Lis Alibi Pendens or Pending Litigation re: Labour Proceedings

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

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 Labour 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.

HH148-10 : ZIMASCO (PVT) LIMITED vs FARAI MARIKANO
Ruled By: MTSHIYA J

This is an opposed application wherein the applicant seeks the following relief:

“1. Respondent shall, within two hours of the service of this order on him, restore the following property to the applicant;

(a) Mitsubishi Pajero 3.0 Registration Number AAV-5956;

(b) Laptop HP Compaq 6720;

(c) Cellphone Samsung D880;

2. The cost of this application shall be borne by the respondent.”

The relief sought arises from the fact, that, upon termination of employment, the respondent retained the applicant's property which is being claimed in the relief quoted above.

It is common cause, that, prior to 18 September 2009, the respondent was employed by the applicant as its Health Services Manager. The respondent's employment was terminated on grounds of ill-health through an internal memorandum dated 18 September 2009. The memorandum reads as follows:

“I acknowledge receipt of your memo dated 15 September 2009 including medical reports from your doctor (Mr Macheka) and some clinical psychologist (Mr Broomberg).

The letter from Mr Macheka is very clear in stating that your ill-health is such that you will not be able to resume your job after the legally stipulated one hundred and eighty days. Mr Macheka states clearly, in reference to yourself, that:

'he needs more time off work for a full resolution of his injuries though at this point one cannot state a definite time-frame and will depend on future reviews and assessment in 2 months time.'

You have now exceeded your maximum sick leave in one year period of service (that is, from 11 March 2009 to 14 September 2009). It leaves the company with very little option, therefore, than to terminate your contract of employment forthwith (that is, with effect from 18 September 2009) in accordance with section 14(4) of the Labour Act [Cap 28:01].

Please note that due to your failure to obtain your doctor's certificate by 17 July 2009, as had been instructed and as re-iterated in previous communication to you, you have forfeited your chance of being terminated through the company's medical boarding process.

Your are thus instructed to surrender all company assets in your possession to the General Manager, Shurugwi not later than close of day on Monday 21 September 2009. For avoidance of doubt, the said assets include the company PAV, laptop, cellphone and line. Failure to surrender the said company assets will result in the company instituting any legal process necessary to recover any such assets.

Your terminal benefits, which include any outstanding salary and leave days up to 18/09/09 will be deposited into your account provided an exit form has been duly completed clearing you of any outstanding liabilities to the company. Your pension benefits from both the Zimasco Pension Fund and NSSA will be processed in the normal manner.”

Paragraph 6 of the above memorandum refers to the property that the applicant wants the respondent to return to it.

The respondent admits that the property belongs to the applicant but refuses to release the property on the ground of unfair dismissal.

In his opposing affidavit, the respondent states as follows:

“1. I wish to raise a point in-limine. It is common cause, that, on 9 October 2009, I instituted proceedings in the Labour Court challenging applicant's decision to terminate my employment contract summarily, see copy of proof of service and copy of the application of review and appeal attached hereto marked annexures (A), (B), and (C).

2. It is common cause that those proceedings are still pending and have not been disposed of.

3. There is, accordingly, a litigation pending between the parties on the same cause of action and in respect of the same subject matter in the Labour Court and this honourable court should decline to exercise its jurisdiction as this is purely a labour matter which should be dealt with and has been properly placed before the Labour Court.”

The respondent further declares:

“I will state that I am in possession of the items pending the settlement of the matter as stated in above Ad Para 3.”

The respondent therefore urged the court to dismiss the application.

In his submissions, counsel for the applicant stated, that, the applicant had satisfied the requirements for an action for vindication. This, he said, was largely so because the respondent himself admitted that the assets he was in possession of belonged to the applicant.

It was submitted, that, notwithstanding the provision of section 89(6) of the Labour Act [Chapter 28:08] (“the Act”), there was no pending matter in the Labour Court relating to an employment dispute between the applicant and the respondent. That being the case, it was argued, the respondent's plea of lis alibi pendens was misplaced.

The undisputed fact was that the applicant's application was filed on 8 October 2009 while the respondent's review application/appeal in the Labour Court was filed on 9 October 2009.

It was therefore the applicant's contention, that, for the special plea to apply, there must have been an appeal/application already pending in the Labour Court.

It was further stated, that, even if such an appeal/application were pending, the court had a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens.

In the exercise of that discretion, the court would have regard to the equities and the balance of convenience in the matter.

In casu, the applicant's argument was that, with the respondent's contract of employment having terminated on 18 September 2009, it wanted its assets restored for the advancement of its business activities. The respondent had no right to hold onto the assets.

It was further submitted, that, the subsequent action placed before the Labour Court by the respondent was based on an allegation of an unfair labour practice on the part of the applicant.

However, in casu, the applicant was seeking relief based on actio rei vindication.

The matters before the courts, according to the applicant, were therefore not based on the same subject matter.

That being the case, and based on its 'full original civil jurisdiction over all persons and over all matters within Zimbabwe' it was argued, this court had jurisdiction to entertain the application unless that jurisdiction is clearly ousted in terms of legislation.

The Labour Court, it was argued, as a special court, only dealt with matters provided for in the Labour Act.

There was no provision for an application for vindication in the Labour Act. This court therefore had the jurisdiction to deal with such an application, it was submitted.

In his supplementary Heads of Argument…, the respondent argued as follows:

“1.1. The applicant, through this application, seeks the restoration of certain property that is in the respondent's possession consequent upon the employment relationship that subsists between the parties.

1.2. It is common cause that there is an ongoing labour dispute between the parties herein, in which the respondent has made an application, to the Labour Court, for a determination of his dismissal as having been unfair.

1.3. It is also common cause that the application made by the respondent, in the Labour Court, falls within the ambit of the provisions of section 89(1) of the Labour Act, more particularly section 89(1)(a).

1.4. It also follows, therefore, that the provisions of section 89(6), quoted above, apply to this matter. While the application made herein is one for the restoration of the assets in the respondent's possession as a consequence of his employment, that issue cannot be related to in isolation from the main application made by the respondent in the Labour Court, which application has the potential of disposing of the whole issue once and for all.

1.5….,.”

Relying on Zimtrade v Malord Makaya HH52-05, the respondent submitted, that, the restoration of the applicant's property could not be separated from the determination of the labour dispute.

The matter, it was argued, fell within the provisions of section 89 of the Labour Act which gives the Labour Court powers to hear and determine issues in labour disputes in the first instance.

In support of his case, the respondent quoted from Zimtrade v Malord Makaya HH52-05 where MAKARAU J…, said:

“Notwithstanding the arguments advanced by Mr Dondo, I am of the opinion, that, matters relating to suspension from employment, with or without salary, and matters relating to dismissals, are specifically within the purview of the Labour Court as these are matters that are provided for in the Act and the regulations made thereunder. There is adequate provision under the Act for setting up machinery to resolve such disputes.

Thus, following my reasoning in the SIBANDA matter, the jurisdiction of this court is specifically ousted in respect of matters of dismissals and suspensions as these are specifically provided for the Act.”….,.

The respondent went further to state, that, the same principles alluded to in Zimtrade v Malord Makaya HH52-05 had been given the same force in T.O. Nyandoro v Cimas Medical Aid Society HC6652/08 where MAKARAU JP…, again said:

“I have had occasion to comment on the jurisdiction of this and the Labour Court in MARTIN SIBANDA & ANOR v BENSON CHINEMHUTE & ANOR HH131/04. In that matter, I came to the conclusion that section 89(6) of the Act takes away the jurisdiction of this and other courts in the first instance in all matters where the Labour Court has been specifically granted jurisdiction. The meaning that I gave to the section in that judgment was that whatever the Labour Court was specifically empowered to do, it would do exclusively. I remain of the same opinion.”…,.

I now shall deal, first, with the issue of lis alibi pendens (the special plea).

Section 124 of the Labour Act provides as follows:

“(1) Where any proceedings in respect of any matter have been instituted, completed or determined in terms of this Act, no person who is aware thereof shall institute or cause to be instituted, or shall continue any other proceedings, in respect of the same or any related matter, without first advising the authority, court or tribunal which is responsible for or concerned with the second-mentioned proceedings of the fact of the earlier proceedings.

(2)….,.”

The above provision of the law does not apply to the applicant because the proceedings were not in terms of the Labour Act (i.e. action rei vindication).

This is so also mainly because at the time of instituting these proceedings the applicant was not aware of any proceedings anywhere “in respect of the same or any related matter.”

Even if the applicant might have been aware, the above law did not place an obligation on him, as indicated in the relevant section, because this action was not brought in terms of the Labour Act.

In the main, however, what comes out clearly is that there was no pending action/application in the Labour Court relating to the same matter at the time this application was filed on 8 October 2009.

The alleged pending matter was only filed on 9 October 2009, presumably as a reaction to this application.

I fully agree with the applicant, that, for the special plea to succeed the respondent must prove the following:

“4.1. That the action is already pending between the parties;

4.2 That the plaintiff has brought another action against the same defendant.

4.3 The action is based on the same cause of action and in respect of the same subject matter.”

The subject matter in the subsequent action/application in the Labour Court is unfair dismissal or labour practice whereas in casu the application is for vindication.

There was therefore no pending matter as submitted and therefore the special plea cannot stand.

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.
Ruled By: ZIYAMBI JA

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found, that, the respondents had been unlawfully dismissed and ordered their reinstatement.

Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution.

The applicant's property was attached and scheduled for removal and sale. Both the arbitral award and the quantification thereof, were, at that time, the subject of appeals before the Labour Court.

The High Court found, firstly, that, it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order. Secondly, that, the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted on behalf of the applicants, that, the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court.

In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Cap 28:01] (“the Act”) and is not suspended pending appeal.

They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award.

Accordingly, the applicant ought to have proceeded, in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal which it failed to do.

It was submitted, that, the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted, that, the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision, in terms of section 98(10) of the Labour Act, would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted, that, once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted, that, the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued, and, the entire library of the University as well as all its vehicles have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing, because, I was of the view, that, the award, having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought.

It may be that a bench of three Judges of the Supreme Court may come to a different conclusion, but, the very fact of a divergence of positions on this issue of law is what causes me to conclude, that, the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view, that, this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under Case No. HC2288/12, the stay of execution of which was refused under Case No. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

HH539-15 : TATENDA MUKAMBA and ODWELL STANLEY vs UNIBAX INVESTMENTS T/A ARUNDEL VILLAGE SPAR
Ruled By: MATANDA-MOYO J

On 4 February 2014, I issued the following order in favour of the applicants:

(1) That, the arbitral award of the arbitration tribunal granted by Honourable C.T. Kadenga on 19 February 2014, in favour of the applicants, be and is hereby registered as an order of this court.

(2) That, Respondent be and is hereby ordered to pay the sum of $20,790 (twenty thousand seven hundred and ninety dollars) to each applicant in terms of the operative part of the award.

(3) That, Respondent be and is hereby ordered to pay the costs of suit.

I have been requested to give reasons and these are they.

This is an application for registration of an arbitral award in terms of section 98(14) of the Labour Court Act [Chapter 28:01]. The applicants obtained an arbitral award in their favour on 19 February 2014 in the following:

(a) That, the respondent pay $15,785 to each applicant as back pay;

(b) That, respondent pay $155 to each applicant as cash in lieu of leave; and

(c) That, the respondent pay $3,850 to each applicant as damages in lieu of reinstatement.

The respondent opposed the registration of the award on the basis, that, the award was not authenticated as original. The respondent also argued, that, no arbitration agreement nor referral to arbitration documents were attached to the application, in compliance with the Arbitration Act [Chapter 7:15].

The respondent challenged the application in the face of an appeal pending before the Labour Court.

The respondent submitted, that, it noted an appeal before the Labour Court and such appeal has the effect of suspending the arbitral award. Once the arbitral award is suspended, it follows that it could not be registered.

It is the respondent's case, that, the arbitral award sought to be registered is patently wrong and contrary to public policy in that it was issued without the respondent having been given an opportunity to make representations.

The applicants challenged the authority of H. Maticha in deposing to an affidavit on behalf of the respondent without authorisation.

The respondent is a legal persona and any person purporting to act on its behalf must do so on the strength of resolution from the company directors....,.

The respondent opposed the granting of the relief sought on the basis that it appealed against the arbitral award that the applicant sought to register.

The respondent did not attach any proof of the appeal.

The applicants denied that such an appeal has been noted.

Even agreeing with the respondent that such appeal was noted, the position of the law is clear.

An appeal against an arbitral award, to the Labour Court, does not suspend the award appealed against. The appellant still has to seek the suspension of the award pending the appeal.

There is no evidence before me that such a relief was obtained prior to the hearing of this matter.

The applicants referred me to the case of Joseph Tapera and 17 Ors v Field Spark Investments (Pvt) Ltd HH102-13 where Justice MATHONSI quoted with approval his earlier observation in Greenland v Zimbabwe Community Health Intervention Research Project (Zichre) HH93-13…, that:

“A party which finds itself faced with an arbitral award it is challenging should take advantage of the provisions of section 92E(3) of the Labour Act [Chapter 28:01] which empowers the Labour Court to make an interim determination for the stay or suspension of an arbitral award. Where the award has not been stayed or suspended, in terms of section 92E(3), and remains extant, this court will, as a matter of principle, register the award for enforcement unless there are grounds for not doing so as provided for in Article 36 of the Model Law contained in the Arbitration Act [Chapter 2:15].”

I am of view, that, the respondent has failed to show that it noted an appeal to the Labour Court.

Even if such appeal was noted, the respondent has not obtained an order staying or suspending the execution of such award. The mere noting of an appeal to the Labour Court does not have the effect of suspending the arbitral award.

HB12-13 : RAILWAYS ASSOCIATION OF ENGINEMEN (RAE) vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

The salient facts of the matter are the following.The parties reached a dispute the issues of which were referred to the Railway Employment Council for conciliation and no agreement was reached. The issues were then referred to the arbitrator for resolution who, in turn, referred the issues to a specialist, ...

HH231-15 : TAPFUMANEYI MUDZENGERERE and OTHERS vs CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MUREMBA J

The applicants were granted an arbitral award by Arbitrator P Bvumbe in their favour on 28 August 2013. On 12 February 2014 the arbitral award was quantified. This is an application to have the arbitral award registered as an order of this court in terms of section 98(14) of the ...

THE MERITS

Mr Mucheche argued that there being nothing suspending the arbitral award in terms of section 92E of the Labour Act [Chapter 28:01] there is no impediment to its registration.

In opposing the application, the respondent stated that it is opposed to the registration of the Arbitral Award for the reason that it has since appealed against the granting of the award in the Labour Court and that appeal is still pending.

Further to that, there was also an application for an interim relief in terms of section 92E(2) of the Labour Act [Chapter 28:01] which was made to the Labour Court, which application again was still pending. The interim relief being sought was the stay of the award pending the determination of the appeal by the Labour Court.

The respondent argued that it was therefore premature for the applicants to try to enforce the award.

On the date of the hearing, the applicant's counsel brought to the attention of the court that the interim relief that the respondent was seeking in the Labour Court, for the stay of the award pending the determination of the appeal, had subsequently been dismissed on 23 May 2014 after the parties had already filed their heads of argument. This court was furnished with a copy of the court order under case number LC/H/ORD/23/2014.

In terms of section 92E(2) of the Labour Act [Chapter 28:01] an appeal does not have the effect of suspending the determination or decision appealed against.

Section 92E(3) of the Labour Act empowers the Labour Court to stay or suspend an award pending determination of an appeal.

I am in total agreement with the words of PATEL J…, in the case of Gaylord Baudi v Kenmark Builders (Pvt) Ltd HH04-12 which the applicant's counsel referred me to. He said;

“As I have already stated, section 92E(2) of the Labour Act expressly provides that an appeal against an award in terms of section 98(10) shall not operate to suspend the award. Section 92E(3) enables the Labour Court to suspend or stay an award upon application by the aggrieved party. Where no such application is made, or where it is dismissed, subsections (14) and (15) of section 98 entitle the successful party to apply for the registration and enforcement of the award.

Parliament has obviously applied its mind to the delays inherent in the appeal process and considered the policy implications of the general common law rule which automatically suspends a decision that is appealed against. It has consciously and deliberately decided that arbitral awards in the realm of labour relations should be enforced, despite any pending appeal and notwithstanding any inconvenience that such enforcement might entail.

In this context, it would be very difficult to hold that what is specifically provided for and allowed by statute should be regarded as being contrary to public policy. Any such approach would simply operate to frustrate and defeat the clear intention of Parliament.”

See also the case of Benson Samudzimu v Dairiboard Holidings Ltd HH204-10.

In casu, the arbitral award which seeks to be registered has not been set aside on review or on appeal nor has it been suspended. There is therefore no basis for this court to decline to register the arbitral award.

HH73-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs KENNETH MUNDOPA and DEPUTY SHERIFF CHIVHU
Ruled By: 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 the 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 [Chapter 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:

“It has now been settled by this Hobourable (sic) Court in the case of Sibangilizwe Dhlodhlo v Deputy Sheriff Marondera & Ors HH76-11 that an arbitral award is incapable of enforcement once an appeal has been noted against it. Consequently, the execution which the second respondent has embarked on, acting on the instructions of the first respondent, is forbidden by law.”

Following my directive, that the 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 the 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....,.

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…, in Sibangilize Dhlodhlo v Deputy Sheriff Marondera & Ors HH76-11, 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 pages 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(10) 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.

HH122-14 : ABIGAIL MVUDUDU vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

The applicant approached the court seeking an order to register an arbitral award in terms of section 98(14) of the Labour Act [Chapter 28:01] (The Act).

The brief background to the matter is that the applicant was employed by the respondent. A dispute arose which culminated in the applicant lodging a complaint of unfair labour practice with the Ministry of Labour. The issue was refered for compulsory arbitration. On 16 March 2006, the applicant obtained an award in her favour. The award was later quantified on 13 October 2010.

It is this award, as quantified, that she seeks to register.

The applicant appealed, in part, against the decision of the arbitrator on the ground that he had awarded her 40 months salary as opposed to 43 months. At the time of the hearing of this matter the appeal was still pending. On 6 December, and in HC8932/10, the respondent filed an application seeking the setting aside of the arbitral award. This application was later withdrawn.

The application is opposed by the respondent.

The applicant avers that she was a party to arbitration proceedings, the award related to her, and the copy she is presenting for registration has been duly certified. The award should be registered.

The respondent challenges the application on the basis that the application is incompetent in that it seeks to register part of the relief that was appealed against by the applicant and is still subject of an inquiry. The applicant cannot approbate and reprobate by seeking to rely on an award for registration while in the same breath seeking to impugn the same by way of appeal.

