REPORTABLE
ZLR (79)
Judgment
No. SC 99/04
Civil
Appeal No. 351/03
PHIBEON
CHAWATAMA v UNITED TOURING COMPANY
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, MALABA JA & GWAUNZA JA
HARARE,
SEPTEMBER 7 & NOVEMBER 4, 2004
The
appellant in person
C
C Mudara, for the
respondent
MALABA JA: On 13 October 2003
the appellant (Chawatama) and Ms Gurure
who represented the
respondent appeared before the Senior President of the Labour Court
to have damages in lieu
of reinstatement of Chawatama to employment with respondent
quantified in terms of the order issued on 22 November 2001.
Each party addressed the Court on
the factors to be taken into account in the quantification of the
damages. They then asked to
be given until the following day to
negotiate an agreement on the quantum of damages. The record of
proceedings shows that on the
resumption of the hearing on 14 October
the following exchanges between each of the parties and the Senior
President took place:-
GURURE: I beg leave to submit
what we have come up with (document
with
calculations handed in).
MTSHIYA (SENIOR PRESIDENT):
Please hand this document to appellant.
CHAWATAMA: I am satisfied with
both the back pay and damages.
MTSHIYA: It is by consent hereby
ordered:-
1. That
the respondent shall pay the appellant as follows:
(a)
Back pay $404 980,72
(b) Damages $
94 350,00
Total $499
330,72
2. That
the said total sum of $499 330,72 shall be paid together with
interest at the prescribed rate
from the date of this order (i.e 14 October
2003)
to the date of payment in full.
3. That
there be no order as to costs.
The order granted by the Labour
Court was in essence a recording of the terms of the agreement
between the parties contained in the
document handed in by the
respondents legal practitioner. Chawatama has sought to appeal
against the order granted on the ground
that it did not take into
account the effect of inflation on monetary value of the damages
awarded by consent without denying the
fact that he consented to the
terms in which the order was granted. Without an allegation and
proof of the fact that his consent
was obtained by means of fraud the
order remained a consent order.
An appeal against an order given
by consent is not possible. In Thambi
v Stalka NO & Anor
1946 TPD 297 ROPER J held on the facts before him that there could be
no appeal against a judgment by consent given under the South
African
Magistrates Court Act 32 of 1944. He went on to state at p 300
that;
It is impossible to imagine
any circumstances in which a party could appeal against a judgment by
consent; he might have good grounds
for setting aside or varying such
a judgment but he would not and could not appeal against it.
In
other words whilst it is possible to have a judgment by consent set
aside on the ground, for example, that consent to it was obtained
by
fraud or a mistake common to both parties it is not possible to
attack the judgment as being wrong on account of a misdirection
on a
question of fact or law because no such question would have been a
subject of decision by the Court.
In this case s 92D of the Labour
Relations Act [Chapter 28:01] provides that an appeal shall lie to
the Supreme Court from any decision
of the Labour Court on a question
of law only. A notice of appeal must specify quite precisely the
points of law in the ruling
of the Labour Court on which it is
alleged there was a misdirection. That is not possible where the
order was given by consent.
See Chivero
& Ors v Mudzimu Unoyera Apostolic Church 1994
(2) ZLR 371 (S) at 373 D
The appeal is accordingly struck
off the roll with costs.
CHIDYAUSIKU CJ: I agree.
GWAUNZA JA: I agree.
Chitapi
& Associates,
respondents legal practitioners
