Urgent
Chamber Application
MATHONSI
J:
The
first, second and third respondents are former employees of the
applicant who were represented by their union namely the Transport &
General Workers Union in a labour dispute with their employer, the
applicant. The dispute went to arbitration where labour arbitrator
Lester Murenje made an arbitral award on 23 May 2014 directing the
applicant to pay the 3 respondents, along with 10 other employees,
certain sums of money in funeral allowance reimbursements by 31 May
2014.
The
applicant did not comply with the arbitral award but instead noted an
appeal to the Labour Court on points of law challenging the award
granted by the arbitrator. That appeal is yet to be determined. The
respondents then approached the Magistrates Court in Mutare and
managed to register the award for enforcement purposes in terms of
s98(14) of the Labour Act [Cap 28:01] and issued a writ of execution
against property. Acting on their instruction and in pursuance of
that writ, the Messenger of Court for Mutare promptly attached, and
removed the applicant's Volvo omnibus registration number AAS 3641
on 15 August 2014.
In
response to the attachment, the applicant has filed this urgent
application seeking the following relief:-
“TERMS
OF THE INTERIM RELIEF GRANTED
1.
The 3rd
respondent be and is hereby ordered to release and return the
following property it removed from 9B Riverside Drive Mutare:
(i)
Volvo Bus registration No AAS 3641.
TERMS
OF THE FINAL ORDER SOUGHT
1.
That the 1st, 2nd and 3rd respondents be and are hereby barred and
restrained from executing against applicant's property at 9B
Riverside Drive, Mutare until applicant (sic) appeal in case number
LC/MC/66/14 is finalised.
2.
The 1st, 2nd, 3rd and 4th respondents pays (sic) costs for this
application on the attorney-client scale”.
Never
mind that the draft order has its challenges including the fact that
it is not in Form 29C provided in the High Court Rules, but what the
applicant is saying is that, because he has noted an appeal against
the arbitral award, execution of the award should be stayed until the
appeal has been determined by the Labour Court.
Significantly,
the applicant has not sought a suspension in the Labour Court, of the
arbitral award pending the appeal.
What
has to be determined therefore is whether the applicant is entitled
to a reprieve pending an appeal noted in the Labour Court.
Section
92E(2) of the Labour Act is explicit in its application. It states:
“An
appeal in terms of subsection (1) shall not have the effect of
suspending the determination or decision appealed against.”
It
was upon a realisation that an appeal to the Labour Court on its own
would not suspend the arbitral award appealed against that the law
giver included s 92E(3) of the Act which provides:
“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
import of that provision is to allow a party to approach the Labour
Court, pending appeal, to seek a suspension of the arbitral award
where the justice of the case requires. These provisions of the
Labour Act contained in Part XI of the Act were inserted initially by
s29 of Act 17 of 2002 while s92E was introduced by s32 of Act 7 of
2005. The authority relied upon by the applicant namely Phiri &
Ors v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S) that an
appeal to the then Labour Relations Tribunal suspended the execution
of the judgment was decided on the basis of the common law before
s92E(2) was promulgated. It does not help the applicant.
I
have to restate the point I made in Chaire & Ors v Mt Darwin
Bazaar HH121/13 at p 2 that:-
“Registration,
or is it recognition or enforcement of an arbitral award can only be
refused where an application for a stay of execution or suspension of
the award is made in terms of s92E(3) of the Act or upon the person
against whom it is invoked satisfying the court of the existence of
grounds of refusal set out in Article 36 of the model law in the
Arbitration Act [Cap 7:15].
See
Tapera & Ors v Field-spart Investments (Pvt) Ltd HH103/13 at p
2”.
See
also Greenland v Zichire HH 93/13 at p 3.
A
litigant who has challenged an arbitral award by way of an appeal or
review to the Labour Court must then approach that court, not the
High Court, in terms of s92E(3) for interim relief. He cannot, when
execution is levied, rush to this court on a certificate of urgency
seeking the release of goods placed under attachment on the basis of
the appeal. This is because the legislature has seen it fit to
provide that such appeal does not suspend the award in s 92E(2) of
the Act.
Mr
Deme for the applicant, having burnt his fingers on the effect of an
appeal on an arbitral award, submitted, in trying to save the
application, that the award was not properly registered by the
Magistrates Court in that the applicant was not served with the
application for registration.
It
is trite that an application stands and falls on the founding
affidavit and that evidence cannot be led from the bar.
In
the founding affidavit, the closest the applicant comes to alluding
to that is where the applicant says the award was clandestinely
registered. The submissions made by Mr Deme that the award was not
registered are not only at variance with the evidence, that is the
founding affidavit, they amount to evidence being led from the bar
which the applicant is not entitled to do. In that regard I reject
Mr Deme's submissions as being improperly made.
Clearly
therefore the applicant has taken a wrong turn. It should have
approached the Labour Court in terms of s92E(3) of the Act for
interim relief in the form of a suspension or stay of the arbitral
award. Having failed to do so, but instead taken what is purely a
labour dispute, to this court, the applicant must leave with the
consequences.
The
application being without merit, it is accordingly dismissed with
costs.
Chibune
& Associates, applicant's legal practitioners