The respondent, half heartedly, challenged the application on the basis that the award was contrary to public policy. I say so because the respondent withdrew the application it had made seeking the setting aside of the arbitral award.

Secondly, although such averments were made in the notice of opposition, the issue was not persisted with in the Heads of Argument or in the submissions made in court.

It is not in dispute that the applicant's case meets the criteria as set out in Ericsson Mvududu v Agriculture and Development Authority HH286-11. On page 2 of the cyclostyled judgement, BHUNU J stated;

“In order to qualify for registration all what an applicant has to do is to satisfy the court that;

(a) He is a party to the arbitral proceedings.

(b) The award relates to him.

(c) The copy he is presenting for registration has been duly certified by the arbitrator in terms of subsection 13.

Once the applicant has satisfied the above three requirements he is entitled, as of right, to register the arbitral award in terms of section 98(14)(a) read with sub subsection (13).”

It is also not in dispute the applicant seeks to register part of the award and that she has appealed the other part which is still subject on an inquiry.

The issue then is whether it is competent for the applicant to seek registration of part of the award whilst she appeals against the one part....,.

There are two parts to the award in issue. One relates to salary and the other to benefits.

The applicant has accepted the part relating to the salary. The respondent has also accepted it as it has not cross-appealed against it. As for the benefits element, the applicant has appealed for a higher award than that granted by the arbitrator.

As BHUNU J reasoned in Erickson Mvududu v Agriculture and Development Authority HH286-11;

“The conduct does not, in my view, amount to an appeal against or rejection of the lesser amount granted by the arbitrator. It stands to reason that an appeal for more does not, without more, constitute rejection of the lesser amount already given.”

He went further and quoted from Phiri & Ors v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S) where the Supreme Court pointed out that where a litigant has only appealed against a portion of the judgement the suspension (of the decision appealed against) only applies to that portion of the judgment appealed against. It does not extend to portions not appealed against.

In casu, the award is in four parts and the relevant parts are paragraph 1 and paragraph 2. Paragraph 1 relates to salary. The applicant has not appealed against this aspect. Neither has the respondent cross-appealed against it. The respondent has not settled that part of the award.

Paragraph 2 related to benefits. The applicant has appealed praying for the quantum of damages to be increased. The respondent has not cross-appealed against granting of the award.

The amount by the arbitrator therefore stands and is therefore not subject to the universal common law that an appeal suspends the decision appealed against.

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

I dealt with this application on 19 February 2018. I delivered an ex tempore judgment in which I dismissed it with costs.On 8 May 2018 the applicant addressed a letter to the High Court Registrar. It did so through its current legal practitioners. It requested for reasons for my decision. ...

HH13-16 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: MAKONI J

The application before me is an application for leave to execute pending appeal.

The facts of the case have been covered in detail in the pleadings and what appears below is a brief summary of the relevant facts.

The applicant herein applied to this Honourable Court to have an arbitral award registered. This application was opposed by the respondent. The respondent opposed the application for two main reasons;

(i) The first was that there was an application for stay of execution of the arbitral award pending before the Labour Court at the time the applicant sought to have the arbitral award registered. The respondent also argued that they had a general appeal in the matter also pending before the Labour Court and this appeal should be heard before the arbitral award is registered....,.

At the time the application for the registration of the arbitral award was heard the Labour Court had dismissed the application for stay of execution pending appeal. This, amongst other reasons, prompted this Honourable Court to grant the application for the registration of the arbitral award.

The respondent has since appealed against the decision to grant the application to register the arbitral award. This appeal is pending before the Supreme Court.

The grounds of appeal are as follows:

“1. That the learned judge erred at law by registering the Arbitral Award in the face of the appeal against the Arbitral award and an application for leave to appeal against the dismissal of the application for stay of execution of the Arbitral award pending before the Labour Court.

2. The learned judge erred at law by not appreciating that section 98(24) of the Labour Act is worded using a permissive term, and, hence, registration of an Arbitral Award is not mandatory and where an appeal is pending before the Labour Court and there is an unresolved application for stay of execution of the Arbitral Award pending appeal, the High Court ought to have deferred such registration of such Arbitral award.”

The applicant argues that the respondent has appealed the decision made by this Honourable Court in a bid to delay execution of the arbitral award. In the result, the applicant seeks leave to execute pending the appeal.

The respondent, on the other hand, argues that their appeal is bona fide and that they have strong prospects of success on appeal. The respondents also maintain that they would suffer irreparable prejudice if the applicant was allowed leave to execute pending the finalisation of the appeal.

The sole issue for the court to decide in this matter is this whether or not leave to execute should be granted pending the finalization of the appeal.

It is trite law that when considering an application for leave to execute pending appeal the court must consider the following:

“1. The possibility of irreparable harm or prejudice being sustained by the appellant should leave to execute be granted;

2. The possibility of irreparable harm or prejudice to be suffered by the respondent should leave to execute be denied;

3. Prospects of success of the appeal.

4. Where there is possibility of irreparable harm to both parties, the hardship or convenience as the case may be.”

See Arches (Pvt) Ltd v Guthrie Holdings (Pvt) Ltd 1989 ZLR 152 (H); Dabengwa and Anor v Minister of Home Affairs and Ors 1982 (1) ZLR 223; Zimbabwe Distance (Correspondence) Education College (Pvt) Ltd v Commercial Careers College (1980) (Pvt) Ltd 1991 (2) ZLR 61.

I will begin by dealing with the respondent's prospects of success.

Upon reading the respondent's Notice of Appeal I am of the opinion that the appeal lodged by the respondent does not enjoy high prospects of success.

TSANGA J gave sufficient reasons for granting the application to have the arbitral award registered and I fail to see how she erred at law in coming to her decision.

The respondent's main grounds for contesting the application for registering the arbitral award fell away once the Labour Court dismissed the application for stay of execution. Thereafter, the respondent was grasping at straws to keep their argument alive.

For example, the argument that the registration of the award must be suspended pending appeal was simply untenable. Section 92E(2) of the Labour Act [Chapter 28:01] states that an appeal against a decision in terms of section 92E(1) of the Act does not suspend the operation of the decision appealed against; see Giya v Ribi Tiger Trading HH57-14.

In order for an arbitral award to operate it must be registered with either the Magistrates Court or with the High Court; see section 98(14) of the Labour Relations Act and Delta Beverages (Pvt) Ltd v Chimuriwo & Ors HH600-14 and Muneka & Ors v Manica Bus Co HH30-13.

It thus follows that if an appeal does not suspend the operation of an arbitral award then the arbitral award must be capable of registration with the appropriate court despite the fact that an appeal is pending.

HH562-14 : WORLD EDUCATION vs PHANUEL KAPFUDZARUWA
Ruled By: TSANGA J

This is an opposed application in which the applicant, namely, World Education, seeks a rescission of judgement in the matter HC377/14 in which the respondent was granted an order to register an arbitration award it had successfully obtained against the applicant.

The applicant seeks rescission on the basis that the order was granted erroneously since it had in fact filed its notice of opposition to the application on the strength of a pending appeal in the Labour Court, and, more significantly, on the basis of its additional application for stay of execution pending appeal in the same court.

In essence, the rescission therefore sought is in terms of Rule 449 of the High Court Rules which gives the judge or a court the authority to set aside a decision made in error.

Section 92E(3) of the Labour Act [Chapter 28:01] makes it clear that an application for stay of execution can be made in the Labour Court pending an appeal.

This was done by the applicant.

However, what has complicated the picture is that the Labour Court has since dismissed the application for stay of execution following the lodging of this application.

The respondent has argued, in limine, that, this being the case the application for rescission in this case is superfluous and serves no purpose as it can now freely go ahead with implementing the registered award unfettered.

Registration of an arbitral award generally does not deal with the merits of the matter: see Elvis Ndlovu v Higher Learning Centre HB86-10.

As stated by MTSHIYA J, in Muneka & Ors v Manica Bus Company HH30-13, the registration of an award in the High Court is generally for purposes of enforcement only since the Labour Court does not have its own enforcement machinery.

Furthermore, as he articulated therein, if an award has not been suspended or set aside on review or appeal there is no basis upon which the High Court may decline registration....,.

In casu, the matter of stay of execution has already been dealt with by the Labour Court in Judgment No. LC/H/334/14, and, therefore, in my view, there would be no merit in the applicant seeking rescission on the basis of a reason which has since been overtaken by events and which predominantly influenced its argument why it was necessary to be heard.

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

On 21 July 2015, I registered an arbitral award in favour of the applicant which was in the following terms:

“It is ordered that;

1. The arbitration award attached hereto, and granted in favour of the applicant on the 29th of October 2014, be and is hereby registered as an order of this Honourable Court.

2. The respondent be and is hereby ordered to pay the applicant $11,448=88 plus interest of 5% per annum from the date of the arbitral award up to the date of full payment.

3. Respondent shall pay costs of this application at a higher scale if it opposes the application but if it does not oppose the application each party to bear its own costs.”

The respondent has appealed against the registration of the award and has asked for my written reasons for registration.

A summary of the case is in order.

The applicant obtained an arbitral award in his favour for unfair dismissal. He was dismissed for tarnishing the image of the Zimbabwe Manpower Development Fund (ZIMDEF) by failing to pay his personal debts and drawing public attention by being pursued by the Messenger of Court at his workplace.

