Raphael Manomano v Chitungwiza Municipality and Mercy Dare N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/119/23
HARARE 16 FEBRUARY 2023
CASE NO LC/H/1109/22
And 28 APRIL 2023
JUDGMENT NO LC/H/…./23
CASE NO. LC/H/1109/22
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IN THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/119/23

HARARE 16 FEBRUARY 2023	                            CASE NO LC/H/1109/22

And 28 APRIL 2023

In the Matter between

RAPHAEL MANOMANO					APPLICANT

And

CHITUNGWIZA MUNICIPALITY			1ST RESPONDENT

And

MERCY DARE N.O.					2ND RESPONDENT

For the Applicant 	            : In Person

For the 1st  Respondent	:Mr T.Mupamhadzi (Legal Practitioner)

For the 2nd Respondent	: No Appearance

MAKAMURE J.

This is an application for leave to appeal a judgment of this Court. It is opposed by the 1st respondent. There was no appearance on behalf of the 2nd respondent. The 2nd respondent is a nominal party to the proceedings with no interest in the outcome.

The 1st respondent had preliminary issues to raise. However at the commencement of the hearing Mr Mupamhadzi who appeared on behalf of the 1st respondent took the position that in the interests of justice the merits of the application be considered. The preliminary issues were therefore abandoned. That was realistic consideration to make and Mr Mupamhadzi is to be commended for adopting that stance.

The background of this matter is that the applicant is a former employee of the first respondent .The two parted ways. When they so parted ways there were some sums of money due to the applicant from the first respondent. This is not disputed. The first respondent did not fulfil its obligations to pay the applicant. This led the applicant to approach a labour officer ,2nd respondent, in terms of s93(5a)and (5b) of the Labour Act,[Chapter 28:01] (the Act).The 1st respondent did not deny its liability, as a result a ‘ Certificate of Settlement’ was signed before the second respondent. This Certificate of Settlement can be likened to an acknowledgment of debt or judgment by consent.  Even after signing the Certificate of Settlement the 1st respondent did not fulfil its obligations. As a result of the failure by the first respondent to honour its obligations the 2nd respondent brought the matter as a draft ruling which had to be confirmed by this Court as require by s93(5a)&93(5b) of the Act. At the time that the matter was brought for confirmation proceedings the law did not provide for the presence of the employee as a party to proceedings before this Court. The draft order was confirmed as an order of this Court. On appeal to the Supreme Court that decision was set aside and the Court was ordered to hear the matter afresh after the second respondent had been joined as a party to the proceedings.

At the second hearing the present applicant was party to the proceedings.as an order of this Court. The draft ruling and order which was made by the 2nd respondent was confirmed .The applicant was aggrieved by that order. The applicant applied for alteration of that judgment in terms of s92C of the Act. The applicant brought some figures which he wanted to be part of the order. The Court held the view that it had become functus officio and the alteration sought was not just a typographical or mathematical error. The Court therefore dismissed that application .This is the judgment being challenged.

This Application

An application for leave to appeal a judgment of this Court is provided for in s92F of the Act as follows:

‘92	F Appeals against decisions of Labour Court

An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.’

Submissions by the Applicant.

The applicant is unrepresented. However his address of service is “care of…” and indicates the address of another person. It is not clear whether or not he is getting assistance from the person based at that address. I say so because while in court the applicant was getting pieces of paper handed to him from persons who were  in the gallery and in the process he tended to pay attention to these notes which notes did not seem to help him much except to derail his trend of thought.  I found this to be a cause for concern. Persons who advise litigants before this Court must be the ones provided for in s92 of the Act and should be prepared to address the court themselves instead of advising a litigant from the gallery. I believe that the applicant should obtain professional legal advice. I am particularly concerned with the present matter and how long it  is  taking to reach finality and also the reality that our currency is changing value on a regular basis. When a litigant has got a judgment in their favour,  the expectation is that it is executed as soon as practicable in order for them to enjoy the value of that judgment. That having been said the application must still meet the requirements set by law.

The applicant in his heads of argument submitted that there is a patent arithmetical error in this Court’s judgment LC/H 50/2022. However when he addressed the Court he emphasized the repealed Rules of the Court, Statutory Instrument 59/2006.The purpose of an application for leave to appeal was explained to him particularly the need to point out where the court erred where a different court would make a different finding from the one under scrutiny. This did not help. When it was the 1st respondent’s turn to address the Court Mr Mupamhadzi held the view that in the interests of justice it would be unfair of him and for him to make a response where the applicant had not made any submissions on the requirements to be met by an applicant in an application of this nature. The Court once again urged the applicant to address the requirements to be met when an application for leave to appeal is made. The applicant responded by drawing the court’s attention to paragraph 3 of his heads of argument. Paragraph 3 of the applicant’s heads of argument states that his submissions are restricted to points of law and  then reference is made to his founding affidavit and answering affidavit. In paragraph 31.5.2 of his heads of argument the applicant submitted that the Court ought to have been guided by the provisions of s71 of the Constitution of Zimbabwe. S71 of the Constitution deals with property rights. What the applicant did not do is to draw the court’s attention to the specific paragraphs in his heads of argument which point to the requirements to be met.

