HUNGWE J:
This matter was placed before me through the Chamber Book as an urgent
application seeking the following interim relief:
"INTERIM
RELIEF GRANTED
1.
That the fifth respondent be
and is hereby ordered to temporarily stay the removal of the attached goods and
stay execution of the judgment and writ issued under case number HC 10266/11
pending the hearing of the application for stay of execution.
2.
In the event of the fifth respondent having
removed the attached property, he is hereby directed to temporarily return
possession of the property to the applicant pending the outcome of the
application for stay of execution.
SERVICE
OF THE PROVISIONAL ORDER
That service of the provisional order be
effected on the respondents by an employee of the applicant's legal
practitioners."
Background
to the Application
The applicant is a
private educational institution. It used to employ the first to fourth
respondents. That relationship terminated. In the process of termination the
matter was referred to arbitration.
On 10 October 2011 the arbitrator made an award of damages
in lieu of reinstatement in favour of the four respondents.
On 7 November 2011 the applicant lodged a Notice of Appeal
in the Labour Court against the award issued against it in favour of the
respondents stating that it only became aware of this award on 28 October 2011.
On or about 18 October
2011 the respondents' legal practitioners filed a Chamber Application for the
registration of the arbitral award in terms of s 98(14) of the Labour Act, [Cap 28:01], under case number HC 10266/11.
This application was served on the applicant.
On or about 8 November
2011, the applicant filed a Notice of Opposition. In its Opposing Affidavit the
applicant relies on two main grounds. Firstly, it states that the application
for registration is not in compliance with the law and contrary to the rules
regarding enforceability of labour judgments which are under appeal.
Secondly, the applicant
states that enforcement of the award is contrary to public policy on the basis
that an application for interim relief in which the applicant seeks to be
excused from complying with the award pending the outcome of the appeal had
been lodged.
On 30 November 2011 the
application for registration was granted by this honourable court.
On 19 December 2011 a writ of execution was issued. The
applicant states that it only became aware of the judgment on 5 January 2012
when the Deputy Sheriff served it with a Notice of Removal.
The
Basis of the Present Application
The applicant premises this application mainly on two
grounds. First, it submits that as the arbitral award is presently under appeal
in the Labour Court,
the respondents could not lawfully seek the registration of such an award since
the matter is lis pendens. Second,
the order registering the award as an order of this court was granted in error
in light of the undisputed fact that the applicant filed opposing papers
raising issues regarding the legality
of registering an award subject of appeal.
Consequently, the applicant argued, had the court been aware of the opposing
papers it would have, at the very least sought to grant audience to the
applicant before granting the order.
The
Issues
The issue before me is
whether, in light of the fact that there are allegations of an error by this
court, justice will be served by the grant of an order of stay of the writ
subsequently issued. However the parties raised interesting arguments for and against
the grant of the interim order sought.
The applicant on one hand
argued that in light of the fact that the judgment resulting in the arbitral
award is under appeal, the registration of the award ought to have been put on
hold pending the final determination of that appeal. The applicant relied on
the judgment of this court (per GOWORA J) in Sibangalizwe Dhlodhlo v The
Deputy Sheriff, Marondera & Ors HH 76/2011. In that matter this court
held that whereas s 92E provides that the noting of an appeal against an award
does not suspend the decision or determination, there is no such provision in
relation to an appeal against an award by an arbitrator. In PTC v Mahachi 1997 (2) ZLR 71 (H) this court reasoned thus:
". (in) proceedings conducted in the public law domain under the
provisions of the Act . the common law presumption against the operation of
judgments which have been appealed against applies unless the Act provides to
the contrary. In this case the Act is silent on the issue."
Relying on one of the
cardinal rules of statutory interpretation, the court came to the conclusion
that in such circumstances, there is a presumption that Parliament does not
intend to change the common law, unless it expresses its intention with
irresistible clearness, or, it follows by necessary implication from the
language of the statute in question, that it intended to effect such alteration
in the common law. (See Phiri & Ors
v Industrial Steal & Pipe (Pvt) Ltd
S-242-95).
It seems to me that the
same principles are applicable to the appeal by the applicant. I did not hear
the respondents to say that they were not aware of the appeal to the Labour Court by the
applicant.
Their argument, as I
understood it, is that the applicant was aware all along that the arbitral award
existed and was extant. It did not prosecute the application for a provisional
order wherein it sought temporary relief suspending its effect pending the
determination of the appeal since the appeal in its own right did not have the
effect of suspending the award. Attractive as this argument may sound; it is,
in my view, flawed. The fact of the matter is that by operation of law once an
appeal was noted the award was automatically suspended. This position brings me
to the second ground of the applicant's argument.
If the operation of the
arbitral award was suspended by the lodgement on the Notice of Appeal was it
competent for this court to register the arbitral award? In any event could an
error of fact regarding the existence of opposing papers at the time of the
grant of the order registering the award be discounted beyond doubt? The
respondents argued that because in Chamber Book applications the court is not
obliged to request representations from the other side therefore the order
obtained in this manner without the other side being heard cannot be impugned
on that ground. The submission could not have been seriously made since the
effect of the order sought clearly affected the rights of the other parties who
were not heard. In any event, in all likelihood, even in the absence of proof
as to what constituted the record, I can infer that the court then was unaware
of the existence of the Notice of Opposition. To hold otherwise is to impute
such ineptitude on the part of the honourable judge as would soil her
reputation without good cause. The assumption by the applicant that the papers
were not placed before her is the most probable explanation for this debacle.
Or else this court must again as a matter of conjecture explain why her
Ladyship did not see it fit to give reasons why she disregarded the forceful
arguments advanced by the applicant in its Notice of Opposition.
In conclusion therefore I
am persuaded to hold that in all the circumstances of this case, the applicant
has made a good case for the grant of an interim order as follows;
INTERIM
RELIEF GRANTED
1 That the fifth respondent be and is hereby
ordered to temporarily stay the removal
of the attached goods and stay
execution of the judgment and writ issued under case
number HC 10266/11 pending the
hearing of the application for rescission of judgment
given under case number HC 10266/11.
2
In the event of the fifth
respondent having removed the attached property, he is hereby directed to
temporarily return possession of the property to the applicant pending the
outcome of the application for rescission aforesaid.
3
There will be no order as to
costs.
Matizanadzo & Warhurst, applicant's legal practitioners
Madzivanzira,
Gama & Associates,
respondents' legal practitioners