His conduct was deemed, by the employer, to be inconsistent with the conditions of his employment.

He disputed being guilty of misconduct on the basis that these were private debts and the charges stretched too far and were unfair.

The Messenger of Court had threatened to attach the employer's property and had disrupted business.

The arbitrator's finding was that the failure to repay debts did not justify disciplinary proceedings. The arbitrator's view was that allowing the charges to stand would set a bad precedent for labour relations.

The arbitrator who did the calculations of what was due to the applicant, who was different from the original arbitrator, ordered that he be paid $11,448=88 plus interest at 5% per annum from the date of the arbitral award to the date of full payment.

The applicant sought registration of the award in order to compel the respondent to comply with the award.

The respondent had opposed the registration in the initial instance, on the grounds that there was a pending application for interim relief in the Labour Court and that the Labour Court should be given an opportunity to make a ruling on the application for interim relief pending before it. It was argued that registration would render the Labour Court application nugatory.

It was also argued, by the respondents, that a litigant who has taken advantage of the procedure to seek interim relief would suffer the very harm from he had sought protection.

In addition, the respondent also highlighted, in its application, that it had a general appeal pending on the matter in the Labour Court besides its interim application.

At the hearing of this opposed application, on 21 July 2015, the applicant drew attention to the fact that the pending application for stay of execution pending appeal, upon which the respondent had resisted registration on the basis that it would be rendered nugatory, had since been heard and dismissed on 17 April 2015 under LC/H/349/14. As such, it was the applicant's argument that there was no basis upon which to refuse to grant registration.

The applicant further argued that the respondent's standpoint, that to register the award would be against public policy, also lacked merit.

The respondent, on the other hand, acknowledged dismissal of the application for interim relief but emphasized that it had filed an application for leave to appeal the dismissal of its application for interim relief. As a result of this pending application for leave to appeal, it was argued that I should not register the award.

Furthermore, it was the respondent's argument that the main appeal on the award had yet to be heard.

In addition, it was maintained that to register the award would be against public policy on the basis that the manner in which the calculation of the award had been done would result in tax avoidance.

At the same time, the respondent was adamant that the process that had been initiated in the Labour Court, in terms of the challenge to the arbitral award, should certainly not be ignored.

The applicant, however, resisted the respondent's argument that registering the award would be against public policy on the basis that, as this was a labour matter, Article 34 and 36 of the Uncitral Model Law set out in the Schedule to the Arbitration Act [Chapter 7:15] was not applicable.

This was said to be because the Arbitration Act and its provisions apply to matters referred to compulsory arbitration in terms of section 98(2) of the Labour Act. Reliance for this viewpoint was placed on the case of Samudzimu v Dairibord 2010 (1) ZLR 357 (H).

More significantly, the respondent put forward the argument that gone are the days when this court could argue that it cannot interfere with a labour matter as it has now been constitutionally as a court of original jurisdiction.

It was emphasised that this court therefore had jurisdiction to determine a labour matter.

Authority for this standpoint was placed on the case of Confederation of Zimbabwe Industries v Rita Marque HH125-15 whereby MATHONSI J held that section 171(1)(a) of the Constitution of Zimbabwe had reinstated the jurisdiction of the High Court in labour matters which had been ousted by section 89(6) of the Labour Act [Chapter 28:01].

Section 89(6) of the Labour Act essentially provides that no court, other than the Labour Court, shall have jurisdiction to hear and determine labour matters - which include applications and appeals.

Section 171(1)(a) of the Constitution, which is argued to have altered this position, provides that “the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

Jurisdiction of a court essentially refers to the authority that a court has to hear and determine a dispute that is brought before it. This is in distinction to the court's “inherent power” to do something as dealt with by section 176 of our Constitution.

In terms of this section, the Constitutional Court, the Supreme Court, and the High Court all have inherent powers “to protect and regulate their own process and to develop the common law or customary law taking into account the interests of justice and the provisions of this Constitution.”

Such inherent powers can thus be inherent procedural powers or inherent substantive powers and are exercised on the premise that the court in question already has jurisdiction in the first place.

Thus, regulation of process, as exhorted by section 176 of the Constitution, would be largely an exercise of inherent procedural powers; while development of common law and customary law, as per section 176 of the Constitution, would be largely an exercise of inherent substantive powers.

The respondent's argument was founded on the jurisdictional authority of the High Court, in terms of section 171(a) of the Constitution, to hear and determine a civil matter, in this instance, a labour dispute.

It was against the backdrop of the jurisdictional argument that I formulated the decision to grant the order of registration.

I took into consideration the argument advanced by the respondent, that, this court is now fully empowered to hear such labour matters as a court of original jurisdiction.

As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) of the Constitution does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force, that, in reality, places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court “jurisdiction over labour matters as conferred by an Act of Parliament.”

The applicable Act of Parliament, in labour matters, is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction, in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said that at least, in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171 of the Constitution.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful “need” for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters.

It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.

Ordinarily, existing legislative mechanisms that are in place would logically need to be followed unless there exist strong reasons for intervention or unless a reading of any specific provision suggests otherwise in terms of the jurisdiction question: see, for instance, Mapini v Omni Africa (Pvt) Ltd HH494-13 and also the discussion in Derdale Investments (Pvt) Ltd v Econet Wireless (Private) Ltd & Ors HH656-14.

Generally, it would also be amiss to lose sight of a major reason behind the creation of the Labour Court: which was that it would be a specialist court on labour issues.

More significantly, in casu, the Labour Court had already been approached as a court of original jurisdiction in terms of the appeal and interim relief sought, in keeping with legislative intention.

The approach to the High Court was registration-related because when it comes to registration of labour awards, the Labour Court clearly lacks jurisdiction as the legislature gives this power to Magistrates' Courts and the High Court depending on the value of the award.

Registration of awards, in terms of section 98(14) of the Labour Act, is, therefore, an area of Labour Law where the statute endows the Magistrate Court and the High Court with registration jurisdiction: see Trust Me Security Org v Mararike & Ors HH325-14.

Also, Articles 34 and 36 of the Unictral Model Law, Schedule to the Arbitration Act [Chapter 7:15] empower the High Court as the forum to set aside an award on specified grounds.

For the court to intervene on the basis of public policy, however, the infringement of public policy would have to be palpably outrageous. The approach is to construe public policy restrictively: see Zimbabwe Posts (Pvt) Ltd v Communications & Allied Services Workers Union HH60-14; Makonye v Ramodimoosi & Ors HH52-14; Wei Properties (Pvt) Ltd v S & T Export & Import (Pvt) Ltd HH336-13.

The respondent's reasons, in this case, were that an alternative claim for damages in lieu of reinstatement had not been made.

The principle is indeed where reinstatement has been ordered that damages be stated as an alternative to reinstatement.

This argument was put forward against the backdrop of an outstanding appeal in which the basis of the appeal is that the dismissal of the applicant was warranted. As such, the appeal should be heard since dismissal of the applicant is the real gist of its grievance.

The Appeal Court will, needless to say, address the way forward on damages such as by ordering remittal for this issue to be addressed by the arbitrator if deemed necessary.

Appeals should not be heard through the back door.

Another grievance said to justify non-registration was that the computation of tax should have been done on the whole figure instead of piece meal as the piece method employed amounted to tax evasion.

In my view, this was an issue which, if the respondent felt strongly about, should have raised with the arbitrator within 30 days of receipt of the award.

I say this because Article 33(1)(a) of the Unictral Model Law, Schedule to the Arbitration Act [Chapter 7:15] permits a party, on notice to the other party, to request the arbitral tribunal to correct any error in computation among other errors.

The respondent's argument lacked merit and was simply one of convenience and avoidance.

In any event, this court lacked the necessary details to engage effectively with this assertion. I was therefore of the view that, overall, this was not a case of compelling need that justified intervention.

Furthermore, in allowing registration, I took into account that with interim relief having been denied, the applicant also stood on firmer ground than the respondent.

In terms of section 92E(2) of the Labour Act [Chapter 28:01], the general legal position is that an appeal does not suspend the decision appealed against.

Also, in terms of section 92E(3) of the Labour Act, pending such determination, the Labour Court may make such interim determination as the justice of the case demands: see Giya v Ribi Tiger Trading HH 57-14.

In this case, the Labour Court had already decided, at the time I heard the application for registration, that interim relief did not meet the justice of the case.

The respondents heads of argument had been very clear that the application for interim relief, which was pending at the time it filed its case, was central to its opposing registration.

What was therefore instructive in registering the award was the fact that the application for stay of execution had been dismissed. It remained extant since it had not been stayed or suspended: see Greenland v Zimbabwe Community Health Intervention Research Project HH93-13.

Accordingly, the above were my reasons for registering the applicant's arbitral award.

HH286-11 : ERICSON MVUDUDU vs AGRICULTURAL AND DEVELOPMENT AUTHORITY (ARDA)
Ruled By: BHUNU J

The applicant was employed by the respondent as its Chief Executive Officer.

On 27 October 2010, he obtained an arbitral award against the respondent under the Labour Act [Chapter 28:01] in the following terms:

“In the final analysis, therefore, I order that respondent pay the claimant as follows:

1. Backpay and benefits in the sum of US$19,384=09.

2. Cash in lieu of leave.

3. Sixty (60) months salary from 26 January 2010 as damages for loss of employment in the sum of US$60,540.

4. Sixty (60) months salary as punitive damages in the sum of US$60,540.

5. Interest at the prescribed rate.”

The applicant has now filed the award for registration with this court in terms of section 98(14) of the Labour Act as a prelude to seeking payment of US$140,464=09.

