This matter came before me as an urgent application.After having sight of the opposing papers filed by the respondents, I concluded that the matter was not urgent, and, by agreement of the parties, it was enrolled on my roll of opposed matters as all parties had filed all the necessary ...
This matter came before me as an urgent application.
After having sight of the opposing papers filed by the respondents, I concluded that the matter was not urgent, and, by agreement of the parties, it was enrolled on my roll of opposed matters as all parties had filed all the necessary affidavits and heads of argument.
The dispute arises out of the registration of an arbitral award by this court at the instance of the applicant.
Subsequent to the said registration, the applicant caused a writ of execution to be issued by the Registrar of this Honourable Court. The writ was served by the first respondent who attached a number of assets belonging to the fourth respondent.
When the first respondent attended at the fourth respondent's premises to remove the attached goods, the third respondent, a firm of legal practitioners engaged by the fourth respondent, intervened and allegedly advised the first respondent that the order of this court had been stayed by an order of the Labour Court.
Thereafter, the legal practitioners for the applicant, on the one hand, and those representing the fourth respondent, on the other, engaged in correspondence whose tone descended with each letter, culminating in each of them hurling insults, threats, and counter accusations.
It is sad to record that insults were traded between the legal practitioners of the applicant and the respondents.
Needless to say, the first and second respondents were not spared from this barrage.
I think it it is pertinent to remind legal practitioners, that, the second respondent and his deputies are officers of this court. In the performance of their duties, they are supposed to be impartial.
If there exists a dispute between parties, it would be foolhardy for the second respondent, especially, to be seen to be taking the side of one party against another.
If there is a court order which has been granted staying execution, as happened in this case, the second respondent cannot be expected to conclude that the court order is irregular and should be disregarded. That would lead to a breakdown in the rule of law as well as a complete disregard and breakdown of the judicial system.
For the applicant to suggest, as he did, that, the first and second respondents ought to have, upon his demand, overlooked the existence of the order of the Labour Court and proceeded to levy execution in his favour 'because the order was clearly wrong', is, to my mind, tantamount to encouraging any official to disregard orders of the courts of this country.
The respondents have no capacity to decide if an order is incompetent or otherwise. That is the function of these courts.
The first and second respondents, having been threatened with criminal sanction, wisely, in my view, decided to take no further action until a court had decided whether one or the other was in the right from a legal perspective.
They have, as a result, been brought to court for an order for mandamus for the Sheriff and his Deputy to perform their duties in terms of the law.
I cannot fault the manner in which they handled their task. The same cannot, however, be said of the legal practitioners for the applicant and the fourth respondent.
The starting point would, in my view, be the award that the applicant obtained from the arbitrator which is the causa causans of the entire dispute.
The applicant was employed by the fourth respondent as a Director of the Agricultural unit at the school. On 6 March 2009 he was dismissed following a finding that he was guilty of wilful disobedience to a lawful order.
He filed an appeal to the Minister who referred the matter to an arbitrator for conciliation.
The arbitrator heard the parties on 12 May 2009, and, on 30 June, the arbitrator issued an award in favour of the applicant. The arbitrator found that there had been unfair labour practice against the applicant and gave the following award:
(i) That the employee be paid salary arrears from 1 March 2009 to 30 June 2009 and gratuity with immediate effect;
(ii) That the employee be paid three (3) months cash in lieu of notice, gratuity, and any outstanding vacation leave days with immediate effect;
(iii) That the employee be paid damages in lieu of reinstatement. Further, that, the parties negotiate the quantum of damages payable, if they fail to agree they should refer the matter back to arbitration.
The parties did not agree on the amounts to be paid, and, as a result, on 7 June 2010, the applicant referred the dispute to the arbitrator for an assessment of the monies due and owing as damages in lieu of reinstatement.
The arbitrator, on 7 June 2010, awarded the applicant US$60,000 as damages in lieu of reinstatement.
Armed with this award, the applicant then filed a chamber application with this court for the registration of the award.
In the draft order attached to the application, he sought registration of the awards granted to him on 16 July 2009 and 7 June 2010 respectively.
The learned judge before whom the application was placed, pointed out, correctly, in my view, that the first mentioned award did not sound in money.
To comply with this query, the applicant then submitted two annexures, one of which was a payslip and the other a document which purportedly set out all the sums as salary and allowances claimed from February 2009 to June 2009. These amounts totalled US$29,367 were accordingly claimed on the amended draft order filed by the applicant.
