Court name
Supreme Court of Zimbabwe
Case number
SC 5 of 2005
Civil Appeal 64 of 2004

Matanhire v BP Shell Marketing Services (Pvt) Ltd. (64/04) (SC 5 of 2005, Civil Appeal 64 of 2004) [2005] ZWSC 5 (14 February 2005);

Law report citations
Media neutral citation
[2005] ZWSC 5




REPORTABLE (4)

















Judgment No SC 5/05


Civil Appeal No 64/04

















PASSMORE
MATANHIRE v B. P. SHELL MARKETING SERVICES
(PRIVATE) LIMITED











SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
ZIYAMBI JA & MALABA JA


HARARE JANUARY 31 &
FEBRUARY 15, 2005








T. Muskwe, for
the appellant





W. Ncube, for
the respondent












CHIDYAUSIKU CJ: This is an appeal against a determination of
the Senior President, C. Bhunu, (as he then was) of the Labour
Court.
The facts of this case are common cause and are ably set out in the
heads of argument of the respondent’s counsel. They
are as
follows:





On 4 September 1998
the respondent suspended the appellant from employment without pay on
allegations of smuggling of rhino horns
and dealing in precious
metals or, alternatively, fraud or forgery or theft, bribery or
corruption.





On 22 September 1998
the appellant appeared before a Disciplinary Committee. He was
found guilty of non-disclosure of owning a
company and of trading in
precious stones on the black market in violation of the company’s
Code of Conduct. His contract of
employment was terminated with
effect from the date of his suspension.





On 23 October 1998
the appellant appealed to the Labour Relations Tribunal, now the
Labour Court.





On 6 April 1999 the
respondent issued summons in the High Court against the appellant
claiming payment of the sum of $290 914,70,
being the amount of loans
advanced by the respondent to the appellant during the course of his
employment. The appellant defended
the claim. By April 2000 the
High Court matter reached the Pre-trial Conference stage and came
before SMITH J.





On 11 April, SMITH J
issued a consent judgment on the basis of a settlement reached by the
parties. Both legal practitioners representing
the parties signed
the consent order on behalf of their clients. The consent order
provides as follows:-






“SMITH J: The defendant was employed by the plaintiff. In
September 1998 the plaintiff suspended the defendant and applied
to a
labour relations officer for approval to dismiss him. The matter
has now been referred to the Labour Relations Tribunal which
has a
tremendous back-log. The plaintiff issued summons claiming from the
defendant repayment of a vehicle loan ($197 760,00),
an essential
services loan ($357, 87) and an educational loan ($92 795,83) – a
total of $290 914,70. The parties have agreed that the plaintiff
will withdraw its claim on the following basis
–






(a) if the Labour Relations Tribunal determines that the dismissal of
the defendant was not lawful, the defendant shall not be liable
to
repay the loans and the plaintiff shall pay the defendant’s costs
of suit but shall not be liable to pay damages for the unlawful
dismissal;





(b) if the Labour
Relations Tribunal determines that the dismissal of the defendant was
lawful, the defendant shall be liable to pay
the plaintiff $290 914,
70 with interest thereon at 25% per annum from 19 March 1999 to date
of payment and costs of suit.”


(the underlining is
mine)









This court order is
very clear and admits no ambiguity. It simply means that the
respondent was withdrawing its case against the
appellant on the two
conditions set out in the order, namely, that in the event of the
Labour Relations Tribunal concluding that
the appellant was
unlawfully dismissed, the appellant would not be liable to repay the
loans that were due and owing to the respondent
while the respondent
would not be liable to pay damages for the unlawful dismissal. It
is clear that the parties agreed that the
damages for unlawful
dismissal would be set off against what the appellant owed the
respondent by way of loans.






It is also clear from the consent order that in the event of the
Labour Relations Tribunal coming to the conclusion that the appellant
was lawfully dismissed the appellant would be liable to pay the
respondent the amount of $290 914,70 with interest at the rate of
25%
per annum from 19 March 1999 to date of payment and costs of suit.





