Before the appeal could be heard, the respondent applied
for permission to lead what he referred to as further evidence, when in reality
it was fresh evidence, of facts that came into existence after the decision
appealed against had been made.
The application was strenuously opposed by counsel for the
appellant on the grounds that it was not an application to lead further
evidence within the meaning of Rule 39(4) of the Rules of the Supreme Court
(RGN 380/64) (“the Rules”) because the decision to which the application
related occurred after the decision appealed against had been made. The
contention was that the evidence of the facts sought to be led was not in
existence at the time the decision appealed against was made. It was argued,
further, by counsel for the appellant that the evidence sought to be led on
appeal was not material to the determination of the questions raised by the
appeal.
The background facts are these.
The respondent is a former employee of the appellant. On 10
January 2011, he was granted an arbitral award declaring that the termination
of his employment with the appellant was unlawful. The appellant was ordered to
reinstate the respondent or pay damages in lieu of reinstatement. The appellant
appealed to the Labour Court against the arbitral award and applied, in terms
of section 92E(3) of the Labour Act [Chapter 28:01], for an interim
determination in the form of an order suspending the enforcement of the
arbitral award pending the hearing and determination of the appeal.
Before the hearing of the application for interim
determination of the questions of suspension of the order of reinstatement of
the respondent pending the hearing and determination of the appeal against the
arbitral award, the respondent approached the Arbitrator for quantification of
damages in lieu of reinstatement. The Arbitrator entertained the application on
the ground that as there was no order from the Labour Court suspending the
arbitral award, his power to quantify the damages was unfettered. On 22 August
2011, the Arbitrator awarded the respondent a sum of $77,302= as damages in
lieu of reinstatement.
On 22 September 2011, the appellant appealed to the Labour
Court against the second arbitral award and also applied for an interim
determination in the form of an order suspending the enforcement of the award
pending the hearing and determination of the appeal. On the same day the
respondent made an application to the High Court for the registration of the
second arbitral award.
It appears that on 7 October 2011 the respondent filed with
the Labour Court papers opposing the application by the appellant for the
interim determination. The President of the Labour Court does not seem to have
seen the papers, because, on 1 November 2011, he granted an interim
determination suspending the execution of the second arbitral award pending the
hearing and determination of the appeal against it. The interim order was
granted on the ground that the application for the interim determination was
not opposed.
It is common cause that when the interim determination that
the enforcement of the second arbitral award be suspended and the order to that
effect was issued registration of the same by the High Court had not been
granted. The application for the registration of the arbitral award was granted
on 15 November 2011.
On 2 December 2011, the respondent filed at the Labour
Court the application for the rescission of the interim determination made on 1
November 2011. Before the application was heard and determined, the respondent
took out of the High Court a writ of execution on 11 January 2012 to
enforce the arbitral award.
On 27 January 2012, an urgent chamber application was made
by the appellant to the High Court for an order suspending the writ of
execution. The application was dismissed on 1 February on the ground that it
was not urgent. The appeal against that decision was lodged with the Supreme
Court on 2 February 2012. On 22 February, the learned Chief Justice granted an
interim order suspending the execution of the writ pending determination of the
appeal against the decision of the High Court “dismissing” the urgent chamber
application.
On 18 January 2013, the Labour Court rescinded the interim
order granted on 1 November 2011.
It is the order of rescission of the interim order granted
by the Labour Court which prompted the respondent to make the application to
lead 'further evidence' of the rescission to show that the interim
determination relied on by the appellant to challenge the validity of the
registration of the award had subsequently been rescinded.
The question for determination is whether the rescission
order constitutes further evidence that should have been adduced before the
High Court in the urgent chamber application.
The answer to the question is NO.
The order of rescission of judgment was not in existence at
the time the issues of urgency of the chamber application were determined. The
contention before the High Court was that the registration of the award had no
legal effect as the award had been suspended.
It was common cause that the Labour Court had the
jurisdiction to grant the interim determination suspending the arbitral award.
It granted the order suspending the enforcement of the
award before the High Court purported to register it.
The startling proposition put forward on behalf of the
respondent was that because the Labour Court was a subordinate court to the
High Court it had no power to grant the interim determination which had the
effect of interfering with the process of the High Court.
In registering the arbitral award, the High Court would
have been exercising a quasi-administrative function. The Labour Court had the
power to grant the interim determination suspending, for all purposes, the
enforcement of the award because it was the court seized with the appeal
against the arbitral award. It was in a
position to decide whether the appeal had prospects of success or not. At the
time the High Court purported to register the award there was in fact no award
to register. The award had been suspended by a court with jurisdiction to do
so.
The issues before the High Court were decided on the basis
of the evidence of an interim determination which was in existence at the time.
The evidence of rescission of the order came into existence after determination
of the issues had been made. In Bendezi Sugar Farm (Pvt) Ltd v Mhene Estates
(Pvt) Ltd 1995 (1) ZLR 135 (S)…, the Supreme Court stated as follows:
“The principles upon which this court allows the adduction
of further evidence were set out in Border Syndicate (Pvt) Ltd 1961 R & N
28 (FS). They have been applied many times since, most recently in Beval
Trading (Pvt) Ltd v Voest-Alpine Intertrading GMBH SC149-94 (not reported). There are four criteria:
1. The evidence must not, with reasonable diligence, have
been obtainable for use at the trial;
2. The evidence must be such as is presumably to be
believed or is apparently credible;
3. The evidence must be such as would probably have an
important influence on the result of the case, although it need not be
decisive;
4. Conditions since the trial must not have so changed that
the fresh evidence will prejudice the opposite party.”
See also Warren-Codrington v Forsyth Trust (Pvt) Ltd 2000 (2)
ZLR 377 (S)…,.
It is clear from the first requirement for adduction of
further evidence on appeal that the applicant must show that the evidence
sought to be adduced was available at the time the issue in respect to which it
would have been led was determined. The
evidence should not have been obtainable with reasonable diligence. Evidence
which is not in existence at the time an issue is determined is not further
evidence which was available but not obtainable with reasonable diligence. The
other requirements follow from a finding that the evidence sought to be adduced
on appeal was available at the time the issue in respect to which it is sought
to be led was determined. Once it is found that the evidence sought to be
adduced on appeal was not in existence at the time the issue in respect to which
it is sought to be led was determined there is no need to consider the other
requirements of the test for adduction of further evidence on appeal.
The evidence sought to be adduced by the respondent was not
in existence at the time the determination of issues was made by the High
Court. Counsel for the respondent conceded that the evidence of the order of
rescission of the order granted by the Labour Court, on 18 January 2013, was
not in existence on 1 February 2012 when the decision appealed against was
made. He thought that the fact that it was not available was a good reason for
it to be adduced. The fact that the order suspending the award was granted
erroneously by the Labour Court did not make the rescission of the order
further evidence that could be adduced on appeal.
The application to lead further evidence is
dismissed with costs. 