Rango Chomusora v People's Own Savings Bank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/547/2016
HARARE, 21 JULY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/547/2016

HARARE, 21 JULY 2016  	  		      CASE NO. LC/H/APP/245/16

AND 9 SEPTEMBER 2016

In the matter between:-

RANGO CHOMUSORA						Applicant

And

PEOPLE’S OWN SAVINGS BANK				Respondent

Before Honourable P. Muzofa, Judge

For Applicant		Ms Majena (Trade Unionist)

For Respondent		A.T. Muza (Legal Practitioner)

MUZOFA, J:

On 21 July 2016 I dismissed an application by the applicant for alteration of an order.  The application was made in terms of Rule 33 of the Labour Court Rules, 2006.

The following are the reasons for dismissal of the application.

In order to place this matter into perspective I should set out the background to the case.

The applicant was an employee of the respondent.  Following allegations of misconduct, applicant was charged in terms of the respondent’s Code of Conduct.

Applicant was found liable and the employment contract was terminated.  The applicant appealed to the NEC Appeals Board “the Board”.  The Board after considering the matter remitted the case to the respondent to address the procedural irregularities identified by the Board.  The Board did not address the merits of the case.

The respondent then appealed against the decision of the Board.  On the date of hearing, the applicant’s representative conceded that the appeal was meritorious.

Parties were not in agreement as to the appropriate remedy.  For the applicant it was submitted that the matter should be referred back to the Board to deal with the matter on the merits.

The respondent wanted the decision of the Board set aside and the decision of the disciplinary committee upheld.

Subsequently applicant’s representative requested for on adjournment for parties to engage.  The matter was adjourned.

On resuming respondent’s representative being the appellant in that case submitted that parties agreed that the appeal be upheld and the decision of the Board set aside.

Applicant’s representative confirmed the position.

To that extent the court made the following order which was read to the parties,

“1.	By consent the appeal be and is hereby upheld with costs.

2.	The decision of the NEC be and is hereby set aside.”

Following this order, the applicant filed this application for the alteration of the order to include,

“3.	The matter be remitted to the Appeals Board for determination on the merits.”

The basis of the application is that the Court order constituted a patent error that exposed the applicant to irreparable harm.  The harm being that applicant would have no recourse for the matter to be dealt with on the merits.

Section 92C (c) empowers the court to vary its order to correct any patent error.  A patent error is one which is obvious and the order should not have been so issued.  In order for the application to succeed there must be a common mistake, in regard to which the parties were ad idem.

In this case the parties are not in agreement that there was a patent error.

Respondent opposed the application on two points.  Firstly that the order was a true reflection of the parties’ agreement.

Secondly that the requirements for setting aside an order by consent were not satisfied.

I agree with the respondent.  The parties agreed to the terms of the order.  The court accordingly recorded the order by consent.  I did not hear the applicant claim that the term he seeks to be included in the order of the court was part of the agreement between the parties.  The remittal was never mentioned as part of the order by consent.

Applicant clearly realized that the concession was not properly made and seeks to impugn the court order.  There was no patent error in so far as the order by consent as confirmed by applicant’s representative is concerned.

It might be that applicant finds himself in a quandary as to the next step to take.  That cannot be cured by an alteration of the court’s order in terms of this application.

The application is misplaced.

Respondent requested for costs on a higher scale on the basis that this application is an abuse of court process particularly in that applicant seeks to alter an order he consented to.  To that extent the respondent has incurred unnecessary legal costs.

I agree with the respondent.  Despite the fact that applicant has a right to protect his interest that should be done within reason.

In casu applicant conceded to the terms of the consent order.  However he turns around and accuses the court of making a patent error.  The court cannot shoulder the blame of an improperly made concession.

The applicant was well aware of what he agreed to.

I will therefore grant the costs on a higher scale.

Accordingly the following order is made.

The application for alteration of an order be and is hereby dismissed with costs on a higher scale.

Mawere Sibanda, respondent’s legal practitioners