Urgent
Chamber Application
MUTEMA
J: When
the parties appeared before me in chambers on 27 January 2012, I
directed their legal practitioners to file heads of argument before I
could make a determination on the matter. This they have done. I had
discerned that the resolution of the real dispute between the parties
hinged on a point of law.
The
dispute between the parties has its genesis in matters of employment.
The
first respondent, a State certified nurse was working at Chivhu
General Hospital. There is a secondary dispute – not germane to the
resolution of real dispute before me – of who the first
respondent's employer was between the applicant and the Ministry of
Health and Child Welfare (Ministry of Health).
The
first respondent went awol/away from 27 October 2008 to 11 March,
2010. The Ministry of Health constituted a Board to investigate the
matter which Board recommended that the first respondent be charged
with misconduct for absence from duty without good cause and be
discharged from service. Thereafter the Ministry of Health charged
the first respondent with the misconduct under the Health Services
Regulations, 2006.
Whilst
the misconduct charges were pending, the first respondent instituted
his own proceedings against the applicant under section 93 of the
Labour Act [Cap
28:01]
(the Labour Act) alleging that the applicant, by preventing the first
respondent from working, perpetrated an unfair labour practice. The
labour officer referred the matter for compulsory arbitration in
terms of section 98 of the Labour Act. The arbitrator proceeded to
make an award adverse to the applicant in the applicant's absence.
The
applicant lodged an appeal against the arbitral award to the Labour
Court. During the pendency of the appeal the first respondent
registered the arbitral award in the High Court and took out a writ
of execution against the applicant's property which the second
respondent is in the process of executing. This galvanised the
applicant into filing the urgent chamber application seeking a
provisional order whose interim relief reads as follows:
“Pending
the finalisation of the matter, the applicant is granted the
following interim relief;
1.
That the first and second respondents are ordered to forthwith stop
executing on the Arbitral Award No. 15/10 of the Honourable H
Muchinako which was made on 2 June 2011 and registered with this
Honourable Court on 13 December 2011 under Case No. HC8852/11.
2.
In the event of the second respondent having removed the attached
goods for sale in execution, the second respondent is directed to
forthwith restore, replace and/or deliver the attached goods back to
the applicant's premises.”
It
is common ground that the second respondent has attached the
following property belonging to the applicant:
(a)
2 x Massey Fergusson Tractors.
(b)
2 x four wheel trailers.
(c)
11 computer sets.
(d)
6 office desks.
(e)
4 x metal filing cabinets.
(f)
CK 10 UD truck.
The
nub of the legal argument founding the application is couched in
these words:
Following
my directive that parties file heads of argument, they were in
agreement in their respective heads of argument that four issues fell
for determination. They are:
1.
Is the matter urgent;
2.
Is the applicant first respondent's employer;
3.
Is the applicant's appeal against the arbitral award properly
before the Labour Court; and
4.
Can execution of an arbitral award proceed when an appeal has been
noted against it?
The
parties were poles apart in respect of each of the issues. I shall
proceed to deal with the issues seriatim.
1.
Whether the matter is urgent
The
first respondent's contention is that the matter is not urgent
because having noted its appeal in June 2011, the applicant should
have gone a step further and applied for a stay of execution in the
Labour Court in terms of section 92E(3). It did not do so. Also,
having been served with notice of the chamber application for the
registration of the arbitral award, the applicant, instead of
approaching this court on an urgent basis, simply wrote a letter to
the Registrar exposing its wrong interpretation of the law saying:
“… we
feel that that it is unprocedural and unlawful to register an award
that has been appealed against.”
The
urgency is self-created because the applicant only acted following
attachment of its goods on 17 January 2012.
I
do not think that I should be detained by the ancillary counter
arguments like the applicant believed that the noting of the appeal
suspended operation of the arbitral award or that on the authority of
Benson
Samudzimu
v Dairiboard
Holdings Limited
HH204/10 it would have been an exercise in futility for the applicant
to oppose the registration of the arbitral award or that the
applicant believed that it was not the first respondent's employer.
The
real issue is that the need to act arose when the applicant's
property was attached on 17 January 2012.
The
often cited case of Kuvarega
v Registrar
General & Anor
1998 (1) ZLR 188 (HC) is instructive. At p 193, CHATIKOBO J said:
“What
constitutes urgency is not only the imminent arrival of the day of
reckoning; a matter is urgent, if at the time the need to act arises,
the matter cannot wait.”
Following
the attachment, the applicant filed the urgent chamber application on
24 January 2012. Prior to that the applicant was not legally
represented so it had to instruct counsel to lodge this application.
It
cannot be said that the delay of seven days was inexcusable or
inordinate. I do not think that it would have been proper for the
applicant to have approached this court on an urgent basis at the
stage when the application for the registration of the award had been
served upon it as contended for by the first respondent. That would
have been pre-mature.
Accordingly
the matter is held to be urgent.
2.
Whether the applicant is the first respondent's employer
I
am constrained not to delve into the merits and demerits of the
argument presented in respect of this issue on the ground that I do
not wish to pre-empt what the Labour Court is going to decide in the
appeal pending before it for this is one of the grounds of that
appeal. Suffice to state at this juncture that in the event that it
is found that the applicant is not the first respondent's employer
but the Ministry of Health/Public Service Commission then it would
inevitably follow that by invoking the Labour Act instead of the
Health Services Regulations S.I.117/06 the warrant of execution which
the first respondent is wielding against the applicant was borne out
of a flawed process and should therefore not be carried to fruition.
This
then constrains me to be inclined to grant the provisional order to
avoid possible irreparable harm being occasioned to the applicant.
Even the balance of convenience favours that route.
3.
Whether applicant's appeal against the arbitral award is properly
before the Labour Court
Again
I am of the considered view that this issue will feature prominently
in the appeal before the Labour Court so this court should not be
seen to be prejudging the issue. It is best to leave it for the
determination of the Labour Court.
4.
Whether execution of an arbitral award can proceed when an appeal has
been noted against
it
This
is the nub of the dispute between the parties.
In
a wide-ranging but detailed judgment GOWORA J (as she then was) in
the Sibangilize
Dhlodhlo
case supra,
held, correctly in my view, that once an arbitral award has been
appealed against, it is not capable of being executed.
The
way the learned judge articulated the difference in meaning and
effect between the provisions encompassed in section 92D and 92E of
the Labour Act on the one hand and those in section 98(10) on the
other and the authorities cited at pp 10 and 11 of the cyclostyled
judgment buttressing the presumption that in interpretation of
statutes, Parliament does not intend to alter the common law unless
it expresses its intention with irresistible clarity, sounds both
attractive and a correct exposition of the law as it currently stands
on the subject. I respectfully subscribe to it.
In
the event, it matters not that the appeal against the arbitral award
currently pending before the Labour Court is properly before it or
not. What matters at this juncture is simply that the arbitral award
has been appealed against and since section 98(1) of the Labour Act,
in contradistinction to section 92E does not provide for the
suspension of an arbitral award the moment it is appealed against,
the common law principle of suspending the operation of a judgment
appealed against comes into play.
In
the result, I find no difficulty in granting the urgent chamber
application in terms of the draft order annexed thereto.
Dzimba,
Jaravaza
& Associates,
applicant's legal practitioners
Hungwe
& Partners,
1st
respondent's legal practitioners
