Before CHIDYAUSIKU CJ, In Chambers
This is a Chamber application in which the applicant, the Zimbabwe
Open University (hereinafter referred to as "the University"),
seeks the following relief –
(a) An order that the appeal SC25-12 be heard on an urgent basis; and
(b) A stay of the sale in execution of the University's property,
attached in pursuance of an arbitration award it has appealed
against.
The first respondent is Gideon Magaramombe (hereinafter referred to
as "Magaramombe"). The second respondent is the Deputy
Sheriff of Harare.
Magaramombe was formerly employed by the University as a lecturer.
The University terminated Magaramombe's contract of employment.
Magaramombe now disputes the termination of employment and contends
it was unlawful. The disputed termination was referred to an
arbitrator for determination. The dispute was determined in favour of
Magaramombe and the arbitrator ordered that Magaramombe be reinstated
or that alternatively he be paid damages in lieu of reinstatement.
The University appealed to the
Labour Court against the arbitrator's decision in terms of section
98(10) of the Labour Act [Chapter
28:01] (hereinafter
referred to as "the Act"). The University also applied to
the Labour Court for an order suspending the arbitral award pending
the hearing of the appeal.
That application was made in terms of section 92E(3) as read with
section 89(1)(a) of the Act.
Magaramombe elected to be paid damages in lieu of reinstatement and
requested the arbitrator to quantify the damages due to him.
During the quantification proceedings the University unsuccessfully
applied for the stay of proceedings, on the grounds that it had
applied to the Labour Court for the suspension of the arbitral award
pending the appeal.
The application for the stay of proceedings was turned down by the
arbitrator, on the ground that an appeal against an arbitral award
and an application for interim relief do not have the effect of
suspending an arbitral award.
The arbitrator thereafter awarded Magaramombe the sum of $77,302 as
damages.
On 26 September 2011 the University appealed against the award of
damages and also applied for a review of the award.
On 27 September 2011 Magaramombe applied to the High Court for
registration of the arbitral award.
The University did not oppose the application for registration, as it
was of the view that there was no need to oppose the application for
registration since it had already applied for the suspension of the
award to the Labour Court.
The University assumed that the execution of the award was dependent
on the outcome of the application to the Labour Court.
The Labour Court granted the University a stay of execution of the
arbitral award pending the hearing of the appeal on 3 November 2011.
The High Court registered the arbitral award on or about 14 November
2011.
After the registration of the arbitral award with the High Court,
Magaramombe sought to execute the award despite the suspension of the
award by the Labour Court.
The University launched an urgent application to stay the execution
to the High Court. The basis of the University's urgent application
was that the arbitral award that was executed had been suspended by
the Labour Court pending the hearing of an appeal against that award
by Labour Court.
The High Court dismissed the Chamber application.
The University noted an appeal against the dismissal.
The University now applies in Chambers for the appeal to be set down
on an urgent basis and for an order staying execution pending the
determination of that appeal.
In dismissing the urgent application the learned Judge had this to
say at pp4-5 of the cyclostyled judgment (HH-61-12):
"The last preliminary point was that the matter was not urgent.
… Ms Mberi submitted that the
applicant sat on its laurels and only acted when the day of reckoning
was at hand. She contended that the applicant should have acted on 27
November 2011 when it was served with the notice of registration of
the award.
Mr Mpofu made contradictory submissions on the failure to oppose
registration.
The first was that the noting of (the) appeal in the Labour Court
against the arbitral award automatically suspended the award. The
second was that it was hopeless to oppose without first obtaining
interim relief from the Labour Court stopping the implementation of
the arbitral award.
If the applicant believed that it was on (a) firm footing on the
first ground, then all the more reason for it to oppose registration
on that point.
But as events that transpired
after it obtained interim relief shows (sic),
the applicant believed that implementation could only be stayed by
obtaining relief from the Labour Court.
Mr Mpofu did not dispute Ms
Mberi's submission that the applicant was aware of the judgment of
Dhlodhlo
supra,
that the Labour Court
judgment could not stop a High Court order because the latter is a
court of superior jurisdiction.
