Elisha T. Shiripinda v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/797/14
HELD AT HARARE 6TH JUNE 2014
& 21ST NOVEMBER 2014
CASE NO LC/APP/H/16/14
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/797/14

HELD AT HARARE 6TH JUNE 2014			CASE NO LC/APP/H/16/14

& 21ST NOVEMBER 2014

In the matter between:-

ELISHA T. SHIRIPINDA				Appellant

Vs

CITY OF HARARE 					Respondent

For Appellant		Miss R. Peters (Legal Practitioners

For Respondent	Mr B. Furidzo (Legal Practitioner)

CHIVIZHE, J.

The matter was placed before me as an application for leave to appeal against a determination handed down by this court on the 1st April, 2009. The application is opposed.

The background facts to the matter are as follows;

The Applicant was employed by the Respondent. The parties through an agreement reached agreed to settle the matter out of court. An order of consent was granted by this court on the 1st of April, 2008. Exactly one year later on the 1st of April 2009 the Applicant lodged an application which Applicant termed on for quantification of the Applicant exit package. This court dismissed the application on the basis that the court was at that stage functus officio. The Applicant dissatisfied with the decision seeks leave to appeal against the decision.

Section 92 F (2) of the Labour Act [Cap 28:01] enjoins that a party seeking leave to appeal against a decision of the Labour Court can only appeal on a question of law. The Applicants prospective grounds of appeal are basically two

GROUNDS OF APPEAL

The court a quo grossly misdirected itself when it dismissed the Application for Quantification of the order it had granted on the grounds that it was functus officio when in terms of the applicable law it had jurisdiction to quantify its order for the purposes of both registration and enforcement.

The Court a quo erred by concluding that an application for quantification of its order was a fresh application.”

I am satisfied to the extent that the grounds of appeal raise the question as to whether or not the Labour Court had jurisdiction to quantify an earlier order granted by consent of parties, the appeal raises a question of law. It is trite the question as to whether or not a court/tribunal has jurisdiction 	to determine a matter before it is a question of law. In the judgement handed down on the 2nd of April 2014, this court found that in regards the application for an exit package placed before the court was functus officio. The basis for reaching this decision was that the parties had an the 14th of March 2008 mutually reached settlement. The parties had then drawn up a deed of settlement reflecting that agreement. This deed of settlement was then filed with the court and the court granted an order in terms of the settlement agreement.

When the applicant filed a fresh application that he referred to as ‘quantification of exit package’ the court was of the view firstly, the court having granted the consent order the court had become functus officio. The second reason was that although the application had been couched as an ‘application for quantification of an exit package’ the Applicant was actually asking the court to revisit the order granted in 2008 and make some adjustments thereto. The court was also being asked to compel enforcement of some of the provisions of the consent order where clearly the court was not empowered to do so.

The Applicant position in seeking leave to appeal is that this court erred, firstly when it found that the application for quantification was a fresh application. Secondly the court erred and misdirected itself by finding that it was functus officio in the circumstances of the matter. The Applicant further position is that the order granted by consent in 2008 had not ben quantified, resulting in the dispute that ensued between the parties. The order for an example did not clearly indicate in monetary terms how much the Respondent was to pay Applicant. It is Applicant further submission this court has powers to quantify orders which are otherwise granted by consent. The court was referred to decisions in Telecel Zimbabwe (Pvt) Limited Vs Mabare ZLR 36(S) and John Manyeruke Vs African Sun LC/H/31/02013.

In any event the Respondent was in his papers clearly admitting that it was still owing Applicant a balance of US$10 533.36. It was Applicant’s further submission that because it was still not clear how much was outstanding between the parties the court ought to have granted the application in order for that order to sound in money to enable its registration for enforcement purposes.

The Respondent counter-argued that the application for quantification despite its warding as such was not an application for quantification. The Applicant was seeking in the application to have the court revisit the consent order granted in 2008 and make adjustments thereto. This was clear as Applicant was seeking to have a recalculation of the figures. The consent order granted by the court was in any event quantified. The Applicant was in other wards seeking a second bite at the cherry. It was the Respondent’s further submission that the court could not properly exercise its jurisdiction in terms of Section 92 C of the Labour Act [CAP 28:01] as had been suggested by the Applicant because the application for quantification did not fall in any of the categories outlined by Section 92 C. Section 92 C allows for the Labour Court to upon application rescind or vary an order made either in default of the one party, which the court is satisfied is void or was obtained by fraud or mistake common to the parties or in order to correct a patent error. It was also Respondent view that the Applicant was merely seeking a recalculation in order to benefit from the United States dollar regime that was introduced after the parties reached consent.

Conclusion.

The proposed appeal raises question as to whether or not this Court had jurisdiction to quantify an order that was otherwise granted by consent. It is therefore a question which clearly ought to be referred to the superior court for the court to provide guidance. The court on the basis of submissions by the Applicant is persuaded that another court could come to a different conclusion as to whether the court had authority to quantify the order in the circumstances of this case.

Order

In the light of the above the application for leave to appeal against the Court’s judgement dated the 1 April, 2009 is allowed.