumstances' as referenced above. There is nothing exceptional in
the circumstances, but rather what is there is a disregard of proper
practice and procedure that a default judgment can only be set aside
by its rescission. It follows that as this is not one of the
exceptional circumstances, this Court cannot be moved to hearing this
matter in the first and last instance. See Bakari
v Total Zimbabwe (Private) Limited
SC21/19.
DISPOSITION
[13] The
appellant having had default judgment entered against it and having
not taken steps to have it rescinded, that default judgment remains
extant. No appeal can lie against it. The present purported appeal
is improperly before this Court, and it is, accordingly, struck off
the roll with costs following the outcome.
GWAUNZA
DCJ: I
agree
BERE
JA: No
longer in office
Wintertons,
appellant's legal practitioners
Pundu
& Company, respondent's legal practitioners
