Getrude Sigauke v Minister of Primary and Secondary Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/157/2021
HARARE, 19 JULY, 2021
CASE NO. LC/H/APP/848/18
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/157/2021

HARARE, 19 JULY, 2021		     	     CASE NO. LC/H/APP/848/18

AND 8 OCTOBER,2021

In the matter between:-

GETRUDE SIGAUKE							Applicant

Versus

MINISTER OF PRIMARY AND SECONDARY			Respondent

EDUCATION

Before The Honorable L. Hove, Judge:

For Applicant:	Muracho G. K (Legal Practitioner)

For Respondent:	L. T. Muradzikwa (Civil Division)

HOVE J:

This is an application in terms of section 92C of the Labour Act [Chapter 28:01] (the Act). The applicant seeks to have this court vary a decision by another Judge of this court.

The background is that the applicant was employed by the respondent and was dismissed in June 2004. After following internal processes unsuccessfully, the applicant appealed against the decision to dismiss him to the Labour court in 2005. The applicant lost his appeal in the Labour court and decided to appeal to the Supreme court. The Supreme court struck off the appeal from its roll on the basis that the decision of the Labour court had dealt with a non-existent legal entity. The applicant had brought the suit against the Ministry of Education and Culture when in terms of law, the Minister of Education, Sports and Culture ought to have been cited as a nominal respondent. After the matter had been struck off the Supreme court Roll, the matter was laid to rest until the applicant engaged his current lawyers in February 2018 who advised him that he had a remedy. This remedy was to take the matter back to the Labour court and seek variation of its judgment of October 2009.

This application is being made now in terms of section 92C of the Act.

Section 92C of the Act provides for the rescission or alteration by the Labour court of its own decisions as follows;

“(1)	Subject to this section the Labour court may, on application rescind or vary any determination or order-

a)	-----

b)	-----

c)	in order to correct a patent error”.

The issue that arises is whether or not there is a patent error. An error is a mistake or a state of being wrong. It is clear in casu that the applicant in citing the respondent, made an error. The error on the part of the applicant was also a patent one it was obvious that the respondent had been wrongly described.

The applicant argued that on the basis of this patent error, the court must correct its own decision handed down in 2009. It was further argued that no prejudice will be suffered as no new party is being brought before the court. Reliance was placed on the case of Rugava v Star Lotto Zimbabwe (Private) Limited HB38/14. The court quoted Gowora J’s (as she then was) findings in Old Mutual Asset Management Pvt Ltd v F & R Travel Tours and Car Sales in HH 53/07 where she stated as follows;

“It is trite that an amendment even where it is intended to substitute a party will be granted unless the application to amend in mala fide or would cause prejudice to the other side which cannot be cured by costs”.

The position taken by the authority relied on is the position of law, the only problem however is that this is not an application for an amendment when a party is incorrectly described. This is an application for the court to engage itself in a matter that it dealt with to finality some 12 years ago. Can the court lawfully do that, I think not. In the case of ZESA Holdings (Private) Limited v ITAYI UTAH SC 32/8 the Learned Judge stated that;

“Section 98 (9) of the Labour Act [Chapter 28:01] provides that;

‘(9)	In hearing and determining any dispute an arbitrator shall have the same powers as the Labour court’.

Thus when an arbitrator makes an award, his position is akin to that of

a court of law. A court is defined to mean all its Judges sitting alone or with other Judges. This is because they have the same powers and exercise parallel jurisdiction …. Accordingly the Res judicata or functus officio legal principles will apply should the matter be brought before the same or a different Judge, or in this case, arbitrator”.

The Court in the above cited case, was referring to an arbitrator’s decision which had been brought before a different arbitrator after the dispute had been finalized by the initial arbitrator. The current dispute was brought before a Judge of the Labour court and a decision, a final decision was pronounced by the Labour court. It cannot be brought back before the same court. The court in my opinion is functus officio.

In Unitrack (Pvt) Ltd v Telone (Pvt) Ltd SC 10/18 Mavangira AJA as she then was held as follows;

“It is a general principle of our law that once a court or judicial office renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or legal authority to re-examine or revisit that decision. Once a decision is made, the term ‘functus officio’ applies to the court or judicial officer concerned”.

In Kassim v Kassim 1989 (3) ZLR 234 (H) at 242 the court held that;

“In general the court will not recall, vary or add to its own judgment once it has made a final adjudication on the merits. The principle is stated in Firestone South Africa (Pvt) Ltd v Genticuro Ag 1977 (4) SA 298 (A) at 306, where Trollip JA stated;

‘The general principle, now well established in our law, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. The reason is that it thereupon becomes functus officio, its jurisdiction in the case having been fully and finally exercised its authority over the subject matter has ceased”.

In the ZESA Holdings case (supra) the learned Judge also stated that the other reason why the court cannot revisit its decision once it has finally pronounced itself is the equally important consideration is the public interest in bringing litigation to finality. The parties must be assured that once an order of court has been made, it is final and they can arrange their affairs in accordance with that order.

The applicant argued that the court must amend its decision in the interest of justice. The interests of justice demand, in my opinion, that a final decision be made by a court. The court’s decision cannot be sought to be amended more than 10 years later. This will seriously prejudice the other side and the prejudice cannot be cured by an order of costs.

The legislature has indeed authorized the alteration of judgments of the court by the same court in terms of section 92C. But this cannot be an authority that can be exercised so long after the decision was made. This would militate against the legal principles entranced in our law. The applicant in casu ought to have applied to amend the incorrect citation before the final judgment was pronounced or within 30 days after the judgment had been issued but she chose to wait for more than 10 years before applying to correct her error. This is unacceptable.

In the result, the application fails on the basis that the court is functus officio.

Order

The application is dismissed.

Each party will bear its own costs.

Messrs Atukwa Attorneys	-	Applicant’s Legal Practitioners

Civil Division of the Attorney Generals’ Office – Respondent’s Legal Practitioners