There was, however, no indication on the papers that these amounts had been awarded by the arbitrator.
On 21 June, this court gave an order in favour of the applicant in which the arbitral award of June 2010 was registered together with an amount of US$29,367 - which clearly was not part of the award by the arbitrator.
When the parties appeared before me, I raised a query with the applicant's counsel as to the entitlement by the applicant to have this aspect of the award registered with this court.
Counsel, who had not been instructed on the circumstances surrounding the registration of the award, was unable to confirm that it was based on an award by the arbitrator.
I indicated to the parties, that, in my view, the award had been registered in error and that it was my intention to invoke Rule 449 of the Rules of the High Court and rescind that part of the order.
Accordingly, the order of this court, dated 21 June 2010, relating to an award by Mpisaunga, dated 16 July 2009, for the sum of US$29,367 is hereby rescinded.
I now turn to the dispute between the parties.
The applicant seeks an order that the process of execution be proceeded with by the first and second respondents. He also seeks an order barring the fourth respondent from interfering with the first and second respondents in the execution of their duties.
In the final relief, the applicant also sought an order to the effect that Rule 34(1) of the Labour Court Rules 2006, S.I.59/06, S.I. 59 of 2006 is ultra vires the Labour Act [Chapter 28;01].
Subsequent to his having an order issued in his favour, the applicant caused, on 23 June 2010, a writ of execution to be issued by the Registrar of this Honourable Court.
It is common cause, that, on 28 June, the first respondent attended at the premises of the fourth respondent armed with the writ and attached two buses and a tractor. Removal was scheduled for 1 July 2010.
He did not do so due to a letter, dated 30 June 2010, from Messers Kantor & Immerman which advised the first respondent that a stay of execution had been granted in favour of the fourth respondent by the Labour Court, and that, therefore, the respondent ought not to proceed further with the process.
A copy of the order, which was attached to the letter, reveals that the order staying execution was granted in chambers by KACHAMBWA President on 30 June 2010.
The president had granted a stay on the execution of the judgment relating to the damages in lieu of reinstatement but had allowed execution on the part of the award which was not the subject matter of an appeal.
It transpired that the fourth respondent had not appealed against the award of 16 July 2009 but had appealed the award issued on 7 June 2010. The applicant had apparently not been served with the Notice of Appeal.
The applicant and his legal practitioners were not convinced that the Labour Court could order stay of execution on an order emanating from this court, and, accordingly, on 14 July, the latter addressed a letter to the first respondent urging him to proceed with execution.
The first respondent complied and served a fresh notice of removal on 16 July 2010. Removal was this time scheduled for 21 July 2010.
He was unsuccessful as he was met with resistance.
In the meantime, the fourth respondent's legal practitioners had addressed a letter to the first respondent, which they copied to the applicant's legal practitioners, on 19 July, in which they intimated that the writ of execution was no more legally enforceable and warning the first respondent that he risked being charged with a criminal offence if he persisted with execution.
A further letter on the issue was written to the applicant's legal practitioners, on 22 July 2010, in which it was stated, amongst other things, that, any instructions to the first respondent to proceed with execution would be unlawful because the writ had been suspended by the Labour Court.
In view of the turn of events, the second respondent advised the first respondent to suspend execution pending the determination of the application filed by the applicant, in the Labour Court, for rescission of the order for stay of execution.
The applicant sought an explanation from the second respondent who reiterated that his office would not proceed with the process of execution until the rescission would have been determined hence the application before me as the applicant is of the view, that, until such time as the order of this court has been set aside the writ is valid.
The execution of judgments of the High Court is provided for in Order 40 of the Rules.
Rule 324 thereof provides that a writ of execution, once issued, remains in force until such time as the judgment has been satisfied.
Rule 323 provides that one or more writs may be sued out by any person in whose favour a judgment has been pronounced if such judgement has not been satisfied, stayed, or suspended.
The contention of the first and second respondents is that the writ cannot be enforced because it has been suspended by the Labour Court.
The order by the Labour Court staying execution of the order of 21 June 2010 was effected in terms of Rule 34 of the Labour Court Rules which is to the following effect:
"Where a decision, order, or determination has been registered in terms of section 92B(3) of the Act, the Court or a President sitting in chambers may, upon application, order a stay of execution of the decision, order, or determination.”