… I agree with Ms Mberi that at
the very least, with this foreknowledge, the applicant, knowing that
the first respondent was seeking registration of the arbitral award,
should have diligently searched for the outcome of the application
especially after it received the interim relief it sought in order to
forestall it.
It was aware that the purpose of seeking registration was to execute.
Armed with the interim order, the applicant was duty bound to either
oppose the registration, which was granted on 15 November 2011 or to
file an application such as the present one soon thereafter.
I find that it waited until the day of reckoning precipitated by the
attachment of 26 January 2011 (2012?) to stay the execution. It did
not act with diligence. It sat on its laurels and did not act when
the time to act presented itself."
My understanding of the above
excerpts of the judgment is that the court a
quo made the following
two determinations –
(a) the matter was not urgent; and
(b) the execution of the arbitral award could not be stayed because
the award had become a High Court judgment whose execution cannot be
suspended by the Labour Court.
In this Chamber application Mr
Mpofu,
for the University, essentially argued that execution of the award of
the arbitrator was suspended by the Labour Court, which preceded the
registration of the award in the High Court. Consequently,
Magaramombe could not execute the award despite its registration with
the High Court as the execution of the award had been suspended by
the Labour Court by the time it was registered.
In other words, the award that was registered was a suspended award
which could not be executed.
Ms Mberi,
for Magaramombe, on the other hand, initially raised two preliminary
points.
She submitted that the Supreme
Court had no jurisdiction to hear the Chamber application because
there was no valid appeal before the Supreme Court. She argued that
the court a quo
simply ruled that the matter was not urgent and such ruling was
interlocutory. She contended that the University had not obtained the
leave of the court a
quo to appeal. Leave
to appeal not having been sought and granted, there can be no valid
appeal before the Supreme Court.
It was also Ms Mberi's
submission that, on the authority of Dhlodhlo
v The Deputy Sheriff for Marondera and Three Ors
HH76-11, even if the order issued by the Labour Court had stayed
execution of the award, such an order was of no force and effect
because the award had since been registered with the High Court and
thus became a High Court order which cannot be suspended by an order
of an inferior court, namely the Labour Court.
The learned Judge in the court a
quo was probably
correct in concluding that the University had authored the urgency of
the matter before him by delaying the launching of the urgent
application until the last minute.
I also accept the submission of
Ms Mberi
that a determination of whether or not a matter is urgent is
interlocutory. An appeal against such a determination would certainly
require the leave of the court a
quo. If such leave
were granted, the superior court can only interfere with such a
ruling on the basis of a misdirection or gross unreasonableness.
In casu,
as I have already stated, the learned Judge went beyond ruling on the
urgency or otherwise of the matter. The court a
quo determined that
the execution of the arbitral award could not be stayed on the basis
of a suspension order issued by the Labour Court.
The learned Judge reasoned that the Labour Court was inferior to the
High Court. Consequently, the Labour Court could not suspend a
judgment of the High Court. He concluded that once a judgment is
registered in the High Court it becomes a judgment of the High Court
and cannot be interfered with by the Labour Court.
This determination by the court a
quo is not
interlocutory. It is a definitive and final determination and
therefore appealable by the University without the need for leave of
the court a quo.
On this basis I am satisfied that the Supreme Court is properly
seized with the matter and that the relief sought in this Chamber
application relates to a matter with which the Supreme Court is
properly seized.
In this Chamber application, as I have already stated, the University
seeks the relief that the appeal be set down on an urgent basis and
that the execution of the arbitral award be stayed pending the
hearing of the appeal.
Two issues fall for determination in this Chamber application –
(1) whether or not this matter should be set down on an urgent basis;
and
(2) whether or not the University is entitled to the interim relief
of a stay of execution of the arbitral award pending the
determination of the appeal.
I will deal with the second issue first, namely the entitlement of
the University to the interim relief of a stay of execution.
