HARARE – FBC Bank Limited’s bid to appeal a Labour Court ruling has been rejected by the Supreme Court of Zimbabwe, upholding the lower court’s decision to strike off the bank’s application for rescission of a default judgement in a labour dispute with former employee Kudzai Kwangwari.
The case stemmed from a labour dispute between the bank and Kwangwari who had successfully appealed his dismissal at the Labour Court, but FBC Bank, citing an error in their records, failed to attend the hearing, resulting in a default judgment against them.
FBC Bank filed an application for rescission of the default judgement, which was later struck off the roll by the Labour Court on preliminary points. The bank then sought leave to appeal this decision to the Supreme Court.
In a chambers hearing, Justice Tendai Uchena of the Supreme Court dismissed FBC Bank’s application.
The court found that the bank’s intended notice of appeal contained a fatally defective relief sought, as it requested the Supreme Court to grant the rescission of the default judgement, a decision that the Labour Court, having only dealt with preliminary issues, could not have made.
The Supreme Court further ruled that it could not interfere with unterminated proceedings of the lower court.
Justice Uchena stated that superior courts should only intervene in ongoing proceedings in exceptional circumstances, such as proven gross irregularities or clearly wrong interlocutory decisions.
The court found that the Labour Court’s decision did not meet these criteria, as FBC Bank still had the option to re-apply for rescission of the default judgment at the Labour Court.
The Supreme Court also addressed other points raised, including the bank’s locus standi, which was upheld, and the issue of appealing against obiter dicta, which was not permitted.
The court also noted the divergence of views within prior supreme court rulings regarding the ability to amend defective applications, and allowed the application to proceed despite the defects, rather than ruling the application fatally defective.
“The decision of the court a quo cannot be said to be clearly wrong, and the applicant’s counsel agreed that the applicant can re-apply for rescission of the default judgment to the Court a quo.
“The alleged irregularity by the court a quo does not go to the root of the proceedings, nor does it irreparably vitiate them,” Justice Uchena ruled.
“There is therefore no justification for interfering with the unterminated proceedings. The application for leave to appeal against the decision of the Court a quo should be dismissed.”
The application for leave to appeal was ultimately dismissed with costs, effectively upholding the Labour Court’s decision to strike off FBC Bank’s application for rescission.