The Labour Court matter
was set down for hearing on 7 March 2002. At the hearing of the
matter the following order was issued by
the Presiding Officer:-






“It is ordered that the matter be and is hereby postponed sine
die
to enable the appellant to seek directions from the High
Court.”












It was contended, and
not disputed, that the postponement was at the instance of the
appellant who wished to apply to the High Court
for directions.






The appellant thereafter filed a Chamber Application to the High
Court in terms of Rule 151 Order 23. That Rule provides as
follows:-







“151.Application for directions after pleadings closed: notice
to opposite party







(1) In any action after pleadings are closed, or by leave of a judge
after appearance has been entered, either party may make a chamber
application for directions in respect of any interlocutory matter on
which a decision may be required.”









The application for
directions was opposed. However, MAVANGIRA J granted the Chamber
Application and issued the following order:-






“IT IS ORDERED






1. That the matter be and is hereby referred to the Labour Relations
Tribunal on the substantive issues on lawfulness or unlawfulness
of
the dismissal of the Applicant or his reinstatement.





2. That the Labour
Relations Tribunal be and is hereby ordered to determine on the
substantive issues relating to dismissal, reinstatement
or package in
lieu of reinstatement.





3. That costs be
reserved.”












It is quite clear that Rule 151 provides for an application for
directions in respect of matters pending before the High Court
and
not pending in the Labour Court or other fora. It is, therefore,
surprising that the appellant should have made such an application
and a judge of the High Court should have granted such an order when
clearly she had no authority to grant such an order. Rule
151 is
clearly intended to enable the High Court to control and regulate its
own process and not the process of other courts. I
shall revert to
this.






The Labour Court matter then resumed on 15 September 2003. The
matter was duly completed and judgment was delivered. In his
judgment
the learned Senior President concluded that the dismissal of
the appellant was unlawful and that he was bound by the order of
SMITH
J, cited above. In that order it was directed that in the
event of the Labour Court concluding that the appellant’s dismissal
was unlawful the appellant would not repay the loans advanced to him
and the respondent would thereby be released from the obligation
to
pay the appellant damages for wrongful dismissal. The Labour Court
accordingly issued the following order:-







“In the result the appeal can only succeed. In view of the
appellant’s success this Court is bound by the consent order made
by SMITH J in High Court Case Number HC-4735-99 which ordered that:-






‘(a) If the Labour Relations Tribunal (Court) finds that the
dismissal of the defendant (appellant) was not lawful the defendant
shall not be liable to repay loans (specified in that order) and the
plaintiff (respondent) shall pay the defendant’s costs of
suit but
shall not be liable to pay damages for the unlawful dismissal.’”









The appellant was aggrieved by this determination and appeals to this
Court on the following grounds set out in the notice of appeal:-







“1. It is respectfully submitted that the court a quo erred
in holding that the Appellant was bound by a Consent Order made
before Justice Smith under Case No. HC-4735-99 contrary to
the
directions of the High Court under Case No HC-3000-02 directing the
court a quo to deal with all substantive issues including
matters relating to reinstatement or payment of a package in lieu of
reinstatement.





2. The court a quo
erred in making a finding, that the Consent Order was binding when in
actuality the court a quo previously requested Appellant to
seek directions from the High Court in his Order of the 7th
March 2002, which directions were duly issued by the High Court under
Case No HC-3000-02, by flouting the terms of that Order.





3. The court a quo
totally misinterpreted the Order made before Justice Smith under Case
No. HC-4735-99 in circumstances where it only related to the
loans
agreement and not substantive issues of the labour.





4. The court a quo
erred in failing to make a finding, that this was an appropriate case
of an award of costs on a punitive scale on a legal practitioner
and
client scale given the unwholesome conduct of the Respondent.”









