THE SUSTAINABLE AFFORESTATION ASSOCIATION OF ZIMBABWE v MASANGO (18 of 2026) [2026] ZWLC 18 (26 January 2026)

**IN THE LABOUR COURT OF ZIMBABWE** **JUDGMENT NO LC/H/18/26** **HARARE,****21 JANUARY, 2026 and** **26 JANUARY 2026** **CASE NO LC/H/1097/25** **THE SUSTAINABLE AFFORESTATION APPLICANT** **ASSOCIATION OF ZIMBABWE** **THOMAS MASANGO****RESPONDENT** Before the Honourable G. Musariri, Judge: For Appellant \- G. Makings, Attorney For Respondent - W. T. Mupiwa, Attorney **MUSARIRI, J:** At the onset of oral argument in this appeal, Respondent raised three points _in limine_ which Appellant opposed. The points will be addressed _ad seriatim._ **1.**_**That Appellant improperly introduced new evidence through it heads of argument**_ _:_ Appellant’s heads of argument filed on 3 December 2025 introduced an **Annexture 1** said to contain the new policy on Daily subsistence Allowance (DSA). The document was not produced before the tribunal _a quo_. **Section 90 A** of the **Labour Act**[**Chapter 28:01**] (hereafter called the **Act**) provides that, “ _(1) The Labour Court shall not be bound by the strict rules of evidence, and the court may ascertain any relevant fact by any means which the presiding officer thinks fit and which is not unfair to either party.”_ Though the Court may admit the document _in casu_ under the above provision, it is considered unfair to Respondent to do so. This is because the document was introduced in the last filing in this Court by Appellant at a time when Respondent could not properly respond by way of affidavit. The Respondent was thus unfairly ambushed. 2._**That appellant cannot appeal against a default judgment**_ : Respondent argued that as the arbitration award was made in appellant’s absence it amounts to a default judgment. It was further argued that a default judgment can only be challenged by a way of an application to the arbitrator for its rescission, Appellant countered that though it failed to attend the hearing, the arbitrator nonetheless determined the matter on the basis of documens filed by the both parties so the award is not really a default judgment. The Court is persuaded by respondent’s argument which finds support in the _dicta_ in the case of _**Zvinavashe v Ndlovu 2006 (2) ZLR 372 (S)**_ __ Per Gwaunza DCJ At 374D “ _Although the parties cited cases … as authority for the proposition that a default judgment cannot be appealed against. Rather the proper procedure is for the aggrieved to seek rescission of the judgment.”_ At **375G** “ _For the avoidance of doubt, it is declared that the giving of reasons for the default judgment in question, by the court a quo, was unnecessary and consequently, of no force or effect. It does not convert the default judgment into a judgment on the merits.”_ In terms of **section 98 (9)** of the**Act** , an arbitrator has “the same powers as the Labour Court.” This Court has power to rescind default judgment in appropriate cases. Therefore Appellant’s recourse at this stage lies with the arbitrator who has similar power to rescind his award granted in default. 3._**That the appeal does not raise any point of law**_**:** In light of the Court’s take on the second point _in limine_ , it is unnecessary to deal with this point. **Conclusion** The foregoing analysis shows that the appeal to this Court is incompetent and thus ought to be stuck off. **Wherefore it is ordered that;** 1. **The Respondent’s 2****nd****point** _**in limine**_**be and is hereby upheld;** 2. **The appeal is hereby struck off as incompetent; and** 3. **Each party shall bear its own costs.** **G. MUSARIRI** **J-U-D-G-E** 1