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 ward is registered.
(ii)
The second reason for the respondent's opposition was that, in
their view, the arbitral award was against public policy and should
not be enforced.
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 appeal 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
HH-57-14.
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.
The
argument that the award was against public policy inter alia as it
was a nullify in that it did not order damages in the alternative is
equally untenable.
The
respondents also believed that the computation of the award amounted
to tax evasion they ought to have objected to the method of
computation by using Art 33(1)(a) of the Uncitral Model Law as was
correctly pointed out by Tsanga J. The respondent did not do this and
they did not offer an explanation as to why they failed to do so.
This leads one to believe that this line of argument is not genuine
and is merely intended to buy the respondent's time.
Having
found that the respondent does not enjoy high prospects of success I
now turn to the issue of the balance of convenience and potential
prejudice to the parties.
It
is clear in this case that the applicant stands to be prejudiced
severely by not receiving remuneration for work the applicant has
already done. It is however not apparent how and why the respondent
will be severely prejudiced should execution be granted. This aspect
was considered by the Labour Court, which is seized with the main
appeal. It made the following observation:
“I
have looked at the two grounds of appeal. They raise one factual
issue. Secondly and as submitted by the respondent should the
respondent be reinstated the applicant will pay for work done. There
is therefore no prejudice to either party. The balance of convenience
favours the application be dismissed.”
The
respondent has the option of giving the applicant work so that he
earns his salary and benefits. The balance of convenience therefore
favours the granting of the application.
I
will make the following order:
1.
Leave be and is hereby granted to the applicant to execute the
judgment granted by the Honourable Court is case number HC9609/14
pending the determination of the appeal noted by the respondent in
case SC421/15.
2.
The Respondent pay costs of suit.
Chambati
Mataka & Makonese Attorneys at Law, applicant's legal
practitioners
Matsikidze
& Mucheche, respondent's legal practitioners