Dealing with the first ground of appeal the issue that arises from
this ground is whether or not the Labour Court committed an
error of
law by applying SMITH J’s order which recorded the settlement of
the parties of their dispute in Case Number HC-4735-99.
In order to
succeed on this ground the appellant has to show or establish that
there is a rule or principle of law which required
or bound the
Labour Court to apply or follow the order of MAVANGIRA J as against
that of SMITH J.





In his Heads of
Argument counsel for the appellant made the following submissions:-






“1. The appellant in this appeal is seeking the setting aside of
the judgment of the Court a quo and his immediate
reinstatement to his original position at the time of suspension
without any loss of benefits on the basis that
the Court a quo
made a fundamental error in failing to implement the High Court Order
of the 3rd June 2003 under Case No. HC-4735-99 (p. 49 of
the record) which gave it directions as to how the matter was to
proceed and be determined.





2. The appellant is
further seeking an appropriate order of costs as against the
respondent on a punitive scale as between legal practitioner
and
client scale given the reckless attitude of the respondent in
pursuing an inane argument in the light of the ‘glaring error’
by
the Court a quo and having been informed by the appellant’s
legal practitioners of that error.





A. MAIN
SUBMISSIONS






1. It is a fundamental rule of law that where the Court a quo
refers a matter for directions to a Superior Court, as in the matter
in casu to the High Court and such directions given and issued
by that Superior Court, then the Court a quo has no discretion
put to implement them.






1.1 Thus the Court a quo having referred the matter to the
High Court in terms of its order of the 7th March 2002 (p.
50 of the record refers) after the parties had given conflicting
interpretations to the order of the then Judge of
the High Court,
SMITH J, dated 10th April 2000, which essentially dealt
with the question of company motor vehicle loans and not labour
issues; the High Court of Zimbabwe
having given such directions (p.
50 of the record refers), the Court a quo had an obligation to
implement the directions of the High Court as directed and had no
discretion in the matter. See: Standard Chartered Bank of
Zimbabwe v Lovemore Matsika
SC-23-96.







1.2 The Court a quo having made a finding that the respondent
had failed to prove the appellant’s guilt on a balance of
probabilities must have gone
further to order reinstatement of the
appellant to his original position as at the time of suspension
without any loss of benefits
as per the High Court Order of the 3rd
June 2002 (p. 49 refers). It is further respectfully submitted that
the Court a quo had no discretion at all, to hold otherwise
but to implement the High Court Order.”







Counsel for the respondent did not refer us to any authority for the
proposition that where there are two orders from the same court
it is
wrong for a lower court to comply with one order as opposed to the
other. In the present case there are two judgments of
two different
judges of the same court with the same parallel jurisdiction which
are at variance with each other. This situation
is largely of the
appellant’s own creation in that he firstly signed a consent order
which is very clear, and thereafter, he applied
for another order
from the same court, the High Court, which sought to alter the
judgment previously obtained from that court.






The basis upon which
MAVANGIRA J’s order was sought, according to the appellant’s
counsel, was that the High Court has jurisdiction
to interpret its
judgment. It is a submission, as Professor Ncube correctly
submitted, which finds no support in law. The law on this point is
very clear in that once a matter has been finalised
by a court, that
court becomes functus officio. It has no authority to
adjudicate on the matter again. The only jurisdiction that a court
has is to make incidental or consequential
corrections. The
position was stated as follows in the case of Kassim v Kassim
1989 (3) ZLR 234(H) at p 242 C-D where it was stated 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 (Pty) 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 Firestone, supra, at p 306 the court further stated
that:-






“The principal judgment or order 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.”









Further on at p. 307 C-G the court went on to say:-






“The Court may correct a clerical, arithmetical or other error in
its judgment or order so as to give effect to its true intention…

The 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.”









In West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926
AD 173 it was stated that:-






“The Court can, however, declare and interpret its own order or
sentence, and likewise correct the wording of it, by substituting
more accurate or intelligent language so long as the sense and
substance of the sentence are in no way affected by such correction;

for to interpret or correct is held not to be equivalent to altering
or amending a definitive sentence once pronounced.”