Submissions by the Respondent

It was submitted on behalf of the respondent that the applicant had failed to motivate why the court should grant the application. Mr Mupamhadzi argued that the court, at the time that the application for alteration of judgment was made, had become functus officio and that this had been fully explained to the applicant. The applicant wanted new figures to replace the figures in the original judgment. This amounted to a retrial. This was not competent submitted Mr Mupamhadzi. Mr Mupamhadzi relied on the case of Firestone SA v Genturo 1977(4) SA 298A which he quoted in paragraph 2.2 of his heads of argument where the court stated that the following are the exceptions where a court can correct its own judgment:

‘(i)	The principal judgment may be supplemented in respect of accessory or consequential matters for example costs or interest on the judgment debt which the court overlooked or inadvertently omitted to grant.

(ii)	The court may clarify its judgment or order if on a proper interpretation the meaning thereof remains obscure , ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter the sense and substance of the judgment or order.

The court may correct a clerical, arithmetical or other error on its judgment or order to give effect to its true intention.’

It was Mr Mupamhadzi’s submission that the applicant was required  to put a forward a probable case which would cause a different court to come to a different conclusion. Mr Mupamhadzi argued that the applicant in paragraph 5 of his heads of argument referred to r36 of SI 59/2006 .Further on in the same heads the applicant referred to the application being made in terms of s92F of the Act. The applicant then rereferred to ss 71(3) and 71(4) of the Constitution. Mr Mupamhadzi submitted that this Court is a creature of statute and the applicant needed to be clear with respect to in terms of which statute the application was being made. Mr Mupamhadzi further submitted that the sections quoted by the applicant were mutually exclusive and therefore the 1st respondent was not clear on what to answer. Mr Mupamhadzi further argued that it is trite that an application stands or falls on its founding affidavit. (Alfred Muchini v Elizabeth May Adams & Others SC47/2013). It was the argument on behalf of 1st respondent that in the present case it was  not  clear as to  what application was before the court and had to be decided on. Mr Mupamhadzi submitted that the applicant brought a frivolous application and that it must be dismissed with costs.

In response Mr Manomano pointed out the maybe his argument did not meetMr Mupamhadzi’s level but he as applicant remained bound by his founding affidavit and heads of argument .He submitted that the doctrine of functus officio did not apply.

Analysis

In an application for leave to appeal, it must be shown that the applicant has  prospects of success, see Chikurunhe and Others v Zimbabwe Financial Holdings  SC	10/08.In Samuel Undenge v The State SC 23/21 the Supreme Court held that the question of there being prospects of success on appeal is the overriding consideration. I can do no better than refer to the case of Hurungwe Rural District Council v (1) Joram Misheck Moyo (2) Karol Mutenga (3) Jackson Mashinge SC 37/21 which is one of the numerous cases where the Supreme Court considered the purpose of an application for leave. This is what the Court said:

‘In Ngambizi v Murowa Diamonds (Pvt) Ltd 2013 (1) ZLR 569 (S) at 572 G, when dealing with the purpose of an application for leave to appeal in terms of s 92F(2) of the Act, the court made the following apposite remarks:

“It is important to relate the requirement for an application for leave to appeal to the purposes thereof.  These are for the decision to be made on the questions whether the grounds of appeal relate to questions of law and the existence of prospects of success on appeal.”

In light of that, two issues arise for determination namely whether the intended notice of appeal raises questions of law and whether the proposed appeal has reasonable prospects of success.

Thus, where the applicant raised appoint of law, he was also required to address the question of prospects of success. In his address he did not address the prospects success.

Conclusion

In the present case the applicant did not address the purpose of the application. It is noted that he is aggrieved that the court held that it had become functus officio. In the judgment being appealed the applicant brought in what the court considered to be new figures and not a correction of a clerical or arithmetical error which the court had made. The court thus considered itself to have become functus officio. In Firestone South Africa (Pty) Ltd v Genturo AG 1977(4) SA 298 the court held that (Headnote):

‘… 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. There are, however, a few exceptions to that rule. Thus, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases. (1)The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, that the court overlooked or inadvertently omitted to grant. (2)The court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter “the sense and substance” of the judgment or order. (3) The court may correct a clerical or arithmetical, or other error in its judgment or order so as to give effect to its true intention. This exception is confined to the mere correction of an error in expressing the judgment or order; it does not extend to altering its intended sense or substance. (4)Where counsel has argued the merits and not the costs of a case(…) but the court in granting judgment, also made an order concerning the costs, it may thereafter correct , alter or supplement that order.’

Having taken the view that what the applicant sought was not a correction as envisaged by the Act or as articulated in the authority cited above, I hold the view that a different court faced with the same facts will not reach a different conclusion. The applicant does raise a question of law. However the prospects of success are slim. The applicant  raised questions related to the Constitution. I have however confined myself to the provisions of the Act within whose confines this Court operates.

Under the circumstances I agree with Mr Mupamhadzi that this application has got no merit. In the result the application fails.

Accordingly, it is ordered that:

The application for leave to appeal be and is hereby dismissed with costs.

Matsikidze Attorneys – At- Law, Respondent’s Legal Practitioners.