The issue which then arises is whether this was a decision, order, or determination registered according to the provisions of section 92B of the Labour Act.
Section 92B(1) of the Labour Act provides that the Labour Court may fix the date from which any decision, order, or determination made by it may operate.
Subrule (2) requires the court or the president who made the decision to submit sufficient copies of the order or decision to the Registrar, who, in turn, will provide a copy to each of the parties affected by the order or decision.
Section 92B(3) of the Labour Act, in turn, permits the registration of the order or decision with the Magistrates Court or the High Court, depending on the jurisdictional limit of the lower court.
Clearly, an award from an arbitrator cannot be registered under section 92B of the Labour Act.
A closer scrutiny of the Labour Act actually reveals that the appropriate section for the registration of such awards is section 98(14) of the Labour Act, which is, to all intents and purposes, a mirror of section 92B(3) of the Labour Act except that there is reference to an arbitrator and an arbitral award as opposed to the Labour Court and a decision, order, or determination.
In my view, the Labour Court provided for the suspension of orders or decisions registered under section 92B(3) of the Labour Court only.
The judgments registered under section 98(14) of the Labour Act have been excluded.
Any suspension of any award granted under section 98 of the Labour Act would therefore be ultra vires the Rules themselves as they have not provided for such suspension.
The matter however does not end there.
The applicant has contended, that, irrespective of what the Labour Court Rules may provide, that court does not have the jurisdiction or power to suspend or stay execution of an order or judgment of this Honourable Court.
In terms of section 92B(4) of the Labour Act, once a judgment or order has been registered with the High Court, it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.
The same provision is found in section 98(15) of the Labour Act.
Effectively, therefore, once this court issued an order registering the award in favour of the applicant; upon the registration, the award became, to all intents and purposes, a judgment of the High Court.
The contention by the applicant is that, as a result of the registration, the Labour Court ceases to have jurisdiction over the judgment and it cannot control, vary, set aside, or rescind the judgment.
I think this is a correct exposition of the law.
The effect of the registration with this court is that only the High Court, barring an appeal to the Supreme Court, can interfere with the judgment or its execution. This is because, the High Court, being a court of superior jurisdiction, has the inherent power to regulate its own proceedings as remarked by GILLESPIE J in S v Chakwinya 1997 (1) ZLR 109 (H) as follows:
“…, and the remedy for the accused here lies in the inherent jurisdiction of this court to regulate its own proceedings and to protect the rights of those coming before it."
Clearly, the import behind Rule 34(1) of the Labour Court Rules is to permit the stay of any judgment registered with a court possibly with inferior jurisdiction to it.
I say possibly because this aspect was not argued before me as that was not the situation confronting the parties. I am therefore not in a position to state, with certainty, that the Rule permits this.
It is an issue that would have to be argued before a court can pronounce on it.
What I can state is that the Rule cannot be read as giving the Labour Court the power to regulate proceedings of the High Court. To the extent that it appears to do so, the Rule, in my view, is in conflict with the Labour Act and the limited jurisdiction granted to the Labour Court in terms of section 89 thereof.
I am bolstered in this view by the comments of SANSOLE J in Chibaya v Chibaya 1985 (2) ZLR 237…, where he quoted from remarks by ROPER J in R v de Jager 1953 (2) SA 197, remarks to the following effect:
"The ordinary rule of law is that an order made by a court can (except by way of appeal or review in a higher court) not be varied except by the court itself:…,."
It is trite, that, a judicial officer cannot vary or set aside a judgment or order issued by an officer of parallel jurisdiction, except in the case of a rescission of an order granted in default, or, in restricted circumstances, in accordance with the provisions of Rule 449 of the rules of this court.
As the applicant rightly argues, if a judge cannot vary or alter aside an order issued by a judge with parallel jurisdiction (see Parker v Parker 1985 (2) ZLR 79…,.) how can it be possible for a judge from a lower court have the power to stay an order issued by a court of superior jurisdiction?
I cannot conceive of a situation where a court can lawfully interfere with execution or suspension of a court order issued by a court of superior jurisdiction to its own.
Execution is a process of the court and every court has the power to control its own process subject to the Rules of Court. In the High Court, that power is inherent: see Strime v Strime 1983 (4) SA 850; and Stumbles & Rowe v Mattinson 1989 (1) ZLR 172.