The above principles were fully reaffirmed in Thompson v South
African Broadcasting Corporation
2000 (1) SA 746 at pp 748 –
749. See also generally Brightside Enterprises (Pvt) Ltd v
Zimnat Insurance Co 2.
1998 (2) ZLR 229 (H) at p 231 – 232.





In S v Wells 1990
(1) SA 816 the principles were stated as follows:-






“According to the strict approach a judicial official is functus
officio
upon having pronounced his judgment which is a sentential
stricti juris
and as such incapable of alternation, correction,
amendment or addition by him in any manner at all … A variant of
this strict
approach permits a judicial officer to effect linguistic
or other minor corrections to his pronounced judgment without
changing the
substance thereof …





The more enlightened
approach, however, permits a judicial officer to change, amend or
supplement his pronounced judgment, provided
that the substance of
his judgment is not affected thereby.” (at pp 819 – 820)










In Parker v Parker & Ors 1985 (2) ZLR 79(H) it was held
that an order giving directions is not an incidental order and that a
judge of the High Court cannot
vary or alter an order of a judge of
parallel jurisdiction, short of expanding on it (see at pp 84-85).










The effect of MAVANGIRA J’s order was to do precisely what was
said to be incompetent in Parker v Parker, supra.






Whilst it is true
that there was no appeal against the judgment of MAVANGIRA J and this
Court is not seized in this appeal with
the correctness or otherwise
of that judgment, the fact of the matter is that MAVANGIRA J’s
judgment is not only patently wrong,
it is also patently irregular in
that it was purportedly made in terms of Order 23 which does not
authorise her to grant such order.
I have already stated that in
terms of Order 23 she could only have given directions in respect of
matters pending in the High
Court and not in other fora.






The first ground of appeal cannot succeed as it is predicated on a
court order that is patently incompetent and irregular.





The Labour Court cannot
be faulted for complying with the order of SMITH J which cannot and
has not been impugned. Apart from this,
the order of SMITH J was
given by consent and its terms were very clear contrary to the
submissions by the appellant’s counsel.
The order states in no
uncertain terms that in the event of the appellant’s dismissal
being found to be unlawful by the Labour
Court his damages for such
unlawful dismissal would be the equivalent of the amount the
appellant owed the respondent in respect
of the loans. The
appellant’s counsel, who represented him at the Pre-trial
Conference, signed that agreement and he should have
known and
understood its meaning.





Turning to the second
ground of appeal, that ground clearly misrepresents what is on
record. What is on record is that the appellant
requested for a
postponement of the matter while it was pending at the Labour Court
in order to enable the appellant to apply for
directions from the
High Court. The Labour Court granted the postponement. The Labour
Court never requested for directions.
Even if it had requested for
such directions it would have acted ultra vires the Labour Act
which does not provide for such a procedure. Accordingly the second
ground of appeal must also fail.




In
the third ground of appeal the appellant contends that the court
misinterpreted the order of SMITH J in HC-4735-99 in circumstances
where it only related to the loan agreement and not substantive
issues of labour. With the greatest respect it is the appellant
who
has misinterpreted the order of SMITH J whose language very clearly
provides for what should happen in the event of the Tribunal
finding
that the dismissal of the appellant was unlawful. Again there is no
substance in this ground of appeal.





The appellant’s
counsel seeks damages on a punitive scale given what he contends to
be the unwholesome conduct of the respondent.
If anybody was guilty
of unwholesome conduct it is the appellant’s legal practitioner who
played a leading role in the litany
of errors which is the hallmark
in this case.





The respondent has not
asked for punitive costs therefore no such costs will be awarded.
The costs will follow the result.





In the result the
appeal is dismissed with costs.





















ZIYAMBI JA: I
agree.




















MALABA JA: I
agree.
























Muskwe &
Associates
appellant's legal practitioners





Coghlan Welsh &
Guest
, respondent's legal practitioners