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 7^th 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 3^rd 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 7^th 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 10^th 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 3^rd 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