CHATUKUTA
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 $177,408.00 in favour of
the respondent.
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$177,408.00 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
Mr
Hashiti,
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
Mr
Gama,
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, firstly whether the Labour Court
judgment was registrable and 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 (as he then was), citing with approval
the remarks by CHIWESHE JP (as he then was) in Olympio
& Ors v Shomet Industrial Development
HH191-12, remarked at 311B–G 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.”
(emphasis added).
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.
In
casu,
the appellant did not dispute that requirements (a), (c), (d), and
(e) were satisfied. It, however, argued that the judgment was not
sounding in money as it was not denominated in legal tender. It
further argued that the judgment was not, as a result, executable and
hence could not be registered.
As
correctly submitted by the respondent, the question whether the
judgment was sounding in money was not raised in the court a
quo.
The court a
quo
cannot therefore be faulted for failing to determine an issue that
was not raised before it. Had it done so, the court would have gone
on a frolic of its own. (See Nzara
v Kashumba
SC 18/18).
In
any event, the mere fact that the appellant is of the view that the
judgment is denominated in illegal tender does not mean that the
judgment is not sounding in money.
In
Shaun
Evans & Another v Yakub Surtee & 3 others
SC4/2012 two categories of judgments were identified. It was held
that:
“Orders
of court are, generally speaking, divided into two categories: orders
to pay a sum of money, namely, orders ad
pecuniam solvendam;
and orders to do, or abstain from doing, a particular act, or to
deliver a thing, namely, orders ad
factum praestandum.”
The
court, in that case, addressed the meaning of a judgment sounding in
money which it described as ad
pecuniam solvendum.
A judgment sounding in money therefore simply means a judgment that
requires the judgment debtor to pay an identified sum of money.
Herbstein
and Van Winsen, The Civil Practice of the High Courts of South Africa
5th ed Volume 2 at p1022
also state that ad
pecuniam solvendam
is when the court has ordered the judgment debtor to pay a sum of
money.
In
terms of the Labour Court judgment the appellant is required to pay
to the respondent a sum of US$177,408.00. The amount payable having
been specified, the judgment is sounding in money.
The
court a
quo
therefore
correctly relied on Vasco
Olympio, supra,
and Biltrans
(Pvt) Ltd v Minister of Public Service, Labour and Social Welfare &
Ors, supra,
when
it
held
that all the five requirements were met and the Labour Court judgment
was registrable.
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, supra, and Biltrans (Pvt) Ltd v Minister of Public Service,
Labour and Social Welfare & Ors, supra,
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, supra,
at 311H-312A 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).
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.
DISPOSITION
The
appeal lacks merit and ought to be dismissed.
COSTS
The
respondent prayed for costs on the legal practitioner and client
scale. Counsel for the respondent submitted that the appeal was
frivolous and vexatious, and intended at frustrating the respondent.
The prayer was resisted by the appellant.
It
has taken twenty-three years for the matter to be finalized. The
decision of the court a
quo
is
beyond reproach. The remarks by MATHONSI J (as he then was) in
Wangayi
v Mudukuti
HB 155/ 017 are apt. In finding that costs on a higher scale were
warranted, he remarked that:
“There
must be finality to litigation and courts of law should not be abused
in that manner by litigants with wounded pride and a lot of money to
waste fighting personal battles in the courts. Nothing is being
served here other than an itching ego seeking a massage in the wrong
place.”
The
appellant has hounded the respondent for the past twenty- three
years. The appellant's pride has been wounded by the numerous
successes of the respondent who is now in his late 60s. It has
therefore sought to frustrate the respondent from benefitting from
the judgments in his favour. What is evident is that the judgment of
the Labour Court was handed down on 25 September 2020. The
appellant failed to prosecute its application for leave to appeal in
the Labour Court. The application having been considered abandoned on
1 December 2020, the appellant only sought the reinstatement of the
application on 27 May 2021. As at the date of hearing of this appeal
on 28 January 2022, the appellant failed to controvert the averments
by the respondent on the history of the application for leave to
appeal. It failed to confide in the court as to the status of the
application for leave or the application for condonation for failure
to apply timeously for reinstatement of the application for leave.
The appellant seems to have failed to pursue the remedy available to
it that would enable it to challenge the decision of the Labour
Court.
It
appears that the appellant is dangling the respondent on a string so
that he does not realise the benefit of the orders issued in his
favour. Under the circumstances, the respondent is entitled to an
order for costs on the legal practitioner and client scale.
It
is accordingly ordered as follows:
The
appeal be and is hereby dismissed with costs on the legal
practitioner and client scale.
GUVAVA
JA: I
agree
MWAYERA
JA: I
agree
Nyawo
Ruzive Legal Practitioners,
appellant's Legal Practitioners
Gama
and Partners,
respondent's
Legal Practitioners
