Zimbabwe Rural District Council Workers Union v Hurungwe Rural District Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/716/2016
HARARE, 13 SEPTEMBER 2016 &
18 NOVEMBER 2016
CASE NO LC/H/APP/1181/2015
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/716/2016

HARARE, 13 SEPTEMBER 2016 &		    CASE NO LC/H/APP/1181/2015

18 NOVEMBER 2016

In the matter between

ZIMBABWE RURAL DISTRICT COUNCIL				APPLICANT

WORKERS UNION

Versus

HURUNGWE RURAL DISTRICT COUNCIL				RESPONDENT

Before the Honourable Maxwell J

For the Applicant	J Chaka (Trade Unionist)

For the Respondent     S Banda (Legal Practitioner)

MAXWELL J:

This is an application for correction of an order in terms of section 92 C (1) (c ) of the Labour Act [Chapter 28:01]. On 12 August 2015 this court granted the following order:

“1.	The applicant having filed an application in terms of rule 19 (3) (a) of SI 59/2006, the application be and is hereby granted.

2.	The respondent being barred for non-compliance with rule 19 (2) (ii) of S I 59/2006, the application under reference LC/H/APP/998/14 be and is hereby granted.”

The application under reference LC/H.APP/998/14 is an application for quantification of back pay of salary and benefits as well as food hampers. The order granted was as per the draft order filed of record. The applicant is seeking correction of the order on the basis that the court omitted the monetary figure which the respondent should pay.

The application is opposed on the basis that there is no omission or error on the part of this court. The respondent states that the application for quantification did not have a draft order setting out the relief sought by the applicant. In the respondent’s view, it is the applicant, and not the court which omitted the amount. The respondent called for the invocation of the maxim vigilantibus non dorminientibus jura subventrunt.

In oral submissions Mr Banda for the respondent stated that the applicant is asking the court to reopen the quantification application and not to correct the order. In his view the rule of functus officio estops the applicant from seeking such a relief. Mr Banda referred to the case of Matanhire v B P Shell Marketing SC 5-05 in which it was held that in an application for correction of a judgment or order a court can substitute more accurate or intelligent language so long the sense and substance of the sentence are in no way affected by such correction. In his view that is not the case in casu as the applicant is introducing a monetary figure which was not part of the application before the court.

It is trite that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it. See The Civil Practice of the High Courts of South Africa, Herbstein and Van Winsen, 5th ed.  p 926. There are however exceptions to that rule which include:

The principal judgment or order may be supplemented in respect of accessory or consequential matters, e.g. costs or interests on the judgment debt, which the court overlooked or inadvertently omitted.

The court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter “the sense and substance” of the judgment or order.

The court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention; and

Where counsel has argued the merits and not the costs of a case, but the court, in granting judgment, also makes an order concerning the costs, it may thereafter correct, alter or supplement that order. See Firestone South Africa (PTY) Ltd v Genticuro AG 1977 (4) SA 298.

I am of the view that the applicant’s application should fall within the second exception, where the correction is to give effect to the intention of the court. However the question is whether or not that correction would alter the sense and substance of the order. It is necessary to examine the two records involved, that is, the application in terms of r 19 (3) (a) of S I 59/06 and the application for quantification.

The application in terms of Rule 19 (3) (a)

This application is referenced LC/H/APP/122/15. The founding affidavit concludes by praying for an order in terms of the draft order attached thereto. The draft order is on page 13 of the record. The draft order is as follows:

“IT IS ORDERED THAT:

The application filed by the applicant under case number LC/H/APP/998/14 be and is hereby granted.

The respondent to pay the costs of suit.”

This is the record that was before the court on 3 August 2015 when the order sought to be corrected was granted. The record does not have any prayer for the granting of any monetary figure. The founding affidavit was deposed to by one James Chafungamoyo Gumbi, applicant’s Secretary General. Pages 17 – 19 are entitled “Underpayment of Security Guards January 2009 – October 2014.”Three names appear on the pages; A Muswe, P Chaora and E Ndoro. However the founding affidavit makes no reference to them. From this record, it is not evident that the court omitted a figure that was placed before it. Neither do the handwritten notes contain any figure.

The application for quantification

This application is referenced LC/H.998/14. There is no founding affidavit in this application. What is on record is a narration of the history of the matter and what the applicant claims as entitlement signed by James C Gumbi again. In paragraph 17 of the narration, it is stated:

“The claimant is therefore calling for this court to:

Award the back pay of salaries and benefits as provided for in Annexure D.

Award food hampers as provided in Annexure D.”

The record of proceedings does not have any document marked Annexure D. The record on pages 7 – 12 contains judgment number LC/H/150/13 which I believe is the basis for the application for quantification. In the operative part of the judgment, the court ordered that applicants be paid at the rates prevailing as at 14 February 2012 and also that the claim for food hampers be met in terms of the provisions of the Collective Bargaining Agreement. Again in this record the document entitled “underpayment of security guards January 2009 – October 2014 is there. The application for quantification has no draft order. Again from this record it is not evident that the court omitted a figure that was placed before it.

Whether or not the correction sought will give effect to the intention of the court without altering the sense and substance of the order

The applicant seeks the correction of the order by the addition of the following paragraph:

“The respondent is hereby ordered to pay the applicant $100 315-60 being back pays from the date of unlawful termination to October 2014.”

The figure $100 315-60 is the total that appears in the document titled “underpayment of security guards January 2009 – October 2014.”In my view to grant the correction sought would result in granting an amount without evidence to justify the quantum. In Ruturi v Heritage Clothing (Pvt) Ltd 1994 (2) ZLR 374 it was stated that to do so is to err in law. In Inter-Agric (Pvt) Ltd v Allan Mudavanhu & Ors SC 9-15 the Supreme Court stated that any award of damages must be premised on evidence. In casu there is no evidence led to justify the amount requested to be put in as a correction. There is no one who swore to the fact that the amount so claimed was arrived at using the rates prevailing as at 14 February 2012 as per the order of this court in judgment number LC/H/150/13. Again no one has explained the relationship between the documents titled “underpayment of security guards January 2009 – October 2014”to the applicant’s claim.

In my view for the applicant to have an amount inserted in the order without violating principles of quantification requires the hearing of evidence on quantum. To do so would be to reopen a case that had been concluded. The court has no power to revisit a matter that was concluded. In my view this court is functus officio. See Passmore Matanhire v B P Shell Marketing Services (Pvt) Ltd SC 5-05.

For the above reason I am not persuaded to grant the application. Consequently the following order is appropriate:

The application for correction of an order be and is hereby dismissed.

J Mambara & Partners, respondent’s legal practitioners