Despite having been successful, to a large extent, the applicant appealed to the Labour Court against the award on the basis that the award was inadequate and the respondent cross-appealed.

The relevant section provides that:

“(14) Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of subs (13) to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any magistrates court, the High Court.

(15) Where an arbitral award has been registered in terms of subs (14) it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.”

The respondent is resisting the registration on the basis that the applicant cannot seek to enforce a judgment he has appealed against.

There are two cardinal issues for determination in this application:

(i) The first issue is whether the applicant is automatically, as a matter of right, entitled to register an award upon satisfying the conditions specified in section 98(14) of the Labour Act.

In order to qualify for registration, all what an applicant has to do is to satisfy the court that:

(a) He is a party to the arbitral proceedings.

(b) The award relates to him.

(c) The copy he is presenting for registration has been duly certified by the arbitrator in terms of subsection (13).

Once the applicant has satisfied the above three requirements, he is entitled, as of right, to register the arbitral award in terms of section 98(14) as read with sub-section (13) of the Labour Act.

Any opposition to registration is therefore limited to showing, that, the applicant has not satisfied any one or more of the three prescribed requirements for registration.

Thus, the respondent can only succeed in opposing registration if he proves, on a balance of probabilities, that:

(a) The applicant is not a part to the proceedings.

(b) The arbitral award does not relate to him.

(c) The copy presented for registration is not a duly certified copy in terms of sub section (13).

In this case, the applicant has unquestionably managed to satisfy all the three requirements for registration.

He has shown, without any contradiction, that he is a party to whom the arbitral award relates and that the copy he is presenting for registration was duly certified by the arbitrator.

According to the Thesaurus Dictionary, the term register is interpreted to mean: “list, record, catalog, roll, index, inventory, chronicle or schedule.”

Given its ordinary and grammatical meaning, by seeking registration of the arbitral award, the applicant is simply seeking, at this stage, the conversion of the award into an order of this court to render it capable of enforcement in terms of the Rules of this court since the Labour Court and related arbitration tribunals have no machinery for enforcing their judgments.

While it may be correct, that, at common law, it is incompetent for one to seek enforcement of a judgment or order one is appealing against, as articulated by STEEENKAMP AJP in Municipal & Allied Trade Union & Ors v Mec: Environmental Affairs 1999 (4) SA 1999 (4) SA 26, for purposes of registration of the arbitral award, this legal principle is inapplicable as it has no relevance to the registration process.

The Labour Act does not provide for the suspension of the registration of an arbitral award in terms of the Labour Act and I know not of any law, statutory or otherwise, that provides for the suspension of the registration of an arbitral award pending appeal.

That being the case, I can perceive no lawful reason why the applicant cannot register the arbitral award he obtained against the respondent on 27 October 2010.

Once the arbitral award is registered, we immediately proceed to the second stage where the court is enjoined to determine whether the registered award is enforceable notwithstanding the pending appeal to the Labour Court.

The first issue for determination, in this respect, is whether the noting of an appeal, by either party, suspended execution of the arbitral award pending the Labour Court's determination on appeal.

Section 92E of the Labour Act regulates appeals to the Labour Court generally. It provides that:

“92E Appeals to the Labour Court generally

(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.”

The Supreme Court has already ruled, in the case of Sagittarian (Pvt) Limited v Workers Committee, Sagittarian (Pvt) Limited 2006 (1) ZLR 115, that, the provisions of section 97(4), now 92E, do not apply to an appeal made in terms of section 98 of the Labour Act.

In other words, where an appeal is made in terms of section 98 of the Labour Act, there is no express provision in the Labour Act to the effect, that, an appeal shall not have the effect of suspending the determination or decision appealed against.

There being no such provision, one has to turn to the common law for an answer.

Van WINSEN, The Civil Practice of the Superior Courts in South Africa, 3rd Ed, at p643, states that:

“At common law, the execution of all judgments is suspended upon the noting of an appeal. The foundation of this rule is to prevent irreparable damage from being done to the intending appellant, whether such damage be done by a levy under a writ or by the execution of the judgment in any other manner appropriate to the nature of the judgment appealed from; but, by statutory instrument or rule of court, the trial court is usually empowered, upon application being made to it, to exercise a discretion in ordering execution of a judgment appealed against subject to security.”…,.

The learned author goes on to clarify the apparent confusion introduced by MUNGWIRA J in the case of Founders Building Society v Mazuka (1) ZLR 526 531 in which she quoted GILLESPIE J with approval in the case of Vengesai & Ors v Zimbabwe Glass Industries 1998 ZLR 593 (H)…, suggesting that the common law rule, that an appeal suspends the decision appealed against, is limited to superior courts of unlimited jurisdiction.

In Vengesai & Ors v Zimbabwe Glass Industries 1998 ZLR 593 (H), GILLESPIE J had this to say:

“In stating the common law, CORBETT JA referred to the automatic stay of execution upon the noting of appeal as a general rule of practice. That is, not a rule of law, but a long established practice regarded as generally binding, subject to the court's discretion. The concept of a rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal, or authority is a creature of statute and bound by the four corners of its enabling legislation. Moreover, the authorities cited by CORBETT JA are authorities relevant to appeals from superior courts.”

At p719, the learned author, however, goes on to say the rule applies to all adjudicating authorities without exception including the Magistrate's Court. He then states that:

“When a Magistrate's Court makes no order in terms of the above provisions, the ordinary common law rules govern the matter, and execution is automatically suspended by the noting of an appeal.”

The Magistrates Court, being an inferior court of limited jurisdiction, it cannot be treated differently from the Labour Court.

Thus, the noting of the appeal to the Labour Court, in terms of section 98(10) of the Labour Act, automatically suspended the arbitral award appealed against.

It is, however, common cause, that, the applicant did not appeal against the whole determination of the arbitrator. He merely appealed for a higher award than that granted by the arbitrator.

That conduct does not, in my view, amount to an appeal against or rejection of the lesser amount granted by the arbitrator. It stands to reason, that, an appeal for more does not, without more, constitute a rejection of the lesser amount already given.

In the case of Phiri & Ors v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S), the Supreme Court re-affirmed the common law position to the effect, that, in the absence of statutory provisions to the contrary, an appeal to the Labour Tribunal, now the Labour Court, suspends the decision appealed against.

The Supreme Court was, however, careful and quick to point out, that, where a litigant has only appealed against a portion of a judgment, the suspension only applies to that portion of the judgment appealed against. It does not extend to portions not appealed against.

The applicant's appeal against the non-award of more damages than those awarded by the arbitrator has therefore no bearing on the amount granted by the arbitrator. The amount granted by the arbitrator is therefore subject to the universal common law rule, that, an appeal suspends the decision appealed against.

Section 98(15) of the Labour Act, however, states, that, where an arbitral award has been registered, in terms of subsection (14), it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.

What this means is, that, upon registration with this court, an arbitral award is converted into a civil judgment of this court for purposes of enforcement only.

That being the case, this court has the power, upon proper application, to determine, in terms of the High Court Rules, whether or not execution should be effected notwithstanding the noting of appeal to the Labour Court.

In the result, it is ordered:

1. That, the application for registration of the arbitral award granted to the applicant by the arbitrator, on 27 October 2010, be and is hereby granted.

2. That, the noting of appeal to the Labour Court, in terms of section 98 of the Labour Act [Chapter 28:01] suspended the determination of the above arbitral award pending appeal.

3. That, the applicant shall not execute the registered arbitral award without leave of this court to execute the arbitral award pending appeal.

4. That, as both parties have been equally successful there is no order as to costs.

HH204-10 : BENSON SAMUDZIMU vs DAIRIBORD HOLDINGS LTD
Ruled By: CHIWESHE JP

The legal issue that arises in this chamber application is whether the provisions of the Labour Act [Chapter 20:01] exclude the jurisdiction of the High Court in areas where the Labour Court has jurisdiction.

Section 89(6) of the Labour Act provides:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

Section 89 of the Labour Act spells out the functions, powers, and jurisdiction of the Labour Court.

In Tuso v City of Harare 2004 (1) ZLR (H) BHUNU J had occasion to consider the legal import of section 89(6) of the Labour Act. The learned judge concluded…, as follows:

“It is manifestily clear to me, that, the intention of the legislature was to expressly exclude the jurisdiction of all other courts in areas where the Labour Court has jurisdiction in the first instance.”

I am in entire agreement with that conclusion.

It is important to note the historical context in which the Labour Court was created. Its predecessor, the Labour Relations Tribunal, was limited in terms of its powers and jurisdiction. Its decisions were subject to review by the High Court in much the same way as the decisions of any other domestic tribunal would be.

Even then, this court always took the view that a litigant must first exhaust the internal remedies availed to it, in terms of the Labour Act, before approaching it for relief.

The Labour Relations Tribunal was, in 2003, transformed into a court whose powers of review were the same as those of the High Court subject to the provisions of section 89(1) of the Labour Act.

The intention of the legislature clearly was to establish a one stop shop for all labour matters and provide finality in litigation involving labour issues; otherwise, why create a structure that is parallel to the High Court?

However, this exclusive jurisdiction only exists for matters provided for in section 89(1) of the Labour Act.

In the present application, the applicant seeks to register an arbitral award with this court in terms of section 98(14) of the Labour Act.

