The first respondent was appointed as director of financial services for the Municipality of Chinhoyi on 6 January 2015. During the selection process, he failed to disclose that he had previously been convicted of defrauding his former employer of $804,549.00 and sentenced to 4 years imprisonment. When the Municipality discovered this information, it suspended the first respondent and set disciplinary processes in motion for 13 August 2015. When the first respondent indicated he would not be available on that date, the Municipality withdrew the charges and terminated his employment on three months' notice under common law. The first respondent approached the court under case HC 11471/15 and obtained a default judgment on 19 February 2016 directing the Municipality to reinstate him. The default judgment was served on 3 March 2016. The Municipality sought to rescind the judgment but filed the application on 2 June 2016, two months outside the 30-day time limit prescribed by Rule 63(1) of the High Court Rules, 1971. The delay was attributed to the attitude of the Municipality's then legal practitioners and internal bureaucratic processes.
1. The applicant's late filing of the application for rescission of judgment is hereby condoned. 2. The default judgment in HC 11471/15 is hereby rescinded. 3. The first respondent shall pay the costs of this application.
The binding legal principles established are: (1) For an applicant to succeed in an application for rescission of default judgment or condonation for late filing, it must satisfy the court that it has a reasonable explanation for the default or delay, that it acted bona fides, and that it has prospects of success on the merits (good and sufficient cause); (2) An employer has the right under common law and s 12(4) of the Labour Act to dismiss an employee on notice without proving fault or following disciplinary procedures; (3) Any court order for reinstatement of an employee must specify an alternative award of damages, as the common law principle prohibits compelling an employer to retain an employee where the employment relationship has soured beyond reconciliation; (4) A default judgment ordering reinstatement without the alternative of damages is defective at law; (5) The fact that an applicant has not complied with a court order does not necessarily bar it from seeking rescission of that order where the order is patently defective at law and no contempt proceedings have been instituted; (6) Strong prospects of success on the merits can be a decisive factor in granting condonation despite weaknesses in the explanation for delay.
The court made several non-binding observations: (1) Public bodies, like any other litigant, must comply with court rules and conduct their business with reasonable expedition and efficiency; (2) The absence of one official should not cripple the operations of a municipality or council; (3) Any prejudice suffered by an employee as a result of non-compliance with a reinstatement order can be addressed by way of an order sounding in money (damages); (4) The court commended both advocates (Mahere and Zhuwarara) for their incisive and competent presentation of their respective cases; (5) The court noted that the Municipality's determination to dismiss the first respondent was understandable given that he had betrayed the Municipality's trust in a fundamental way by failing to disclose his prior criminal conviction for fraud involving dishonesty, particularly given the high integrity required for positions involving handling large sums of public money.
This case affirms important principles in Zimbabwean labour and civil procedure law: (1) It reinforces the common law right of employers to dismiss employees on notice without following disciplinary procedures, as established in Nyamande v Zuva Petroleum; (2) It emphasizes that any court order for reinstatement must include an alternative award of damages, in line with the deep-seated common law principle that employers cannot be compelled to keep employees where the employment relationship has broken down irretrievably; (3) It demonstrates that where a default judgment is patently defective at law, the court will exercise discretion to grant rescission even where the explanation for delay is not entirely satisfactory, particularly where prospects of success on the merits are very high; (4) It clarifies that public bodies, despite having statutory requirements and bureaucratic processes, must still comply with court rules with reasonable expedition and efficiency.