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SC06-13 - UNIVERSITY OF ZIMBABWE vs KWANELE MURIEL JIRIRA and LOUIS MASUKO and THE DEPUTY SHERIFF, HARARE N.O.

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Procedural Law-viz citation re party acting in an official capacity iro nominus officiae.
Procedural Law-viz urgent chamber application re stay of execution iro Rule 5 of the Supreme Court Rules.
Procedural Law-viz urgent application re interim interdict pendente lite iro Rule 5 of the Supreme Court Rules.
Procedural Law-viz appeal re interim relief pending appeal iro Rule 5 of the Supreme Court Rules.
Labour Law-viz arbitration re registration of arbitral award iro execution of arbitral award.
Procedural Law-viz lis alibi pendens re arbitral award registration proceedings.
Procedural Law-viz pending litigation re arbitral award registration proceedings.
Procedural Law-viz jurisdiction re domestic remedies.
Procedural Law-viz jurisdiction re internal remedies.
Procedural Law-viz appeal re the principle that the noting of an appeal automatically suspends the operation of the order appealed against iro labour proceedings.
Procedural Law-viz appeal re the rule that the noting of an appeal automatically suspends the execution of the judgement appealed against iro labour proceedings.
Procedural Law-viz urgent chamber application re stay of execution iro labour proceedings.
Procedural Law-viz urgent application re interim interdict pendente lite iro labour proceedings.
Procedural Law-viz the principle that the noting of an appeal automatically suspends the execution of the judgment appealed against re labour proceedings iro section 92E of the Labour Act [Chapter 28:01].
Procedural Law-viz the rule that the noting of an appeal automatically suspends the operation of the order appealed against iro labour proceedings iro section 92 of the Labour Act [Chapter 28:01].
Procedural Law-viz urgent chamber application re urgency iro abuse of process.
Procedural Law-viz urgent application re urgency iro points of law.
Procedural Law-viz review re review jurisdiction iro section 25 of the Supreme Court Act [Chapter 7:13].
Procedural Law-viz jurisdiction re judicial deference iro assessment of prospects on appeal.
Procedural Law-viz costs re interim proceedings.
Procedural Law-viz costs re interlocutory proceedings.
Procedural Law-viz urgent chamber application re urgency iro irreparable harm.
Procedural Law-viz appeal re prospects of success on appeal iro divergent views on a point of law.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Approach and the Right of Appeal


The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act....,.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty....,.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. 

It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion, but, the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

Appeal re: Expedited Set Down of an Appeal on an Urgent Basis, Default Urgency and Interim Relief Pending Appeal

In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

Interim Interdict Pendente Lite and Stay of Execution re: Approach

In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

Interim Interdict Pendente Lite and Stay of Execution re: Labour Proceedings


In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

Arbitration re: Approach, Proceedings Before an Arbitrator and Registration and Execution of Arbitral Awards


In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

Lis Alibi Pendens or Pending Litigation re: Arbitral Award Registration Proceedings


In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

Jurisdiction re: Domestic, Internal or Local Remedies


In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Suspension of Orders Pending Appeal & Quasi-Judicial Rulings


In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Suspension of Orders Pending Appeal iro Labour Proceedings


In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

Urgency re: Point of Law


In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

Urgency re: Approach iro Time, Consequent and Remedial Alternative Considerations of Urgency


In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found;

(i) Firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order.

(ii) Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted, on behalf of the applicants, that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances, only the High Court could entertain an application for stay of execution of the award: see Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents, however, argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Chapter 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44-05.

The decision in NetOne Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S), they argued, was given prior to the introduction of section 92E of the Labour Act, and, in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O. SC20-12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded in terms of section 92E(3) of the Labour Act, to apply to the Labour Court for a stay of execution pending appeal - which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E of the Labour Act.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As counsel for the applicant submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Labour Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against: see, for example, Nyasha v Dodhill SC28-09; Net One Cellular (Pvt) Ltd v NetOne Employees & Anor 2005 (1) ZLR 275 (S); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Labour Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant, and, a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second, and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court.”

2. Costs of this application shall be in the cause.”

Review re: Terminated or Complete Proceedings iro Approach, Review Jurisdiction, Powers, Grounds & Record of Proceedings


In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale....,.

