Stanbic Bank v Taazadza Munhumutema

### Preamble
Judgment No. SC 76/20
Civil Appeal No.SC 160/18
1
REPORTABLE
(139)
---------


REPORTABLE	(139)

STANBIC     BANK

V

TAAZADZA     MUNHUMUTEMA

SUPREME COURT OF ZIMBABWE

MAKARAU JA, BHUNU JA AND MAKONI JA

HARARE: NOVEMBER 22, 2018 & NOVEMBER 02, 2020

T. Mpofu, for the appellant

Respondent in person

BHUNU JA: 	This is an appeal against the whole judgment of the Labour Court dated 25 September 2017. The facts giving rise to the appeal are by and large common cause.

FACTUAL BACKGROUND

[1]	The respondent is a former employee of the appellant. He was dismissed 	from employment sometime in 1995 on allegations of misconduct. Aggrieved by the dismissal he successfully appealed to the Appeals Board on grounds that he had been dismissed under a wrong code of conduct.

[2]	In upholding the appeal the Appeals Board ordered reinstatement with full salary and benefits without stipulating an alternative for damages if reinstatement was no longer an option.

[3]	Aggrieved by the Appeals Board’s decision, the appellant appealed to the court a quo without success.  The court a quo dismissed the appeal and upheld the Appeals Board’s decision. Undaunted, the appellant further appealed to this Court without success

whereupon the respondent sought reinstatement in terms of the extant judgment.

[4] 	The appellant was unwilling to reinstate the respondent. It therefore approached the court a quo for quantification of damages in lieu of reinstatement. The court a quo dismissed the application on the grounds that the appellant had approached the court with dirty hands as it had not complied with the valid Appeal Board’s order to reinstate the respondent.

[5] 	A stalemate was then reached with the appellant refusing to reinstate the respondent but at the same time refusing to pay damages in lieu of reinstatement on account that there was no order requiring it to pay the respondent damages in lieu of 	reinstatement.

[6]	Cognisant of the fact that there was indeed no order requiring the appellant to pay damages in lieu of reinstatement, the respondent filed an application for condonation of late filing of an application for the  correction of the court a quo’s judgment. He implored the court a quo to grant the application to facilitate his application for the amendment of the court a quo’s order to include an alternative for the payment of damages in lieu of reinstatement.

[7]	The application for correction of the court a quo’s judgement is premised on the proviso to s 89 (2) (c) (iii) (i) of the Labour Act Chapter [28:01] which makes it mandatory for the court a quo to make an order of payment of damages in lieu of reinstatement when making an order for reinstatement. The proviso provides as follows:

“(iii) reinstatement or employment in a job:

Provided that—

(i)	any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment;

(ii)  	in deciding whether to award damages or reinstatement or employment, onus is on the employer to prove that the employment relationship is no longer tenable, taking into account the size of the employer, the preferences of the employee, the situation in the labour market and any other relevant factors;

(iii)   should damages be awarded instead of reinstatement

or employment as a result of an untenable working relationship arising from unlawful or wrongful dismissal by the employer, punitive damages may be imposed;”

[8] 	In terms of the above provision of the law, it is mandatory 	that an order for reinstatement must be coupled with an alternative order for payment of damages if the employer is not willing to reinstate the employee wrongfully dismissed. This accords with the common law 	position that an employer cannot be forced to reinstate an 	employee he no longer wants.

[9]	The court a quo however granted the application for condonation on the grounds that the respondent has reasonable prospects of success on appeal, in that the patent error of omitting to make an alternative order for payment of damages can be corrected in terms of s 92 C of the Act.

[10]	The requirements for an application for condonation of late 	noting of an appeal are well known. These were spelt out by ZIYAMBI JA in Chimunda v Zimuto SC 76/14. In that case the learned judge held that in an application of this nature, the court should consider the cumulative effect of the following factors:

(a) The extent of delay.

(b) The reasonableness of the explanation tendered for the delay.

(c) The prospects of success on appeal.