The factors to be taken into account in considering the grant of
interim relief are now well settled. These are –
(1) Whether or not the party
seeking the relief has a prima
facie right, in
casu, whether the
University has a prima
facie right to stay
the execution of the sale of the attached property pending the
determination of the appeal;
(2) Whether or not the applicant, in this case the University, will
suffer irreparable harm if execution of the arbitral award is not
stayed and the appeal succeeds; and
(3) The balance of convenience.
Dealing first with the issue of
whether or not the University has a prima
facie right to the
stay of execution pending the determination of the appeal; In effect
the University is appealing against the court a
quo's determination
that the Labour Court's order suspending execution of the arbitral
award is ultra vires
because the Labour Court cannot interfere with the process of a
superior court.
Whether or not the court a
quo was correct in
this conclusion is a matter that the Appeal Court will have to
determine.
In the event of the Supreme Court determining that issue in favour of
the University, the University will have a clear right or entitlement
to a stay of execution of the arbitral award pending the hearing of
the appeal by the Labour Court.
On this basis alone, the
University has established a prima
facie case.
In my view, the University has
not only established a prima
facie case but has
very good prospects of success on appeal for the following reasons;
The University appealed against
the arbitral award in terms of section 98(10) of the Act. Section
98(10) of the Act provides as follows:
"98
Effect of reference to compulsory arbitration under Parts XI and XII
(10) An appeal on a question of law shall lie to the Labour Court
from any decision of an arbitrator appointed in terms of this
section."
Section 98 confers on the University the right of appeal against the
determination of the arbitrator on a question of law.
Having noted an appeal against
the arbitral award, the University also applied to the Labour Court
in terms of section 92E(3) as read with section 89(1)(a) of the Act
for the stay of execution of the arbitral award.
Section 93E(3) as read with
section 89(1)(a) of the Act provides as follows:
"92E
Appeals to the Labour Court generally
(3) Pending the determination of an appeal the Labour Court may make
such interim determination in the matter as the justice of the case
requires."
And:
"89
Functions, powers and jurisdiction of Labour Court
(1) The Labour Court shall exercise the following functions –
(a) hearing and determining applications and appeals in terms of this
Act or any other enactment.…"
Quite clearly, the Act conferred on the University the right to apply
for the suspension pending appeal of the arbitral award in terms of
the above section.
On 3 November 2011 the Labour
Court granted the University a stay of execution of the arbitral
award. The Labour Court in doing so was intra
vires the above cited
provisions of the Act.
On 14 November 2011 the High
Court, upon application by Magaramombe, registered the arbitral
award. Upon the registration of the arbitral award, the award became
a judgment of the High Court. See section 92B(3) and (4) of the Act.
I entertain serious doubts as to whether the mere registration of the
arbitral award with the High Court has the effect of erasing or
rendering null and void the prior order of the Labour Court
suspending execution of the arbitral award.
That, however, is an issue that
will be determined by the Appeal Court.
On the papers before me it has
been established that in the event of the University being successful
on appeal Magaramombe will not be able to restore the status
quo ante.
On this basis I am satisfied that the University will suffer
irreparable harm if interim relief is not granted.
Lastly, the balance of convenience is slightly in favour of the
University, Magaramombe is presently employed and will not be
seriously disadvantaged by the delay of the sale in execution of the
University's property.
An order leaving the property under attachment but staying execution
would meet the justice of this case.
Accordingly I order that the property belonging to the University
remain under attachment pending the determination of the appeal. The
balance of convenience also favours that the University remain in
possession of the attached property pending the determination of the
appeal.
Finally, the grant of interim relief removes the urgency of set down.
There is no indication that the papers in this matter are ready for
the hearing of the appeal. Accordingly I will not grant that relief,
except to direct that the matter be set down as soon as the record is
ready.
Costs will be costs in the cause.
Accordingly, the application to the extent stated above is granted.
Dube, Manikai & Hwacha, applicant's legal practitioners
Hogwe, Dzimirai & Partners, first respondent's legal
practitioners