Further, it was submitted, on behalf of the applicant, that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff....,.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

Jurisdiction re: Judicial Deference iro Assessment of Prospects on Appeal, Review or Main Proceedings


In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale....,.

Further, it was submitted, on behalf of the applicant, that the sheer magnitude of the arbitrator's award, the execution of which could cause the shutdown of the University, was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Chapter 7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University, as well as all its vehicles, have been attached and are awaiting removal for sale by the Deputy Sheriff....,.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable, it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

Before, ZIYAMBI JA:

In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.

The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct. The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement. Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308,000.

The respondents caused the order to be registered in the High Court and commenced the process of execution. The applicant's property was attached and scheduled for removal and sale.

Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found, firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order. Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted on behalf of the applicants that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court. In the circumstances only the High Court could entertain an application for stay of execution of the award. See Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents however argued that an appeal against an arbitrator's award is an appeal in terms of the Labour Act [Cap 28:01] (“the Act”) and is not suspended pending appeal. They referred me to Zimphosphate v Matora & Ors SC44/2005.

The decision in the Net One Cellular case (supra), they argued, was given prior to the introduction of section 92E of the Act and in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O SC 20/12 it was decided that it was within the Labour Court's powers to suspend the execution of an arbitral award. Accordingly, the applicant ought to have proceeded, in terms of section 92E(3) of the Act, to apply to the Labour Court for a stay of execution pending appeal which it failed to do.

It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of section 92E.

They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.

As Mr Mpofu submitted, there appears to be a divergence of legal authority on the question as to whether or not, on a proper consideration of section 92E and section 98(10) of the Act, it can be concluded that appeals on points of law from an arbitrator's decision in terms of section 98(10) would operate to suspend the execution of the judgment appealed against. See for example Nyasha v Dodhill SC28/09; Net One Cellular (supra); Tel One (Pvt) Ltd v Communication & Allied Services Workers' Union of Zimbabwe 2007 (2) ZLR 262 (H).

Divergent positions, he submitted, create uncertainty.

He submitted that once the order was registered as an order of the High Court, execution was suspended and leave of the High Court was required to execute the judgment pending the determination of the appeals. Accordingly, the execution against the applicant's property was unlawful, having been undertaken without leave of the High Court.

Although by the time of the hearing of this application, the appeals before the Labour Court had been dismissed, the applicant had applied for leave to appeal to the Supreme Court in terms of section 92F of the Act.

Further, it was submitted that the sheer magnitude of the arbitrator's award the execution of which could cause the shutdown of the University was prima facie evidence of unreasonableness and it was within the power of this Court to act in terms of section 25 of the Supreme Court Act [Cap7:13] and review the award of the arbitrator.

A warrant of execution had already been issued and the entire library of the University as well as all its vehicles have been attached and are awaiting removal for sale by the Deputy Sheriff.

The respondents, it was submitted, would not be prejudiced by the grant of the order sought and the balance of convenience favoured the applicant.

I granted the application at the end of the hearing because I was of the view that, the award having become an order of the High Court upon registration by that court, the court a quo misdirected itself in holding that it did not possess the jurisdiction to grant the order sought. It may be that a Bench of three Judges of the Supreme Court may come to a different conclusion but the very fact of a divergence of positions on this issue of law is what causes me to conclude that the applicant has established a prima facie right entitling it to the order sought.

The balance of convenience favours the applicant and a refusal to grant the order would have rendered the appeal academic.

As to the invitation to act in terms of section 25 of the Supreme Court Act, as well as the submission that the arbitrator's award is prima facie unreasonable it was my view that this was a matter best dealt with by the Court itself, and not by a single judge.

It was therefore ordered as follows:

“Pending the determination of the appeal filed under case reference SC360/12, the following interim relief is granted:-

1. The first, second and third respondents shall not do, allow to be done or cause to be done anything the effect of which is to commence or continue with the levying of execution of the judgment obtained under case No. HC2288/12, the stay of execution of which was refused under case no. HC12199/12 and which refusal is now the subject of appeal before this Court”.

2. Costs of this application shall be in the cause”.





Ziumbe & Partners, applicant's legal practitioners

Kadzere, Hungwe & Mandevere, respondents' legal practitioners

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