This is a Chamber application in which the applicant seeks
the relief set out in the draft order. The draft order reads as follows:
“IT IS ORDERED
THAT
1. The urgent Chamber application for leave to appeal to
the Supreme Court be and is hereby granted.
2. The second respondent be and is hereby interdicted from
selling in execution the applicant's movable goods in pursuit of the writ of
execution issued by the High Court in Case No. HC8712/13.
3. There shall be no order as to costs if the respondent
does not oppose this application. In the event that it does, the respondent be
and is hereby ordered to pay costs of the application.”
The facts of the matter are briefly as follows.
The first respondent (hereinafter referred to as “Kabasa”)
was an employee of the applicant. The
applicant discharged Kabasa. Kabasa disputed the lawfulness of the discharge.
The matter was referred to arbitration for determination. On 11 September
2012, the applicant was ordered, by the arbitrator, to reinstate Kabasa or pay
him damages. On 25 September 2012, the applicant appealed to the
Labour Court. On 8 May 2013, the applicant applied to the
Labour Court for an order staying the enforcement of the award pending a
hearing of the appeal. The application was set down for hearing on
21 November 2013. The hearing of the application was postponed at the
request of Kabasa. Kabasa took the opportunity created by the postponement to
register the arbitration award with the High Court and cause the
attachment of the applicant's goods. Faced with the danger of losing its goods
through execution, the applicant made an urgent application for an interdict to
stay execution pending the determination of the applicant's appeal to the
Labour Court.
At the hearing, Kabasa contended that he had since
registered the award with the High Court. He argued that the award was now an
order of the High Court which, it was submitted, could not be stayed by
the Labour Court. This submission found favour with the Labour Court
and the application for interim relief was dismissed. The Labour Court
concluded that it had no jurisdiction to entertain the application for interim
relief as the award had become a High Court order through registration.
The applicant sought leave from the Honourable Judge of the Labour Court
to appeal against that determination.
The application for leave to appeal was refused. The
applicant now seeks leave of a Judge of the Supreme Court for leave to
appeal to the Supreme Court and also for the interim relief set out in the
draft order.
The issue of the respective jurisdiction of the
Labour Court and the High Court in regard to awards by arbitrators
pending the hearing of appeals by the Labour Court is an issue that has been
considered on a number of occasions in the High Court.
It has emerged that there are two schools of thought
regarding this issue.
The one school of thought is that the Labour Court has
jurisdiction to adjudicate on the issue of interim relief pending the
determination of an appeal by the Labour Court despite the registration of an
award with the High Court, while the other holds it does not have such
jurisdiction.
The learned judge of the Labour Court was alive to the
divergence of views of the High Court. In this regard, this is what she had to
say…,:
“The facts of the case raise the fundamental problem facing
labour matters where there is an element of parallel jurisdiction between the
High Court and the Labour Court.
The applicant relied heavily on the case of Benson
Samudzimu v Dairiboard Holdings HC/H/204/10 to demonstrate the fact that, even
though the arbitral award has become a High Court order by virtue of its
registration, the fact that the main case is a labour matter…, means that the
Labour Court's jurisdiction has not been ousted in favour of the High Court.
It even went on to argue that if the court were to refuse
relief on the basis of jurisdiction, in this case, it means that it would also
follow that the court could also not legitimately entertain the appeal in such
circumstances as it would be argued that the order was now a High Court order.
The applicant, therefore, maintained that, since the High
Court, on registering the award, did not deal with the merits of the award, the
Labour Court still remained at large to deal with the interim relief
application and the attendant appeal in the main.
Whilst the respondent did not cite authority on the ouster
of the Labour Court's jurisdiction based on the registration argument, it is
pertinent to observe that, to date, there are two High Court decisions with
conflicting views as to whether the Labour Court can effectively grant an order
for stay in a case where the applicant has also applied for registration of the
award at the High Court. See Sibangilizwe Dhlodhlo v Deputy Sheriff, Marondera
and Watershed College HC/H/76/11 and Kingdom Bank Workers Committee v Kingdom
Bank Holdings HC/H/302/11.
What is apparent from both cases, and from what counsel for
both parties agreed, upon is the fact that it is settled law that the Labour
Court has no powers to stay an order made by the High Court. However, what
remains murky/unclear is whether, by the same token, it can be said that, since
the arbitral award has now been 'transformed' into a High Court order,
therefore anything else attendant to it, like appeals against it, cannot be
entertained by the Labour Court on a jurisdictional basis.
Whilst the Samudzimu case supra makes it clear that
jurisdiction in relation to the other components of the award, like the appeal
component, remains solely a labour issue to be determined by the Labour Court,
it remains questionable whether the same can be said in relation to interim
relief.”
It would appear to me that this is an issue which is
awaiting final determination by the Supreme Court in due course.
Given the uncertainty of the law pending the determination
by the Supreme Court, I am satisfied that the learned Judge of the
Labour Court misdirected herself in refusing the applicant leave to appeal
to the Supreme Court….,.
The leave to appeal has to be granted on the basis that the
Supreme Court is yet to speak and until that happens it cannot be said that the
applicant's case has no prospects of success.
Accordingly, I grant the applicant leave to appeal to the
Supreme Court….,.
As I have already stated, the issue of whether or not the
Labour Court has jurisdiction to grant interim relief in respect of
arbitral awards registered with the High Court but pending before the
Labour Court is an issue to be determined by the Supreme Court.
However, the applicant also seeks the relief of a stay of
execution pending the determination of the Supreme Court.
I am satisfied that in the event of the Supreme Court
deciding in favour of the applicant's contention, then the applicant will have
a real right and its entitlement to interim relief inevitable. As of now, all the applicant has is a prima facie
right. On the papers as they stand, I am also satisfied that if the
Supreme Court decides in favour of the applicant and payment of US$40,000=
has been made by the applicant to Kabasa, the prospects of Kabasa being able to
pay back the money are next to non-existent.
Consequently, the applicant would suffer irreparable loss. On the basis
of the above, I am satisfied that the applicant is entitled to interim relief
pending the determination of this matter by the Supreme Court.
In the result, the application is hereby granted
and an order in terms of the draft order granted.