The courts in this country have all been imbued with the power to regulate their own proceedings and therefore no other court can legally interfere with those proceedings unless in an appeal or a review of the proceedings of that other, which, in any case, would have to be a court of inferior jurisdiction.
In casu, the Labour Court is not such a court as can review or subject to appeal the proceedings of the High Court and it ought not to have stayed the judgment of this court as that is not within its jurisdictional power.
I have been enjoined in this vein to find, by the applicant, that Rule 34(1) of the Labour Court Rules is ultra vires the provisions of section 92B of the Labour Act.
The award which is the subject matter of this dispute falls for registration in terms of section 98 of the Labour Act, and, therefore, this Rule does not make reference to awards registered in terms of that section, and any remarks by this court relating to section 92B of the Labour Act would be obiter.
I will therefore not venture into that territory, as I believe that the law is clearly against the Labour Court staying the execution of an order of this court - even where it has been granted through the registration process of an order, award, decision, or judgment emanating from that court or bodies under its umbrella.
Thus, the order staying execution of the judgment of this court, of 21 January 2010, does not bind this court and the stay is of no force and effect.
The writ issued in consequence of that order is therefore valid and capable of execution by the first respondent or the second respondent.
It is clear, that, as a result of the provisions of Rule 34(1) of the Labour Court Rules a lot of confusion has been evident between the litigants as to which court, between this court and the Labour Court, should be approached for relief when considering a stay of execution.
The import behind section 92B(3) and (4) as well as 98(13) and (14) of the Labour Act is to provide successful litigants under the Labour Act an avenue for the due execution of any orders or awards rendered in their favour.
The purpose was not to make this court or the Magistrates Court the owner of those orders.
However, in order for the orders to be given legal effect, for purposes of execution, the relevant sections provide, that, upon registration, the order or award becomes an order of the court in which the registration has been effected.
The legal consequences of the registration are manifold:
(i) Firstly, if there is need for a stay, in so far as the High Court is concerned, only this court can order a stay of the order. I was not addressed on the issue of an award registered in the Magistrates Court, and, in the absence of argument, I am unable to render an opinion.
(ii) Secondly, once the order is registered, only the High Court can entertain an application for rescission or variation.
The High Court does not have the jurisdiction to deal with labour matters, that being within the exclusive jurisdiction of the Labour Court and structures set up under the Labour Act. In the event that the initial order, judgment, or award has to be reviewed, rescinded, varied or interfered with in any manner, this court plays no part. It cannot determine anything to do with labour on the merits.
The absurd situation is therefore created where this court has registered an order which becomes its own, but, if either party wishes it rescinded, this court cannot consider the merits of the application as it has no jurisdiction to determine labour issues.
In the event, the parties have to utilise the structures set up under the Labour Act to regularise or deal with the dispute, and, once that is finalised, they approach the High Court to set aside its judgment which came by way of registration.
I believe that the burden on the litigant, in the existence of the need to have a multiplicity of actions, is not just unduly burdensome, it can be costly. Invariably, the employee is not legally represented and the minefield presented by the need to jump from one court to another for redress may lead to an injustice.
I would venture to suggest that the Labour Court be provided with the services of the Sheriff for purposes of effecting execution of its own judgments and this would instantly remove the confusion prevailing from the interpretation of Rule 34(1) of the Labour Court Rules.
Already, the Deputy Sheriff and the Messenger of Court are empowered to serve process of that court, and, it would be a simple thing to extend those powers to execution of judgments rendered by the court.
I turn then to the substance of the application, as to whether or not I should issue an order in favour of the applicant directing the first and second respondents to abide by their statutory duties and remove the attached assets and sell them in execution of the judgment of this court.
The powers and duties of the Sheriff are provided for in section 20(1) of the High Court Act to the following effect:
"Subject to section nineteen and to rules of court, the Sheriff shall, by himself or his deputy or an assistant deputy, execute all sentences, decrees, judgments, writs, summonses, rules, orders, warrants, commands and other processes of the High Court, and shall make a return thereof to that court together with the manner of execution thereof."
That there is a statutory obligation falling upon the shoulders of the Sheriff and his lawful deputy, in this case the first and second respondents, is not in dispute. Both are officers of this court and are bound by the High Court Act.
The question to be determined here is whether or not the applicant has made out a case requiring this court to order that the first respondent execute his mandate in terms of the writ.
