Elisha Takomborerwa Shiripinda v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/213/2014
HELD AT HARARE ON 22ND JUNE 2012
CASE
NO.
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IN THE LABOUR COURT OF ZIMBABWE      	JUDGMENT NO. LC/H/213/2014

HELD AT HARARE ON 22ND JUNE 2012		CASE NO. LC/ORD/H/146/07

& 2ND APRIL 2014

In the matter between:-

ELISHA TAKOMBORERWA SHIRIPINDA			-	Applicant

And

CITY OF HARARE							-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Applicant	-	Mr. J. Mambara (Legal Practitioner)

For Respondent 	-	Mr. W. Gandanzara (Chief Legal Office)

CHIVIZHE, J.

The matter was initially placed before me on 14th March 2008 as an urgent chamber application for an order.  The parties concerned however resolved to settle the matter out of court.  The settlement agreement reached between the parties was later filed with the court.  The court then granted an order in terms of the settlement agreement reached.

The consent order issued granted on 1st of April 2008 reads as follows;

“1.  The Applicant’s exit package shall be as follows:-

3 months Notice Pay at current gross monthly salary.

3 months Pay for each year served based on current gross monthly salary.

3 months Pay relocation allowance based on current gross monthly salary.

Three months Pay as gratuity.

Provision of motor vehicle, if in disrepair, Council to repair the motor vehicle to the satisfaction of V.I.D or an A.A.Z. certificate would suffice.

Payment of Medical Aid for 12 months.

Provision of a cell phone and line.

Encashment of leave days outstanding.

Tax exemption from the whole package per the tax regulations.

20 years long Service Award based on current salary at current Council formula.

A commercial stand.

Monthly salary to be paid up to the date of payment of the package.”

On the 1st of April 2009 the Applicant lodged a fresh application for what he referred to as quantification of exit package.  The Applicant was seeking an order in the following terms;

“1. That Respondent pays to the Applicant an exit package in the sum of

USD137 573-00.

The Respondent pays the Applicant’s Medical Aid of choice for 12 months.

The Respondent delivers to the Applicant a Mazda T 50 single cab, Reg Nos AAE 5580.

The Respondent cedes its rights, title and interest in Stand No. 3440, Crowborough North, Harare to the Applicant.

The Respondent delivers to the Applicant a cell phone handset and line commensurate with the same model that is being offered to staff members of Applicant’s grade.”

The application was opposed by the Respondent.  In its notice of opposition the Respondent highlighted that it had in compliance with the consent order paid the Applicant the following entitlements;

3 months notice pay at the then current gross monthly salary.  This was paid in full by Respondent on 31 July 2008.

3 months pay for each year served based on the then current gross monthly salary.  This was paid in full up to 31 July 2008.

3 months relocation allowances based on the then current gross monthly salary.  This was paid in full on 31 July 2008.

3 months pay as gratuity.  This was paid by Respondent in full on 31 July 2008.

Medical aid for 12 months.  Respondent paid this entitlement in full on 31 July 2008 as lumpsum.

Encashment of leave days outstanding.  This was paid as at 31 July 2008.

Tax exemption from the whole package.

20 years long service award based on current salary.  Applicant was paid 20 years long service award in 2008.

Monthly salary to be paid up to date of payment of the package.  Appellant was paid this entitlement up to 31 July 2008.

It was Respondent’s submissions that what had remained outstanding as at July 31 2008 in terms of consent order were paragraph (v)(vii), (xi) and (xii) of the consent order.  However in November 2010 the Respondent had paid the outstanding entitlements (v) provision of a motor-vehicle.  The Applicant was paid an amount of US $7 000 in lieu of motor-vehicle.  The respondent had also provided Applicant with a cell phone and line.  In May 2011 the Respondent also complied with paragraph xi of the consent order by giving him a commercial stand.  An agreement of sale was signed between the parties on 5 May 2011.  The Respondent then made adjustments to the salary/benefits since the Applicant was entitled to his salary until payment in full of the package.  It was Respondent’s submission that as at 31 December 2011 it had duly complied with consent order.  The Applicant was paid US$65 906.45 in full and final settlement and there was no further outstanding entitlements.  On that basis the Respondent urged the court to dismiss with costs the application.

After giving due consideration to this matter it is the court’s considered view that the court is functus officio in this matter.  It is common cause that an application for an order having been placed before this court on the 14th of March, 2008 the parties then appeared and advised the court that they had reached settlement.  The parties however were going to draw up a deed of settlement recordingthe agreement reached and file it with the court for the court to then record consent judgment.  On the 1st of April, 2008 the court granted an order by consent which basically reflected the terms of the settlement agreement as reached between the parties.  The order was signed by both parties and endorsed by the court.  The court by endorsing the court order had basically discharged its functions.  It has no power to revisit the matter for whatever reason.

Although the application placed before mehas been presented as a fresh application for quantification of exit package it is actually an attempt to have the court revisit the order granted in 2008 and make adjustments to the order.  The court is also being asked to compel enforcement of some of the provisions of the order granted by consent in 2008.  This the court clearly cannot do.  It is a settled position at law that once a court has pronounced the rights of the parties as in casu the court becomes functus officio.

In Harare Sports Club vs United Bottlers Ltd 2000 (1) ZLR 264 (HC) the court held that;

“There are in principle major obstacles to a court interfering with its own judgment.  The first of these is the principle “functus officio”.  Where a court has determined a cause and given its decision then to the extent to which its function has been discharged it has no power to revisit the matter.  Second and reinforcing the first is the desideratum of finality in litigation.  Third considerations of res judicata have also entered the equation.”

The court being clearly functus officio the present application is therefore improperly before the court.  The application is consequently dismissed with costs.

J Mambara & Partners, applicant’s legal practitioners