Respondent had obtained an order for his promotion by the
City of Harare from the Labour Relations Board, the other party being cited in
that order as The Town Clerk, City of Harare. He had then successfully
petitioned the High Court under s 111(3) of the Labour Relations Act for
registration of the order, and when the Town Clerk wrote that the city council
would not comply with the order, instituted contempt proceedings against the
Town Clerk. A committal order was refused because the judge found from the
record of proceedings that the real party in the initial proceedings before the
Labour Relations Board was the City Council, not the Town Clerk. The respondent
then applied to the High Court, without notice to the council or town clerk,
for rectification of the Board's order and this was granted. The Council
appealed against that amending order
Held, that as the order registered in the High Court had
been the order asked for by the respondent and given by the Labour Relations
Board, the High Court did not have the power to rectify the order since the
court had made no error.
Held, further, that the error was not "a clerical error made
by the court or a judge" such as to enable rectification under Rule 449.
Held,further, that, in any event, the High Court should not
have made an order fundamentally affecting the City Council without any notice
having been given to it of these proceedings.
Held, further, that the only way in which the desired
rectification could be effected was by the respondent initiating proceedings
before the Labour Relations Board for this error to be corrected.
Held, further, that it was of the utmost importance that
parties to legal proceedings should be correctly and unambiguously cited.
Held, further, that although the appellant had succeeded in
the appeal, it was not entitled to be awarded costs because it had sought
shelter behind an ambiguity in citing the parties it could have drawn attention
to earlier.
Cases:
Eagle Tanning (Pvt)
Ltd & Anor v Employees of Eagle Tanning (Pvt) Ltd & Anor S-238-91
(unreported)
Firestone South Africa
(Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)
Seatle v Protea
Assurance Co Ltd 1984 (2) SA 537 (C)
Bakoven (Ltd) v GJ
Howes (Pty) Ltd 1992 (2) SA 466 (E)
A P de Bourbon SC for the appellant
No appearance for the respondent
McNALLY JA: Mr
Cinamon was appointed by the City of Harare to the post of Deputy City Valuer
and Estate Manager. Subsequently the post of City Valuer and Estate Manager
fell vacant. He was initially appointed to act in that post, but later another
person junior to him was appointed to the substantive post, over his head.
Mr Cinamon alleged that this was an unfair labour practice
in terms of s 5(2)(b) of the Labour Relations Act No. 16 of 1985 as read with s
8 of the same Act. He referred the matter to a labour relations officer (presumably
in terms of s 109(1) of the Act), who in turn referred the matter to the Labour
Relations Board in terms of s 109(2)(d) of the Act. The Board made a
determination in terms of s 111 of the Act in favour of Mr Cinamon. It ordered
that he be appointed to the post. What was to happen to the other incumbent was
not made clear.
Unfortunately the ruling issued by the Chairman of the Board
was issued under a heading which showed Mr Cinamon as the appellant and "The
Town Clerk, City of Harare" as the respondent.
I do not think, strictly speaking, that Mr Cinamon should
have been describedas "The appellant", because he was not appealing against any
decision of the labour relations officer. He should have been called "The
applicant". However, nothing turns on this. What is more important is the
citation of the respondent. It was incorrect and ambiguous. On the face of it,
the respondent was the Town Clerk. He is a separate person in law from the City
of Harare. If it was intended that he should be the respondent, then Mr Cinamon
was mistaken. The respondent was, in reality, the City of Harare. It should
have been cited as such. It is quite apparent from the ruling of the Chairman
of the Board that he considered the City of Harare to be the respondent. He said
so throughout his ruling.
Thus he said:
"I have found the City of Harare guilty of an unfair labour
practice."
And later:
"Both Mr Cinamon's legal representatives and the City of
Harare representatives . . . agreed to the Board considering the
matter in their absence."
Elsewhere he used expressions such as "The City of Harare
appointed M", "Though City of Harare later claim . . .", "The Council
had the discretion. . .".
The final paragraph read:
"The Board agreed that Mr Cinamon had been unfairly treated
and ordered that he be appointed to the post of City Valuer and Estates Manager
with immediate effect.
You are to comply with this order on or before the 10th
August 1989."
Mr Cinamon remains to this day unappointed. No appeal was
prosecuted against the Board's determination.
Mr Cinamon's next step was taken in terms of the provisions
of s 111(3) of the Labour Relations Act, which reads:
"Any party to whom an order made in terms of sub-section (1)
relates may submit for registration copies thereof, duly certified by the
determining authority or presiding officer thereof, to whichever court would
have had jurisdiction to make the order had the matter been determined by it."
He approached the High Court by way of petition, without
notice to the Town Clerk or to the City of Harare, and on 3 November 1989 an
order was made in the High Court "that the order of the Labour Relations Board
dated the 1st August 1989 be and is hereby registered in terms of s 111(3) of
the Labour Relations Act, No. 16 of 1985".
That order then became, in effect, a High Court order - see
s 111(4). It was served on the Town Clerk on 1 December 1989.
