The thirteen respondents in this case are former employees
of the applicant company. On 23 June 2009, they obtained an arbitral award
against the applicant. The arbitral award required the applicant to pay the
respondents a grand total of US$91,937=26 being damages for unlawful dismissal.
Aggrieved by the arbitral award, the applicant appealed to
the Labour Court but delayed in taking the necessary action to avert the risk
of enforcement of the order before the registration of the award for
enforcement. Notwithstanding the noting of appeal, section 92E of the Labour Act
[Chapter 28:01] expressly provides that an appeal to the Labour Court does not
suspend the decision appealed against. The law maker, however, provided a
safety valve by clothing the Labour Court with the power to make interim orders
which may suspend the enforcement of the arbitral award pending appeal
according to the justice of the case. It provides that:
“92E
1. An appeal in terms of this Act may address the merits of
the determination or decision appealed against.
2. An appeal in terms of subs (1) shall not have the
effect of suspending the determination or decision appealed against.
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.”…,.
It is pertinent to note that the law maker has expressly
conferred the power to suspend the enforcement of an arbitral award on the
Labour Court and not any other court. In Tuso v City of Harare 2004 (1) ZLR
this court held that the law maker has expressly excluded the High court's
jurisdiction in areas where it has expressly conferred jurisdiction on the
Labour Court. Applying the expressio unis rule, that is to say the express
mention of the Labour Court in section 92E(3) of the Labour Act [Chapter 28:01]
means that it is only the Labour Court which can issue an interim order
suspending the execution of an arbitral award in terms of the Labour Act [Chapter
28:01].
The applicant has now filed a supplementary affidavit
stating that the Labour Court has since issued an order, under case number
LC/H/200/09, suspending the arbitral award in question.
In suspending the arbitral award, the Labour Court was
within its rights. The arbitral award having been lawfully suspended, it
follows that execution was also suspended pending the outcome of the appeal in
the Labour Court. That being the case the application can only succeed.
TERMS OF THE FINAL ORDER SOUGHT
That you show cause to this Honourable court why a final
order should not be made in the following terms:
1. The provisional order granted in this case be and is
hereby granted.
INTERIM RELIEF GRANTED
Pending the determination of this matter, the applicant is
granted the following relief:
1. The fourteenth respondent be and is hereby ordered to
stay the execution of the order of this court in case number HC3240/09 pending
the finalization of the application for rescission of judgment under case number
HC1473/10.
SERVICE OF PROVISIONAL ORDER
This provisional order shall be served on the
respondents by a responsible clerk in the employ of Messrs Gill, Godlonton
& Gerrans Legal Practitioners, Harare.