The respondent opposes the application on the basis, that, the arbitral award offends public policy in terms of art (s) 34 and 36 of the Arbitration Act.

It has incorporated, by reference, papers it filed under case number HC5560/10, a separate application, and has argued that the present application and that filed under case HC5560/10 be heard together.

I agree with the applicant, that, the correct procedure would have been for the respondent to file a counter chamber application in terms of Rule 229A of the High Court Rules which reads:

“Where a respondent files a notice of opposition and Opposing Affidavit, he may file, together with these documents, a counter application against the applicant, in the form 'mutatis mutandis' of a court application or a chamber application whichever is applicable.”

In any event, it would be improper to join the two applications, because, the time within which the second respondent under case number HC5560/10 (the arbitrator) must file a Notice of Opposition has not expired. The second respondent's defence in that application is therefore not yet known.

I have, however, taken the liberty to consider the heads of argument filed by the respondent under case 5560/10 for purposes of determining the present application.

I agree with the applicant, that, the extent to which the provisions of the Arbitration Act are applicable in labour matters is governed by section 98 of the Labour Act, subsection 2 of which provides:

“Subject to this section, the Arbitration Act [Cap 7:15] shall apply to a dispute referred to compulsory arbitration.”

Section 98 of the Labour Act provides for, inter alia, the referral of matters to compulsory arbitration, the appointment of arbitrators, appeals against decisions of arbitrators, reviews, and other remedies.

These provisions are detailed and comprehensive.

Clearly, it could not have been the intention of the legislature, that, parties aggrieved by the decision of an arbitrator, in a labour dispute, seek remedy in terms of section 34 or 36 of the Arbitration Act.

I agree with the applicant, that, the correct interpretation would be that, with regards the law, the Labour Act takes precedence over the Arbitration Act and any other enactment.

The intention of the legislature was to have all labour matters initiated and resolved to finality in terms of the Labour Act. Equally, the legislature must have intended that such matters be dealt with by the Labour Court to the exclusion of any other court.

Sections 34 and 36 of the Arbitration Act are not applicable in cases where the award sought to be challenged relates to a labour dispute. The mechanisms for challenging such awards are provided for in the Labour Act and may be accessed through the medium of the Labour Court. No other court has jurisdiction to entertain such matters.

In the present case, the respondent has lodged an appeal with the Labour Court. The appeal is still pending. Should the respondent wish to have the arbitrator's determination suspended pending appeal or dealt with in any other interim way, it is to that court that it must direct its application.

Accordingly, for as long as the arbitral award has not been suspended or set aside on review or appeal, in terms of the Labour Act, there is no basis upon which this court may decline registration of the same.

It is therefore ordered as follows:

1. The arbitral award issued by Mr A.J. Manase, an independent arbitrator, be and is hereby registered in terms of section 98(14) of the Labour Act [Chapter 28:01].

2. In terms of the said arbitral award, the respondent shall pay the applicant an amount of US$287,491.

3. The respondent is to pay the costs of this application.

HH102-13 : JOSEPH TAPERA and 17 OTHERS vs FIELD SPARK INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

This is an application for registration of an arbitral award made by arbitrator N.M. Tichiwangana on 6 February 2012 which award remains extant.

The application is opposed by the respondent, and, the thrust of such opposition is contained in paragraph 4 of the opposing affidavit of Peter Matemba which reads;

“The quantum of damages payable to the applicants is strongly disputed by the respondent. The respondent failed to timely (sic) submit its submissions for quantification of damages in issue. The award referred to was only granted in default. Subsequently, the respondent filed an application for rescission of default judgment before the arbitrator. The application is still pending.

In light of this, the present chamber application is premature as the applicants were duly served with the application for rescission of default judgment.

Instead of responding to the application for rescission of default judgment, the applicants chose to register, to prematurely register the award (sic) which has the potential of being adjusted if the application for rescission of default judgment is successful.”

I find myself having to repeat what I stated in Greenland v Zimbabwe Community Health Intervention Research Project (Zichre) HH93-13…, that;

“A party which finds itself faced with an arbitral award it is challenging should take advantage of the provisions of section 92E(3) of the Labour Act [Cap 28:01] which empowers the Labour Court to make an interim determination for the stay or suspension of an arbitral award. Where the award has not been stayed or suspended in terms of section 92E(3) and remains extant, this court will, as a matter of principle, register the award for enforcement unless there are grounds for not doing so as provided for in Article 36 of the Model Law contained in the Arbitration Act [Cap 7:15].”

Article 36 of the Model Law provides, that, recognition or enforcement of an arbitral award may only be refused at the request of the party against whom it is invoked if that party shows the court proof that;

1. A party to an arbitration agreement was under some incapacity or the agreement was invalid under the law to which the parties subjected it to or under the law of the country where the award is made.

2. The party was not given proper notice of the appointment of an arbitrator or the arbitral proceedings or was otherwise unable to present his case.

3. The award deals with a dispute not contemplated or not falling within the terms of reference to arbitration.

4. The composition of the arbitral tribunal or the procedure was not in accordance with the agreement of the parties or the law of the country where the arbitration took place.

5. The award has not yet become binding on the parties or has been set aside or suspended by a court of law.

6. The court finds, that, the subject matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe or recognition or enforcement will be contrary to the public policy of Zimbabwe.

The grounds for opposition set out by the respondent, which I have reproduced above, are not covered by Article 36 of the Model Law.

It is myopic for the respondent to think, that, an application for rescission of judgment submitted to the arbitrator, who clearly is functus officio and cannot reverse his own decision, can prevent the registration of an arbitral award which is extant.

The respondent should have sought the suspension of the award.

There is therefore no merit in the opposition. In the result, I make the following order, that:

1. The arbitral award of N.M. Tichiwangana, dated 6 February 2012, is hereby registered as an order of this court.

2. The respondent shall pay the applicants the respective sums set out in that award totalling the sum of US$38,851.

HH93-13 : SHEILA GREENLAND vs ZIMBABWE COMMUNITY HEALTH INTERVENTION RESEARCH PROJECT (ZICHIRE)
Ruled By: MATHONSI J

Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety: see Ndlovu v Higher Learning Centre HB86-10…,.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

I take the view, that, even if the respondent had sought to rely on the review application filed in the Labour Court, which it has not done, the applicant would still be entitled to have the award registered because it remains effectual and in force. It has not been set aside or suspended pending the hearing of the review application.

In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

While the Labour Act is silent on the effect of a review application, it would be absurd to formulate a construction that would allow litigants to circumvent the provisions of section 92E(2) of the Labour Act by couching their challenge of an arbitral award to the Labour Court as a review instead of an appeal.

Clearly, such a review application would not suspend the award.

A party which finds itself faced with an arbitral award it is challenging should take advantage of the provisions of section 92E(3) of the Labour Act, which empowers the Labour Court to make any interim determination for the stay or suspension of an arbitral award.

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

This application is made in terms of Article 34 of the Uncitral Model Law which is a schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award issued by the arbitrator, K. Segula, on 29 July 2014, in terms of which she quantified the respondent's damages in lieu of reinstatement as $87,640 made up of:

(i) $1,400 May 2003 salary;
(ii) $50,400 damages;
(iii) $35,000 pension contributions; and
(iv) $840 cash in lieu of leave.

The applicant employed the respondent as a Personal Assistant to its President and Chief Executive Officer from 2 September 2002. The relationship between the parties deteriorated when the respondent complained of sexual harassment by her immediate superior. The employment contract was terminated giving rise to a labour dispute which eventually went to arbitration.

On 24 March 2014, the arbitrator issued an arbitral award, the import of which was that the respondent had been unfairly dismissed.

It is not clear from the papers why the matter took almost 10 years to finalise if indeed the respondent had been dismissed on 19 June 2003.

Whatever the case, the applicant did not reinstate the respondent, necessitating a second hearing before the arbitrator for purposes of quantification of damages due to the respondent.

The quantification hearing occurred on 10 June 2014, but not before the applicant had, on 17 April 2014, noted an appeal against the initial award to the Labour Court.

At the conclusion of oral submissions, the parties agreed to make written closing submissions.

The applicant's legal practitioner undertook to submit his on 16 June 2014 after which the respondent was to submit hers. The period was later extended by the arbitrator as a result of which the applicant's submissions were to be filed by 25 June 2014 with the respondent obliging on 30 June 2014.

The closing submissions were eventually filed by both parties and the arbitrator quantified the damages and delivered her award aforesaid on 29 July 2014.

Problems started again.

The applicant appealed against the second award to the Labour Court. The applicant also launched this application for the setting aside of the award.

In its founding affidavit, deposed to by its Finance Manager, McShaman Kembo, the applicant stated that the award ought to be set aside on two (2) grounds, namely:

(i) That, it deals with a dispute not contemplated by or not falling within the terms of the arbitration, or contains decisions on matters beyond the scope of the arbitration in that while the arbitrator was only seized with the issue of damages in lieu of reinstatement, she had gone beyond her mandate by dealing with and awarding a sum of $35,000 in respect of pension contributions.

(ii) The second ground is that the award is in conflict with the public policy of Zimbabwe in the sense, that, there was a breach of the rules of natural justice, in particular, the audi alteram partem rule, in that, after the parties had made oral submissions, the arbitrator allowed the respondent to produce further evidence which she went on to rely upon without according the applicant an opportunity to respond.

