Wilson Muyanga v Public Service Commission & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/244/2016
HARARE, 8 MARCH 2016 &
13 MAY 2016
CASE NO LC/H/APP/1405/2015
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/244/2016

HARARE, 8 MARCH 2016 &			    CASE NO LC/H/APP/1405/2015

13 MAY 2016

In the matter between

WILSON MUYANGA						APPLICANT

Versus

PUBLIC SERVICE COMMISSION				1ST RESPONDENT

And

JUDICIAL SERVICE COMMISSION				2ND RESPONDENT

Before the Honourable E T Muchawa J

The Applicant in Person

For the Respondent    Mrs O Zvedi  (Legal Officer)

MUCHAWA J:

This is an application for rescission of judgment made in terms of Rule 33 of the Labour Court Rules, S I 59/2006, as read with section 92 C (1)(c) of the Labour Act [Chapter 28:01].

The applicant filed, amongst many applications before this court, an application for an interdict which sought to bar the respondents from approaching the court and sought that he be reinstated. That application was dismissed by honourable MURASI J on 26 June 2015.

Aggrieved, the applicant lodged an application for leave to appeal to the Supreme Court against the MURASI J judgment. The application was heard by honourable CHIDZIVA J on 18 September 2015. Both parties appeared and made oral submissions and judgment was reserved.

Meanwhile on 28 September 2015, the applicant filed an application for leave to lodge further submissions purportedly in terms of Rule 36 as read with Rule 19 and 33 of the Labour Court Rules.

Honourable CHIDZIVA J proceeded to hand down a judgment dismissing the application for leave to appeal on 16 October 2015.

This current application for rescission of judgment is based on the allegation that CHIDZIVA J’s dismissal of an application for leave to appeal to the Supreme Court was granted in error because she delivered her judgment before an interlocutory application on leave to lodge further submissions had been heard.

The application for leave to file further submissions was opposed on 2 October 2015 as having no legal basis. However that application was not set down for hearing before the handing down of the CHIDZIVA J judgment. Such application was not filed as an urgent application and seems to have therefore proceeded in terms of Rule 21 of the Labour Court Rules and was set down on a first come first served basis.

I heard the application for leave to file further submissions on  8 March 2016 and reserved my judgment.

Further, the parties agreed that I should proceed to determine this application for rescission on the papers filed of record. This followed the retrieval of a notice of response to this application which had been misfiled due to the volume of pleadings between the parties in the seven records before this court. The notice of response was filed on 2 December 2015 and both parties filed heads of argument.

Having considered the papers filed of record, this is my judgment.

The applicant’s case is that there was a patent error as his application for leave to lodge further submissions was not heard prior to the judgment by CHIDZIVA J.

The respondent argues that the facts in this matter do not establish that there was any patent error as the parties appeared in person and made oral submissions. The failure to consider the application for leave to lodge further submissions is dismissed as not establishing a patent error.

Section 92 C (1) (c) provides that:

“(1)	Subject to this section, the Labour Court may, on application, rescind or vary any determination or order –

(c)	in order to correct any patent error.”

A patent error is defined in the Merriam Webster Dictionary as an obvious mistake, an apparent mistake, an explicit error. Such an error or flaw is one that should have been noticed by a reasonably observant individual.

The case of Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 307 C – G states that in relation to patent errors:

“The court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention. This 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 the case of Mncora v Butters [2013] ALL SA 330 ECP, correction of a patent error related to changing a date in an order.

In casu there is no obvious mistake or flaw alleged which would be cured by varying the determination or order without altering its substance.

Instead, the applicant makes the same allegations which were before CHIDZVA J and all the other several judges of this court relating to the merits of his case.

The patent error alleged must exist on the face of the order or judgment sought to be varied so as to get the true intention of the judge upon variation of same.

I accordingly find that the application for rescission of judgment, based as it is on section 92 C (i) (c) of the Labour Act, has no proper legal basis in the circumstances.

Accordingly, the application for rescission is dismissed with costs.

Civil Division of the AG’s Office, respondents’ legal practitioners