The return of service reads as follows as to the manner of
service:
"By handing a copy each of the Order of Court and the Labour
Relations Act Order, thereof to Mr RT Kanengoni a responsible person and Deputy
Town Clerk (Legal) at the place of employment of the within named 1s (sic)
Respondent, the Town Clerk, City of Harare, Town House, Julius Nyerere Way,
Harare, who accepted service on behalf of the said respondent and by exhibiting
to him the originals and by explaining to him the nature and exigency thereof."
As Mr Kanengoni is in fact the Town Clerk, the wording of
this return succeeds in perpetuating the confusion as to who was the respondent.
The next legal step taken by Mr Cinamon was that he
instituted contempt proceedings in the High Court against "the Town Clerk, City
of Harare". On 31 October 1990, Greenland J refused his application on the
grounds that the real respondent was the City Council not the Town Clerk. The
Town Clerk could not be held responsible for the City's contempt. His Lordship
referred to a letter from the Town Clerk to the Chairman of the Labour
Relations Board in which the Town Clerk made it clear that the non-compliance
with the order was because "the Council find it impossible to comply with your
order and the Council is now appealing to the High Court."
As mentioned earlier, no appeal was prosecuted, and I do not
know if one was noted and then withdrawn.
Thwarted once again, Mr Cinamon returned to the charge. He
applied through the Chamber Book for a High Court order to amend the citation
and the order of 3 November 1989 so as to delete the words "The Town Clerk".
The effect would be that the respondent would then be "City of Harare" and the
order would be directed to "City of Harare". Greenland J granted the
application, of which no notice had been given either to the Town Clerk or to
the City of Harare, on 20 November 1990. The Deputy Sheriff's return of service
dated 22 November 1990 shows that this order was served on the Mayor, the
Deputy Mayor, the Town Clerk and a number of City Councillors, chosen
apparently at random.
It was this that alerted the City Council to the fact that
an order had been made against it, and it then appealed against the High Court
order of 20 November 1990. It relied on five grounds, in summary, as follows:
1. The order was given without notice;
2. The High Court does not have power or
jurisdiction to amend its orders in such circumstances;
3. The respondent failed to follow the
procedure set out in High Court Rule 449;
4. The High Court does not have power to
amend an order of the Labour Relations Board, and to register such amended
order;
5. The respondent, by instituting contempt
proceedings against the Town Clerk, had waived its rights against the City of
Harare.
Before I proceed to deal with the merits, if that is the
right word, of this case, I must say that the legal practitioners of the
parties before the Labour Relations Board, and the Board itself, are all
deserving of censure for allowing this litigation to run off course as it has
done. Mr Cinamon's lawyer should know how to cite a Municipality. The
Municipality's lawyers should not have allowed the error to proceed unchecked.
If they had seen themselves as acting for the Town Clerk rather than the
Municipality they should have made their position clear. And finally the Board
should have clarified the matter. I may mention that we have previously had a
similar problem arising out of sloppy citation of parties before the Labour
Relations Tribunal - see Eagle Tanning (Pvt) Ltd & Anor v Employees of
Eagle Tanning (Pvt) Ltd & Anor S-238-91 at 5. It is of the utmost
importance that parties to legal proceedings should be correctly and
unambiguously cited.
Having said that, I am nonetheless satisfied that the City's
grounds of appeal are compelling. The court order of 3 November 1989 was made
in precisely the terms requested by Mr Cinamon. The court made no error. It
granted the order that was sought. If Mr Cinamon sought the wrong order from
the Labour Relations Board, that was his mistake. The court, on 3 November
1989, had no power to alter the Board's order before registering it. What the
court could not do on 3 November 1989, it also could not do, by way of
subsequent amendment, on 20 November 1990.
Moreover the court on 20 November 1990 should not have made
an order fundamentally affecting the City of Harare without notice to the City
of Harare.
And finally, insofar as the court, on 20 November 1990,
purported to be correcting an error in terms of Rule 449 of the High Court
Rules, 1971, it was wrong because it was not done on notice of motion or by
consent, and also because the error was not "a clerical mistake by the court or
a judge". Compare Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA
298 (A) at 306F et seq, Seatle v Protea Assurance Co Ltd 1984 (2) SA 537 (C),
and Bakoven (Ltd) v GJ Howes (Pty) Ltd 1992 (2) SA 466 (E).
The ambiguity or error must be corrected where it
originated, in the Labour Relations Board. I do not accept that Mr Cinamon can
be held to have waived his rights against the City of Harare by reason of his
taking contempt proceedings against the Town Clerk.
Since we are sitting to deal with an appeal from the order
of the High Court I do not think we can remit the matter to the Board. Such
action must be initiated by Mr Cinamon. We can only allow the appeal. However,
I am not disposed to order costs against Mr Cinamon, who did not appear in this
court. The City of Harare has brought these problems on its own head by failing
to draw attention at an early stage to the ambiguity behind which it now seeks
to shelter.
The appeal is allowed. The order of the High Court dated 20
November 1990 in case HC-4064-89 is set aside. In its place there will be an
order that the application is dismissed. There will be no order as to the costs
of appeal.
Manyarara JA: I
agree.
Korsah JA: I agree.
Honey &
Blanckenberg, appellant's legal practitioners