Martin Jongwe and Felix Dzingo v National Foods Limited

The applicants are former employees of the respondent, National Foods (Pvt) Limited. In the early 2000s, the respondent conducted a job re-evaluation exercise that increased secretaries' salaries but not those of artisans and journeymen. This resulted in artisans and journeymen (who were of a higher grade) earning less than secretaries. The applicants took the matter to the Labour Court, and in 2008, the dispute was settled in their favour. The respondent requested a stay pending a Supreme Court appeal on whether workers should be paid in United States dollars. After the Supreme Court ruled in favour of USD payment, the respondent settled with most workers, but the applicants rejected the offer, seeking payment of amounts quantified by the Labour Court. Due to inflation erosion, they engaged an actuary (Mr Muswere) to quantify amounts owed. The Labour Court accepted the actuary as an expert but found his calculations could produce unrealistic figures. The court then conducted its own research using an internet site for currency conversions and awarded the first applicant ZWL 11,417,548.17 and the second applicant ZWL 2,951,701.67, backdated with 5% interest for 14 years. Both parties appealed. The Supreme Court in SC 80/24 found that the Labour Court relied on evidence not part of pleadings or adduced at hearing, allowed the respondent's appeal, and dismissed the cross-appeal. The applicants then filed unsuccessful applications for rescission and other remedies. The present application, filed approximately seven months after the SC 80/24 judgment, seeks condonation and extension of time to apply for correction of that judgment under Rule 29(2) of the High Court Rules 2021 as read with Rule 73 of the Supreme Court Rules 2018.

• Whether the applicants satisfied the requirements for granting condonation for late filing
• Whether the delay in filing the application was adequately explained
• Whether the applicants have reasonable prospects of success in their intended application for correction of the Supreme Court judgment
• What constitutes a 'patent error or omission' within the meaning of Rule 29(1)(b) of the High Court Rules 2021
• Whether the court's judgment in SC 80/24 contains patent errors that warrant correction
• Whether costs should be awarded on a higher scale

1. The applicants' application for condonation and extension of time within which to apply for correction of judgment in SC 80/24 is granted with no order as to costs. 2. The applicants shall file their applications for correction of the judgment within five (5) days of the date of this order.

A correction application under Rule 29(1)(b) of the High Court Rules 2021 (as applied to the Supreme Court via Rule 73 of the Supreme Court Rules 2018) is limited in scope to correcting patent errors or omissions that prevent a judgment from reflecting the court's true intention. A 'patent error or omission' is one that is apparent or clear from the face of the judgment or order and results in the judgment not reflecting the intention of the judicial officer pronouncing it. The error must be attributable to the court itself. Correction applications cannot be used to alter the 'sense and substance' of a judgment, to substitute the court's reasoning with different reasoning, or to re-argue the merits of a case - such attempts amount to disguised appeals and are impermissible. For condonation to be granted, an applicant must provide a reasonable explanation for delay and demonstrate reasonable prospects of success - meaning prospects that are not remote but have a realistic chance of succeeding, based on a sound rational basis. Where a judgment states 'the cross appeal is dismissed' (singular) but two cross-appeals were before the court, this constitutes a patent error with prospects of successful correction.

The court observed that litigants should be discouraged from raising preliminary points merely as a matter of fashion, and that legal practitioners should be reminded that it is futile to raise points in limine that do not have merit or are unlikely to dispose of the matter. The court also cautioned against proceeding on a trial-and-error basis by filing successive applications in the hope that one might succeed, noting this would defeat the principle of finality in litigation. Regarding costs on a higher scale, the court emphasized that such awards should be reserved for exceptional circumstances involving vexatious and frivolous proceedings, dishonesty or fraud, reckless or malicious proceedings, deplorable attitude toward the court, or other exceptional circumstances. The mere fact that a successful party requests costs on a higher scale does not justify such an award, and courts must exercise heightened caution to ensure that punitive costs do not become a deterrent to access to justice, particularly for self-represented litigants with bona fide claims. The court noted sympathy for the fact that the applicants had acted without legal representation throughout the proceedings.

This case clarifies important principles in Zimbabwean civil procedure regarding: (1) the requirements for condonation applications, particularly the need for reasonable explanation of delay and prospects of success; (2) the limited scope of correction applications under Rule 29(1)(b) of the High Court Rules 2021 - corrections are confined to patent errors or omissions that prevent the judgment from reflecting the court's true intention, and cannot be used to re-argue a case or substitute the court's reasoning; (3) the distinction between proper correction applications and disguised appeals; (4) the principle that courts should exercise caution in awarding costs on a higher scale to avoid deterring access to justice; and (5) that preliminary objections should only be raised where they have merit and can dispose of the matter. The case serves as a warning against abuse of procedural remedies while affirming courts' inherent power to correct genuine errors that obscure their intended orders.