OK Zimbabwe Limited v Benjamin Tazvivinga

The respondent was employed by the appellant as a till operator. On 30 June 2015, following a scuffle with a customer over change, a spot check revealed a $45 shortfall in the respondent's till. The respondent provided a report stating the shortfall was due to $50 given to a fellow operator (Nancy Chawanza) who forgot to return it, and that he had given a customer $180 cash back instead of $130, which was later returned and replaced without notifying supervisors. The respondent was charged with deliberately giving untrue or incorrect information and unsatisfactory work performance. After a disciplinary hearing, he was found guilty and dismissed. Appeals to the Local Joint Committee and National Employment Council for the Commercial Sections (NEC) upheld the dismissal. The respondent appealed to the Labour Court on 1 June 2016. The appellant failed to file a notice of response within the stipulated 14 days, only attempting to do so 4 months later on 18 October 2016 with heads of argument, despite receiving a letter from the registrar. The Labour Court entered default judgment against the appellant in terms of Rule 22(b)(1) of the Labour Court Rules, 2006. The appellant then appealed to the Supreme Court.

• Whether a default judgment entered by the Labour Court is appealable
• Whether an appeal lies against a default judgment without first seeking its rescission
• Whether the court a quo erred in entering default judgment despite the late filing of a notice of response
• Whether the court a quo erred in failing to give reasons for the default judgment

The appeal was struck off the roll with costs awarded to the respondent.

A default judgment cannot be appealed directly to an appellate court. The proper procedure for challenging a default judgment is to first make an application for rescission of that judgment in the court that granted it. An appeal against a default judgment, without first having it rescinded, is improperly before an appellate court and will be struck off the roll. The failure to file court documents within prescribed time limits without seeking condonation results in a party being in default, and any judgment entered in such circumstances is a default judgment subject to rescission procedures rather than direct appeal.

The Court noted that while it is possible for the Supreme Court to decide matters at first and last instance in exceptional circumstances (citing Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust & Ors SC 71/14), the present case did not fall into that category. The Court observed that what was present was merely a disregard of proper practice and procedure, not exceptional circumstances warranting the Court's intervention. The Court also observed that default is not confined to failure to file necessary documents or appear when the case is called, but also comprises failure to attend court during the hearing of the matter (citing Katritsis v De Macedo 1966 (1) SA 613 (A)).

This case reinforces the fundamental principle in Zimbabwean civil procedure that no appeal lies against a default judgment without first seeking its rescission. It clarifies proper procedural requirements when a party fails to comply with court rules regarding filing of responses, and emphasizes the importance of following correct procedures before approaching appellate courts. The judgment serves as an important reminder that appellate courts will not entertain appeals against default judgments as a substitute for proper rescission applications, except in exceptional circumstances which must be clearly demonstrated.