The evidence was in the form of a lengthy document with the title “Application in support of quantification of damages.” The write up itself is ten (10) pages to which is attached another eight (8) paged document called 'Zimbabwe All Industry Salary Survey.'

The applicant complains, that, the documents contain evidence which was not made available at the oral hearing of 10 June 2014, and that, as a result, it did not respond to it. Significantly, the arbitrator went on to rely on that un-rebutted evidence in awarding the respondent damages in lieu of reinstatement and $35,000 as pension contributions.

The respondent opposed the application, and, in her lengthy opposing papers, she complained about the non-joinder of the arbitrator in the proceedings and disputed having introduced new evidence to the prejudice of the applicant.

According to her, all that is contained in her submissions dated 30 June 2014, which I have already cited, was available at the hearing on 10 June 2014.

If the applicant had chosen not to address those issues in its closing written submissions, that should certainly not be her problem.

To the respondent, the application is another ruse being employed by the applicant to deny her justice and to wear her down.

At the hearing, the respondent, however, conceded that the issue of pension contributions was not only outside the scope of the arbitration, it had also not been brought up at the hearing on 10 June 2014.

That notwithstanding, the arbitrator made an award for it....,.

Regarding the existence of an appeal to the Labour Court, I agree with counsel for the applicant, that, an Article 34 application is available to a litigant outside the appeal procedure and now that section 171(1)(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on labour matters which had been ousted by the provisions of section 89(6) of the Labour Act [Chapter 28:01] there is nothing stopping me from exercising jurisdiction.

Section 171(1)(a) of the new Constitution provides:

“The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

To the extent that the Constitution overrides any Act of Parliament, there can scarcely be any doubt that section 171(1)(a) of the Constitution overrides section 89(6) of the Labour Act.

What this means is that, by clear constitutional provision, this court has original jurisdiction over all matters, including those of a labour nature, where prior to the new constitutional order, the Labour Court enjoyed exclusivity.

Considering that this matter has been set down and argued before me, while the appeal is still pending in the Labour Court, it is expedient that I indulge the parties and determine the matter.

In terms of Article 34(2)(a)(ii) of the Uncitral Model Law:

“An arbitral award may be set aside by the High Court only if the party making the application furnishes proof that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not submitted, only that part which contains decisions on matters not submitted to arbitration may be set aside.”

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA
Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court (court a quo) in which the court granted an application for the registration of the judgment of the Labour Court amounting to US$177,408 in favour of the respondent.FACTUAL BACKGROUNDThe labour dispute between the appellant and the respondent has ...

FACTUAL BACKGROUND

The labour dispute between the appellant and the respondent has been raging on for the past twenty-three years, dating back to 2000. The respondent was employed by the appellant as a Personnel Manager. Sometime in 2003, the appellant suspended the respondent on allegations of misconduct. The respondent challenged the suspension, resulting in a judgment by this Court, in 2012, in which the suspension was declared a nullity.

Following the nullification of the suspension, the appellant opted to retire the respondent in 2012.

The appellant paid the respondent his salaries and benefits for the period from January 2009 up to 2012 in United States dollars.

The payment for that period did not raise any dispute between the parties as the country had dollarized.

A dispute, however, arose as to the payment of salaries and benefits for the period extending from 1 April 2003 to 31 December 2008 which were denominated in Zimbabwean dollars.

The respondent filed an application in the Labour Court for the quantification of the outstanding salaries and benefits for the period 1 April 2003 to 31 December 2008 in United States Dollars.

The total amount he sought was US$1,001,381=14.

The Labour Court held, that, the respondent was not entitled to payment of benefits. It awarded him an amount of US$177,408 being arrear salaries and cash in lieu of leave with interest on the total sum payable at the prescribed rate.

PROCEEDINGS BEFORE COURT A QUO

The respondent filed an application in the court a quo for the registration of the Labour Court judgment in terms of section 92B(3) of the Labour Act [Chapter 28:01]. The respondent submitted, in the court a quo, that, the Labour Court judgment was sounding in money and could therefore be registered.

The appellant opposed the application.

It argued, that, the judgment of the Labour Court was unenforceable as it was denominated in United States dollars, which currency had ceased to be lawful currency. It submitted, that, the Labour Court erred in ordering payment in United States dollars for a debt that was incurred prior to 22 February 2019.

It was further argued, that, the judgment was therefore contra bonos mores and not registrable.

It was also argued, that, an application for leave to appeal was pending in the Labour Court under case number LC/H APP/293/2020, and, the court a quo should defer determining the application pending determination of the appeal.

In response, the respondent argued, that, the appellant was not being denied the right to pay in local currency using the Reserve Bank of Zimbabwe auction rate. He denied there being a pending application for leave to appeal. He also argued, that, the existence of an application for leave to appeal was not a valid reason for refusing to register a judgment.

DETERMINATION BY THE COURT A QUO

The court a quo found, that, the respondent had managed to satisfy the requirements for registration of the judgment of the Labour Court. It further found, that, the issue of currency of the judgment is a question of law which could only be entertained by the Supreme Court, on appeal, in terms of section 92F of the Labour Court Act. It held, that, registration of the judgment was not contrary to public policy.

The court a quo further held, that, the appellant could not seek to rely on an intended appeal as a ground for opposing the registration of the judgment, and that, in any event, the noting of an appeal does not suspend the decision appealed, and, consequently, the registration as well.

The court a quo proceeded to grant the application for the registration of the Labour Court judgment.

Aggrieved by the court a quo's decision, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo erred and misdirected itself in relying on an authority neither argued nor brought to the attention of the parties.

2. The court a quo further erred and misdirected itself in failing to exercise judicial function to determine an application before it contra the specific provision of section 92B(3) of the Labour Act.

3. The court a quo further erred in failing to distinguish between and conflating the determination of the executability of a judgment with an appeal addressing the correctness of a judgment.

4. The court further erred and misdirected itself in registering and ordering the enforcement of judgment whose enforcement is proscribed and contra statutory authority per section 22 of Finance Act and section 2 of S.I. 142/19, section 4(1)(d) of SI 33/19 and section 12A(1), 92B(3) and section 94 of the Labour Act.”

SUBMISSIONS BY THE APPELLANT

Counsel for the appellant submitted, that, to order execution on an unlawful currency is contrary to the law. He argued, that, the order issued by the court a quo was not sounding in money as it was denominated in United States dollars which, at the time, was not legal tender. He further argued, that, the court a quo could therefore not register a judgment which ordered payment of arrear salaries in illegal tender.

Counsel for the appellant argued, that, the court a quo failed to exercise its judicial function when it held, that, the matter raised a point of law which could only be determined by the Supreme Court. He submitted, that, the court a quo ought to have determined whether or not the amount in issue was legal tender rather than avoid the issue.

SUBMISSIONS BY THE RESPONDENT

Counsel for the respondent submitted, that, the court a quo was not required to go into the merits of the case as doing so would be usurping the powers of the Labour Court. He submitted, that, the court a quo did not misdirect itself in failing to deal with the issues raised by the appellant. He further submitted, that, the court a quo cannot amend the Labour Court's judgment.

Counsel submitted, that, the judgment was sounding in money thereby satisfying the requirements for registration.

He argued, that, the issue that the judgment was not sounding in money was never raised in the court a quo and could not therefore be raised for the first time before this Court.

He further submitted, that, if the Labour Court's judgment was unlawful, as alleged, the appellant ought to appeal against that decision.

ISSUES FOR DETERMINATION

Two issues fall for determination:

(i) Firstly, whether the Labour Court judgment was registrable; and

(ii) Secondly, whether the court a quo ought to have entertained the question of law raised by the appellant, that, the judgment was denominated in an illegal currency.

THE LAW AND ANALYSIS

The requirements to be satisfied in an application for the registration of an award were listed in Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306. MALABA DCJ…, citing with approval the remarks by CHIWESHE JP…, in Olympio & Ors v Shomet Industrial Development HH191-12, remarked…, as follows:

“In registering an arbitral award, the High Court and the Magistrates Court are not carrying out a mere clerical function.

While the registering Court may not go into the merits of the award, since its duty is to provide an enforcement mechanism and not to usurp the powers of the Labour Court, it must be satisfied, before registering an award, that all the necessary formalities have been complied with.

In Olympio & Ors v Shomet Industrial Development HH191-12, CHIWESHE JP at 1 and 2 of the cyclostyled judgment, outlining the requirements for registering an arbitral award, stated:

'The purpose of registration is merely to facilitate the enforcement of such an order through the mechanism availed to the High Court or the Magistrate Court, namely, the office of the Deputy Sheriff or the Messenger of Court, respectively….,.

In an application such as the present one, this Court is not required to look at the merits of the award - all that is required of this Court is that it must satisfy itself that the award was granted by a competent arbitrator, that the award sounds in money, that the award is still extant and has not been set aside on review or appeal, and that the litigants are the parties, the subject of the arbitral award. There must also be furnished, a certificate given under the hand of arbitrator….,.'

The requirements that must be satisfied before the High Court or the Magistrates Court grants an application for registration of an award are:

(a) The award must have been granted by a competent arbitrator.

(b) The award must sound in money.

(c) The award is still extant and has not been set aside on review or appeal.

(d) The litigants are the parties to the award.

(e) The award must be certified as an award of the arbitrator.”...,.

As correctly noted by the court a quo, whilst both cases related to the registration of arbitral awards, they apply with equal force to the registration of Labour Court judgments....,.

