Misheck Shoko v Chitungwiza Municipality & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/604/2013
HARARE, 04 & 08 NOVEMBER 2013
CASE NO. LC/ORD/H/15/09
JUDGMENT NO. LC/H/604/13
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IN THE LABOUR COURT OF ZIMBABWE 	   JUDGMENT NO.  LC/H/604/2013

HARARE, 04 & 08 NOVEMBER 2013			CASE NO. LC/ORD/H/15/09

In the matter between

MISHECK SHOKO							    Applicant

And

CHITUNGWIZA MUNICIPALITY				    1ST Respondent

And

THE MINISTER OF LOCAL GOVERNMENT			    2ND Respondent

Before The Honourable P. Muzofa; Judge

(IN CHAMBERS)

MUZOFA P.;

This is an application for rescission of a judgment, in terms of Section 92C of the Labour Act [Chapter 28:07].

The background of the case is as follows:

Applicant filed an application for the nullification of his indefinite suspension.  Applicant later realized that the order for reinstatement was no longer possible since the post of Executive Mayor had been abolished.  Applicant then filed a notice to amend the draft order on the 5th of July 2011.  The Respondents did not file its Notice of Response thereafter the matter was set down.  It is not clear in terms of which rule the matter was set down.  What is clear is that on the 8th of February 2013 the matter was postponed for parties to attempt an out of Court settlement.  The matter was again set down on the 6th of March 2013 the matter was postponed sine die.  It was set down again upon the Applicant’s request on the 10th of May 2013 the matter was heard.  The court after hearing submissions from both parties made a ruling of which I will quote what is pertinent to this application.

“3. The current application is dismissed for being improperly before the Court.”

The application is that the Court in making its ruling dealt with a matter that was not before it.  The matter before the Court then was whether or not the 1st Respondent’s application for upliftment of bar and condonation met the requirements of the law.  Therefore there was a mistake common to both parties and prays that the patent error be corrected.

The 1st Respondent’s representative opposed the application on the basis that the matter is res judicata and the Court is therefore functus officio.  It was also submitted that the application was improperly before the Court in that if there was a patent error the proper application is for the correction of the patent error and not rescission.

This application is in terms of Section 92C which provides that this Court may on application rescind or vary any determination or order –

“(1)(b) in which the Labour Court is satisfied is void or was obtained by fraud or a mistake common to the parties; or

(c) in order to correct any patent error”

The Applicant seems to use both grounds (b) and (c) interchangeably in its application.  The Applicant did not state under which subsection the application is based on.

I propose to deal with the issue whether the application is properly before the Court.  As indicated before it is not clear under which subsection the application is being made.  I must say the main complaint is that the Court dealt with a matter that was not before it.  As such if the application is based on Section 92 (c) (1)(b) that there was a mistake common to the parties it must be shown what the mistake was.  The Court heard both parties in that case and parties were addressing the Court on the merits, no mention was made of the procedural issues that Applicant seeks to rely on in this application.  Applicant himself when the matter was heard addressed the Court claiming the case before the Court was for damages.  He did not draw the Court’s attention that there were procedural issues to be dealt with.  There was no demonstration by the Applicant in this application what is the mistake common to the parties.

In the event that the application is based on Section 92 (c) (i) (c) to correct any patent error, I believe the application for rescission is misplaced.  This Court is enabled to rescind or vary an order and each course of action is determined by the facts of each case.  In any event there is no demonstration what is the patent error.

If indeed the application is for rescission of judgment, the requirements to be satisfied were clearly stated in the case of Grant v Plumber P/L  1949 (2) SA 470	 being that:-

there must be a reasonable explanation for the default.

The explanation must be bona fide.

There must be a bona fide defence in the main matter.

In this case Applicant did not make any attempt to satisfy the above requirements.  However the decisive factor is that none of the parties was in default.  The Applicant even if he had attempted to show that the application satisfied the above requirements he would have failed.  To my mind therefore this is not an application for rescission, it is an application that is improperly before the Court.

In any event even if the application was properly before the Court the application would still not succeed.  In the first case this Honourable Court made an order after hearing both parties.  The matter was not left open.  The Court was referred to the case of Le Roux en’n Ander v Le Roux 1967 (1) SA (A) at 461  where the Court addressed res judicata;  it was stated that;

“… it is a form of estoppel and means that where a final and definitive judgment is delivered by a competent Court the parties to that judgment or their privies … are not permitted to dispute its correctness.”

In this case the Court’s decision was final and definitive therefore its hands are tied to interfere with its finding.

Accordingly the application is dismissed.

Each party to bear its own costs.