(d)	 The prejudice if any, that is likely to be caused to the respondent should the

application be granted; and

(e) The need to bring finality to the proceedings.

THE EXTENT AND REASONABLENESS OF THE EXPLANATION FOR DELAY.

[11]	The respondent obtained the defective judgment that he wishes corrected in terms of

s 92 C of the Labour Act on 6 March 2003. The application for condonation was filed 14 years after the defective judgment was issued. His reason for the inordinate delay is that he was pursuing legal remedies for reinstatement in terms of the defective order. In pursuing that route the respondent knew pretty well that the appellant was adamant and consistent in its refusal to reinstate him.

[12]	In my view it was unreasonable to pursue a relief at 	variance with the law for 14 solid years only to back track on 	reaching a dead end. That type of conduct defies logic and is grossly unreasonable considering that both the common law and statute provide that an employer cannot be forced to reinstate an employee wrongfully dismissed. The only available remedy in that case is an award for payment of damages in lieu of reinstatement. It was therefore folly for the respondent to pursue an unenforceable remedy for 14 years.

PROSPECTS OF SUCCESS ON THE APPLICATION FOR CORRECTION OF THE DEFECTIVE ORDER.

[13]	The respondent intends to correct the defective order in terms of s 92 C of the Act. The section provides as follows:

“Rescission or alteration by Labour Court of its own decisions

Subject to this section, the Labour Court may, on application, rescind or

vary any determination or order—

(a) which it made in the absence of the party against whom it was made; or

(b) 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”.

[14]	It is self-evident that the defective order was not a 	default order 	made in the absence of the other party. It 	was also not void as it was lawful and partially enforceable at the sole discretion of the appellant. The order was also not fraudulently obtained or a result of any mistake common to the parties. What is clear is that the defective order was a wrong order arising from a failure to appreciate the law on the part of the court a quo.  It failed to appreciate that in terms of the law, it is 	mandatory for an order of reinstatement to be coupled with an alternative order for payment of damages in lieu of reinstatement.

[15]	The point also appears to have escaped this Court on appeal when it confirmed the Labour Court decision and ruled against the appellant as referred to in para 3 above.

[16]	In this regard it is axiomatic that once a court has made a determination and rendered judgment, which is confirmed on appeal, it becomes functus officio, it cannot revisit its judgment or order. On that score, it is plain that s 92 C of the Act was not meant to give the court a quo the power to correct its own wrong judgments and orders. The Act merely authorises the court a quo to correct errors and mistakes occasioned in circumstances stipulated in s 92 C of the Act, none of which are applicable in this case. In Chipondah & Anor v Muvami it was held that:

“Our law recognises that once a dispute between the same parties has been exhausted by a competent court, it cannot be brought up for adjudication again as there is need for finality in litigation. To allow litigation to plough over the same ground hoping for a different result will have the effect of introducing uncertainty into 	court decisions and will bring the administration of justice into disrepute.”

[17]	The court a quo having become functus officio upon pronouncement of judgment, it cannot correct its defective order by 	ordering payment of damages in lieu of reinstatement. The wrong order can only be corrected on appeal to this Court in terms of s 92 F and not in terms of s 92 C of the Act. What this means is that the court

a quo has no jurisdiction to do what the respondent is asking it to do upon being granted condonation to enable him to apply for correction of the court a quo’s order in terms of s 92 C of the Act.

[18]	The court a quo was therefore wrong in holding that the respondent had good prospects of success on appeal to the court a quo when it lacks the necessary jurisdiction to give the relief that he is seeking.

[19]	The delay in lodging the application being inordinate and there being no reasonable explanation for the delay or reasonable prospects of success, the appeal can only succeed. Costs follow the result. It is accordingly ordered that:

i. 	The appeal be and is hereby allowed with costs

ii.	The judgment of the Labour Court be and is hereby 	set aside and

substituted with the following:

“The application for condonation be and is hereby dismissed.”

MAKARAU JA:		I agree

MAKONI JA:		I agree

Atherstone & Cook, the appellant’s legal practitioners.

The respondent appeared in person.