WHETHER OR NOT THE COURT A QUO OUGHT TO HAVE ENTERTAINED THE QUESTION OF LAW RAISED BY APPELLANT

The appellant submitted, that, it filed an application in the Labour Court for leave to appeal against the Labour Court judgment on the basis, that, the judgment is denominated in a currency that was not legal tender at the time the judgment was rendered.

The issue whether the Labour Court could render the judgment as it did is one that the court a quo shied away from determining, and, in our view, correctly so.

The court a quo stated that:

“The issue of the currency is one that is a question of law. It can only be entertained by the Supreme Court in terms of section 92F of the Labour Court Act. It is telling, that, the respondent, in its draft founding affidavit for an intended application for leave to appeal, raised the same issue relating to S.I. 33/19 as read with the Finance Act (No.2 of 2019). The same was raised in the draft notice of appeal. The respondent clearly realised that this Court cannot purport to review the order of the Labour Court or treat it as an appeal. It is ironic that the respondent persisted with this issue at the hearing when clearly it had no merit.”

The request by the appellants, for the court a quo to determine the issue of the currency, was, in essence, a request for the court to determine the lawfulness or correctness of the decision of the Labour Court.

The court a quo did not have the power to determine the propriety of the judgment of the Labour Court. To do so would amount to delving into the merits of the matter before the Labour Court.

The court a quo could only do so in the exercise of its review or appeal powers.

The limitation of the court a quo's powers was addressed in the remarks cited above from Vasco Olympio & Ors v Shomet Industrial Development HH191-12 and Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306 where it was clearly pronounced, that, the court a quo would not have the power to delve into the merits of the case in an application for the registration of an award, and, in this case, a Labour Court judgment.

All that the court a quo was required to do was to determine whether the requirements for registration of the judgment had been met.

It appears the appellant was mindful of the limitation of the court a quo's powers.

It argued in this Court, that, the court a quo ought to have deferred determining the application pending determination of an application for leave to appeal against the Labour Court judgment filed before the Labour Court.

It appears, from the respondent's heads of argument, that, the application was filed on 23 October 2020 and was regarded as abandoned by the Registrar of the Labour Court on 1 December 2020.

Having failed to file an application for the reinstatement of the application for leave to appeal within the time stipulated in the Labour Court Rules 2017, the appellant filed an application for condonation for the late filing of the application for reinstatement on 27 May 2021.

The appellant did not disclose to this Court the status of the application for condonation.

The court a quo could not be expected to defer the determination of the application for registration of the judgment in circumstances where there was no such application for leave pending in the Labour Court.

The court a quo did not misdirect itself in holding, that, even if there was an application for leave before the Labour Court, such application was not a barrier to the registration of the judgment.

It is trite, that, even an appeal from the Labour Court does not suspend the judgment appealed against.

The only circumstances where the High Court would be constrained to determine an application for registration is where an application for suspension of a judgment of the Labour Court is pending determination.

In Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306…, it was stated that:

“An application for registration of an arbitral award presupposes, that, there is no application made to or pending before the Labour Court for an interim order suspending the execution of the decision appealed against. A party cannot submit, for registration, an arbitral award he or she knows, or ought to know, is subject to an interim determination suspending its execution pending appeal. The High Court or Magistrates Court would be required to take into account the fact, that, there is, at the time of entertaining the application for registration, no application pending before the Labour Court for an interim determination suspending the execution of the decision appealed against.”

An application for an interim determination suspending the execution of the decision of the Labour Court is made in terms of section 92C(3) of the Labour Act.

It is common cause, that, there is no appeal against the judgment of the Labour Court before this Court which would be the basis for the application for an interim determination suspending the execution of the decision of the Labour Court.

The court a quo was correct in holding, that, an appeal on a question of law lies to the Supreme Court from any decision of the Labour Court: see section 92F of the Labour Court Act [Chapter 28:01].

In the absence of an appeal against the Labour Court judgment, this Court is constrained to determine the question relating to the correctness of the judgment of the Labour Court where the matter is not properly before it.

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Zimbabwe

Lis Alibi Pendens or Pending Litigation re: Labour Proceedings

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

HH148-10 : ZIMASCO (PVT) LIMITED vs FARAI MARIKANO
Ruled By: MTSHIYA J

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.
Ruled By: ZIYAMBI JA

HH539-15 : TATENDA MUKAMBA and ODWELL STANLEY vs UNIBAX INVESTMENTS T/A ARUNDEL VILLAGE SPAR
Ruled By: MATANDA-MOYO J

HB12-13 : RAILWAYS ASSOCIATION OF ENGINEMEN (RAE) vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

HH231-15 : TAPFUMANEYI MUDZENGERERE and OTHERS vs CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MUREMBA J

HH73-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs KENNETH MUNDOPA and DEPUTY SHERIFF CHIVHU
Ruled By: MUTEMA J

HH122-14 : ABIGAIL MVUDUDU vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

HH13-16 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: MAKONI J

HH562-14 : WORLD EDUCATION vs PHANUEL KAPFUDZARUWA
Ruled By: TSANGA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

HH286-11 : ERICSON MVUDUDU vs AGRICULTURAL AND DEVELOPMENT AUTHORITY (ARDA)
Ruled By: BHUNU J

HH204-10 : BENSON SAMUDZIMU vs DAIRIBORD HOLDINGS LTD
Ruled By: CHIWESHE JP

HH102-13 : JOSEPH TAPERA and 17 OTHERS vs FIELD SPARK INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

HH93-13 : SHEILA GREENLAND vs ZIMBABWE COMMUNITY HEALTH INTERVENTION RESEARCH PROJECT (ZICHIRE)
Ruled By: MATHONSI J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA
Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

Categories

Law Portal Zimbabwe

Lis Alibi Pendens or Pending Litigation re: Labour Proceedings

Appealed SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O. Ruled By: CHIDYAUSIKU, CJ

HH148-10 : ZIMASCO (PVT) LIMITED vs FARAI MARIKANO Ruled By: MTSHIYA J

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O. Ruled By: ZIYAMBI JA

HH539-15 : TATENDA MUKAMBA and ODWELL STANLEY vs UNIBAX INVESTMENTS T/A ARUNDEL VILLAGE SPAR Ruled By: MATANDA-MOYO J

HB12-13 : RAILWAYS ASSOCIATION OF ENGINEMEN (RAE) vs NATIONAL RAILWAYS OF ZIMBABWE Ruled By: NDOU J

HH231-15 : TAPFUMANEYI MUDZENGERERE and OTHERS vs CIVIL AVIATION AUTHORITY OF ZIMBABWE Ruled By: MUREMBA J

HH73-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs KENNETH MUNDOPA and DEPUTY SHERIFF CHIVHU Ruled By: MUTEMA J

HH122-14 : ABIGAIL MVUDUDU vs ZIMBABWE BROADCASTING HOLDINGS Ruled By: MAKONI J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD Ruled By: MANGOTA J

HH13-16 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND Ruled By: MAKONI J

HH562-14 : WORLD EDUCATION vs PHANUEL KAPFUDZARUWA Ruled By: TSANGA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND Ruled By: TSANGA J

HH286-11 : ERICSON MVUDUDU vs AGRICULTURAL AND DEVELOPMENT AUTHORITY (ARDA) Ruled By: BHUNU J

HH204-10 : BENSON SAMUDZIMU vs DAIRIBORD HOLDINGS LTD Ruled By: CHIWESHE JP

HH102-13 : JOSEPH TAPERA and 17 OTHERS vs FIELD SPARK INVESTMENTS (PVT) LTD Ruled By: MATHONSI J

HH93-13 : SHEILA GREENLAND vs ZIMBABWE COMMUNITY HEALTH INTERVENTION RESEARCH PROJECT (ZICHIRE) Ruled By: MATHONSI J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA Ruled By: MATHONSI J

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

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Law Portal
Zimbabwe

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

HH148-10 : ZIMASCO (PVT) LIMITED vs FARAI MARIKANO
Ruled By: MTSHIYA J

SC06-13 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.
Ruled By: ZIYAMBI JA

HH539-15 : TATENDA MUKAMBA and ODWELL STANLEY vs UNIBAX INVESTMENTS T/A ARUNDEL VILLAGE SPAR
Ruled By: MATANDA-MOYO J

HB12-13 : RAILWAYS ASSOCIATION OF ENGINEMEN (RAE) vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

HH231-15 : TAPFUMANEYI MUDZENGERERE and OTHERS vs CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MUREMBA J

HH73-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs KENNETH MUNDOPA and DEPUTY SHERIFF CHIVHU
Ruled By: MUTEMA J

HH122-14 : ABIGAIL MVUDUDU vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

HH13-16 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: MAKONI J

HH562-14 : WORLD EDUCATION vs PHANUEL KAPFUDZARUWA
Ruled By: TSANGA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

HH286-11 : ERICSON MVUDUDU vs AGRICULTURAL AND DEVELOPMENT AUTHORITY (ARDA)
Ruled By: BHUNU J

HH204-10 : BENSON SAMUDZIMU vs DAIRIBORD HOLDINGS LTD
Ruled By: CHIWESHE JP

HH102-13 : JOSEPH TAPERA and 17 OTHERS vs FIELD SPARK INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

HH93-13 : SHEILA GREENLAND vs ZIMBABWE COMMUNITY HEALTH INTERVENTION RESEARCH PROJECT (ZICHIRE)
Ruled By: MATHONSI J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA
Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA