Zimbabwe Anti-Corruption Commission v Servious Kufandada & 25 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/23/16
HELD AT HARARE 12TH JANUARY 2016
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/23/16

HELD AT HARARE  12TH JANUARY 2016			CASE NO LC/H/APP/438/15

& 22ND JANUARY 2016

In the matter between:-

ZIMBABWE ANTI-CORRUPTION COMMISSION			Applicant

And

SERVIOUS KUFANDADA & 25 OTHERS				Respondents

Before The Honourables L Kudya, Judge

L M Murasi, Judge

For Applicant			Mr I Ndudzo (Legal Practitioner)

with Mr G Gomwe

For Respondents		Mr S Banda (Legal Practitioner)

MURASI, J:

This is an application in terms of section 92 C of the Labour Act [Chapter 28:01].  It is an application to have the judgment of the court corrected as it is alleged that there is an error in the final order of the court.  Mr Ndudzo for the applicant submitted that whilst the order of the court may be sound it is the implication in the interpretation of paragraph (c) thereof that is problematic.  Mr Ndudzo further stated that a reading of the order would entitle respondents to benefits which were not extant at the time of their appointments.  It was argued that some of the benefits which the respondents were meant to enjoy were only conferred later after the date of appointment.  It was further argued that a reading of the order would entitle the respondents to enjoy these benefits with retrospective effect which is not what was intended in the judgment.  Mr Ndudzo further submitted that this would indeed have the effect of re-writing contracts between the parties which the courts frown upon.  Mr Ndudzo submitted that the amendment to the order would be in paragraph (c) which should indicate that the benefits were to be with effect from the dates conferred on respondents in terms of the contracts of employment.

Mr Banda for the respondents stated that he abided by the documents filed of record.  He stated that there was no patent error in the decision of the court.  It was further submitted that the body of the judgment was consistent with the operative part of the order.  He urged the court to decline to accept the submissions of the applicant because they lacked merit.  Mr Banda also referred the court to applicant’s Founding Affidavit which he stated was materially different from the request that Mr Ndudzo was now making before the court.  He stated that it is trite that an application stands or falls based on the papers filed and not on submissions from Counsel.

This matter is slowly joining the queue of statistics which show the wheels of justice moving at a snail speed.  The matter has been going up and down the corridors of justice with seemingly nothing being finalised.  This is an untenable situation.  It is pertinent that when parties consider the litigation route, especially in such matters where there is an employment relationship, parties should be able to engage each other before embarking on the litigation route.  This obviously saves both time and resources.

In casu, applicant makes an application to correct a “patent error”.  From the submissions by appellant, it may be read that it has no qualms with the decision of the court save for the operative part of the order.  Applicant’s counsel alleges that a reading of paragraph (c) would give the respondents an enjoyment of benefits with retrospective effect.  There is no indication that the two parties engaged each other with a view to finding what the other’s position on the matter was.   In any event no evidence of such engagement was placed before the court.

What are the contents of paragraph (c) which applicant is uncomfortable with?  It reads as follows:

“The benefits listed in paragraph (b) above to be paid with effect from the date of appointment in terms of the contracts of employment.”

Unfortunately the respondents’ counsel did not indicate what he understood the order to mean.  It is also my view that the applicant is not calling for the court to interpret its own judgment.  It is applicant’s averment that on the respondents may “clutch” at this order and reap benefits which are not due to them.  The court is of the view that this does not amount to a “patent error” as alleged.  The question is, how should this issue be resolved?  The court has already alluded to the fact that this matter has dragged along for an inordinate time without resolution.  In order to bring the matter to finality the court will amend the order in paragraph (c) so that, in the interest of justice and equity no room for confusion is left.

In the result, it is ordered that:

The court’s order in Case No LC/H/132/13 be and is hereby corrected by the deletion of paragraph (c) of the order which should read as follows:

“(c) The benefits listed in paragraph (b) above to be paid with effect from the dates awarded to the respective respondents in terms of the contracts of employment.”

That there be no order as to costs.

MURASI J   …………………………………..

KUDYA J    ……………………………………		I agree

Mutamangira & Associates,  applicant’s legal practitioners

Mambara & Partners, respondent’s legal practitioners