The applicant has addressed this court at length on the validity of the writ. I do not believe that is the issue before me. The writ is valid until such time as the judgment of this court has been set aside.
The judgment has not.
However, each of the parties has noted an appeal against the assessment of damages by the arbitrator in the sum of US$60,000.
It is trite that a litigant who is dissatisfied with a judgment or decision may appeal against that judgment or decision.
Appeals under the Labour Act are governed by that Act. Section 92D provides:
"A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner prescribed, appeal to the Labour Court."
The effect of noting an appeal under this section is described in section 92E of the Labour Act in the following terms:
"(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 subsection (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."
In terms of subsection (2), the Legislature has finally put to rest the confusion in the law as to whether or not an appeal under the Labour Act would suspend the operation of the decision or determination appealed against.
The arbitral award was however granted in terms of section 98(9) of the Labour Act.
An appeal against the decision of the arbitrator, on a question of law, lies to the Labour Court in accordance with the provisions of section 98(10) of the Labour Act.
Where section 92E of the Labour Act provides that the noting of an appeal does not suspend the decision or determination, there is no such provision in relation to an appeal against an award by an arbitrator.
In PTC v Mahachi 1997 (2) ZLR 71 (H) CHATIKOBO J stated…,.:
"I am concerned with proceedings conducted in the public law domain under the provisions of the Act. In this domain, the common law presumption against the operation of judgments which have been appealed against applies unless the Act provides to the contrary.
In this case, the Act is silent on the issue. But, does this silence mean that Parliament intended to alter the common law position?
In Phiri & Ors v Industrial Steel & Pipe (Pvt) Ltd SC242-95 (not reported) KORSAH JA said:
'There is a presumption, in the interpretation of statutes, that Parliament does not intend to change the common law, unless it expresses its intention with irresistible clearness, or, it follows, by necessary implication, from the language of the statute in question, that it intended to effect such alteration in the common law; for 'construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself is to sin against one of the most familiar rules of construction….,.': per LORD HALSBURY LC in Bank of England v Vagliani [1891] AC 107 at 120.
I am of the opinion, that, in the absence of a clear indication by the law giver to the contrary, the common law position that the execution of all judgments is suspended upon the noting of an appeal is not ousted by the silence of the statutory instrument in terms of which the respondent's appeal to the Tribunal was lodged upon the effect of such appeal against the order made by the Minister.'"
I will consider, and accept, as CHATIKOBO J did before me in PTC v Mahachi 1997 (2) ZLR 71 (H) that the proceedings against which the appeal was noted were conducted in the public domain law under the aegis of the Labour Act. As such, in the public domain law, the common law presumption against the operation of judgments which have been appealed against operates unless the Act has provided to the contrary viz section 92E(2) of the Labour Act.
I am fortified in this view by comments made by GREENLAND J in Mushaishi v Lifeline Syndicate & Anor 1990 (1) ZLR 284 (H)…, to the following effect:
"To my mind, it would be anomalous if an administrative decision of a quasi-judicial nature, as is the case here, were to be put on a different footing from court judgments and orders.
In the absence of anything provided to the contrary in the relevant Act, such decisions must be treated as suspended pending appeal."
The sum total of the comments from the eminent jurists that I have quoted from leaves me with no other conclusion than that the arbitral award, having been appealed against, is not capable of being executed against.
To hold otherwise would be to fly in the face of age old established common law principles, let alone logic.
For a litigant to note an appeal against judgment granted in his favour, and, thereafter, to seek to execute against the same judgment with which he has clearly expressed unhappiness, is, to say the least, an abuse of court process.
ln any event, the fourth respondent has noted an appeal against the award of damages by the arbitrator.
The Labour Court is a creature of statute and is regulated strictly within the four corners of the statute which created it.
The Act that created it has not seen fit to interfere with the common law position which provides that an appeal against a judgment suspends the same.
It stands suspended and the applicant has not convinced me otherwise.
In the premises, I find that the application has no merit and it should be dismissed with an appropriate order for costs. I therefore make an order as follows:
IT IS HEREBY ORDERED AS FOLLOWS:
1. The order of this court dated 21 June be and is hereby varied by the rescission of the order for the sum of $29,367 registered in favour of the applicant as having been registered in error.
2. The application for an order of mandamus against the first and second respondents be and is hereby dismissed.
3. The applicant is ordered to pay the costs of this application.
