Sibangalizwe DhloDhlo v The Deputy Sheriff for Marondera and The Sheriff for Zimbabwe and Kantor & Immerman and Watershed College

HH 76-2011
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SIBANGALIZWE DHLODHLO
versus
THE DEPUTY SHERIFF FOR MARONDERA
and
THE SHERIFF FOR ZIMBABWE
and
KANTOR & IMMERMAN
and
WATERSHED COLLEGE


HIGH COURT OF ZIMBABWE
GOWORA J
HARARE, 21 September 2010 and 30 March 2011


Opposed Court Application


D Ochieng for the applicant
L Uriri for the 3rd and 4th respondents
No appearance for the 1st and 2nd respondents

       GOWORA J: This matter came before me as an urgent application. After having sight
of the opposing papers filed by the respondents I concluded that the matter was not urgent, and
by agreement of the parties it was enrolled on my roll of opposed matters as all parties had
filed all the necessary affidavits and heads of argument.
       The dispute arises out of the registration of an arbitral award by this court at the
instance of the applicant. Subsequent to the said registration, the applicant caused a writ of
execution to be issued by the Registrar of this Honourable Court. The writ was served by the
first respondent who attached a number of assets belonging to the fourth respondent. When the
first respondent attended at the fourth respondent’s premises to remove the attached goods the
third respondent, a firm of legal practitioners engaged by the fourth respondent, intervened and
allegedly advised the first respondent that the order of this court had been stayed by an order
of the Labour Court. Thereafter the legal practitioners for the applicant on the one hand, and
those representing the fourth respondent on the other, engaged in correspondence whose tone
and descended with each letter, culminating in each of them hurling insults, threats and
counter accusations. It is sad to record that insults were traded between the legal practitioners
of the applicant and the respondents.
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Needless to say, the first and second respondents were not spared from this barrage. I think it
is pertinent to remind legal practitioners that the second respondent and his deputies are
officers of this court. In the performance of their duties they are supposed to be impartial. If
there exists a dispute between parties, it would be foolhardy for the second respondent
especially to be seen to be taking the side of one party against another. If there is a court order
which has been granted staying execution, as happened in this case, the second respondent,
cannot be expected to conclude that the court order is irregular and should be disregarded.
That would lead to a breakdown in the rule of law as well as a complete disregard and
breakdown of the judicial system. For the applicant to suggest as he did, that the first and
second respondents, ought to have, upon his demand, overlooked the existence of the order of
the Labour Court and proceeded to levy execution in his favour ‘because the order was clearly
wrong’, is to my mind tantamount to encouraging any official to disregard orders of the courts
of this country. The respondents have no capacity to decide if an order is incompetent or
otherwise. That is the function of these courts. The first and second respondents, having been
threatened with criminal sanction, wisely in my view, decided to take no further action until a
court had decided whether one or the other was in the right from a legal perspective. They
have as a result been brought to court for an order for mandamus for the Sheriff and his
Deputy to perform their duties in terms of the law. I cannot fault the manner in which they
handled their task. The same cannot however be said of the legal practitioners for the
applicants and the fourth respondent.
    The starting point would, in my view, be the award that the applicant obtained from the
arbitrator which is the causa causans of the entire dispute. The applicant was employed by the
fourth respondent as a Director of the Agricultural unit at the school. On 6 March 2009 he was
dismissed following a finding that he was guilty of willful disobedience to a lawful order. He
filed an appeal to the Minister who referred the matter to an arbitrator for conciliation. The
arbitrator heard the parties on 12 May 2009 and 0n 30 June the arbitrator issued an award in
favour of the applicant. The arbitrator found that there had been unfair labour practice against
the applicant and gave the following award:
    i)     that the employee be paid salary arrears from 1 March 2009 to 30 June 2009 and
           gratuity with immediate effect;
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    ii)     that the employee be paid 3 months cash in lieu of notice, gratuity and any
            outstanding vacation leave days with immediate effect’
    iii)    that the employee be paid damages in lieu of reinstatement. Further that the parties
            negotiate the quantum of damages payable, if they fail to agree they should refer
            the matter back to arbitration.
    The parties did not agree on the amounts to be paid and, as a result, on 7 June 2010 the
applicant referred the dispute to the arbitrator for an assessment of the monies due and owing
as damages in lieu of reinstatement. The arbitrator on 7 June 2010 awarded the applicant US
$60 000 as damages in lieu of reinstatement. Armed with this award the applicant then filed a
chamber application with this court for the registration of the award. In the draft order attached
to the application he sought registration of the awards granted to him on 16 July 2009 and 7
June 2010 respectively. The learned judge before whom the application was placed, pointed
out correctly, in my view, that the first mentioned award did not sound in money. To comply
with this query the applicant then submitted two annexures, one of which was a payslip and
the other a document which purportedly set out all the sums as salary and allowances claimed
from February 2009 to June 2009. These amounts totalled US $ 29 367.00 were accordingly
claimed on the amended draft order filed by the applicant. There was, however, no indication
on the papers that these amounts had been awarded by the arbitrator. On 21 June this court
gave an order in favour of the applicant in which the arbitral award of June 2010 was
registered together with an amount of US $ 29 367 which clearly was not part of the award by
the arbitrator.
    When the parties appeared before me I raised a query with the applicant’s counsel as to the
entitlement by the applicant to have this aspect of the award registered with this court.
Counsel, who had not been instructed on the circumstances surrounding the registration of the
award was unable to confirm that it was based on an award by the arbitrator. I indicated to the
parties that in my view the award had been registered in error and that it was my intention to
invoke r 449 of the Rules of the High Court and rescind that part of the order. Accordingly, the
order of this court dated 21 June 2010 relating to an award by Mpisaunga dated 16 July 2009
for the sum of US $ 29 3667 is hereby rescinded.
    I turn now to the dispute between the parties. The applicant seeks an order that the process
of execution be proceeded with by the first and second respondents. He also seeks an order
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barring the fourth respondent from interfering with the first and second respondents in the
execution of their duties. In the final relief the applicant also sought an order to the effect that r
34 (1) of the Labour Court Rules 2006 S.I. 59/06 is ultra vires the Labour Act [Cap 28:01].
        Subsequent to his having an order issued in his favour the applicant caused, on 23 June
2010, a writ of execution to be issued by the Registrar of this honourable court. It is common
cause that on 28 June the first respondent attended at the premises of the fourth respondent
armed with the writ and attached two buses and a tractor. Removal was scheduled for 1 July
2010. He did not do so due to a letter dated 30 June 2010 from Messers Kantor & Immerman
which advised the first respondent that a stay of execution had been granted in favour of the
fourth respondent by the Labour Court and that therefore the respondent ought not to proceed
further with the process. A copy of the order which was attached to the letter reveals that the
order staying execution was granted in chambers by Kachambwa President on 30 June 2010.
The president had granted a stay on the execution of the judgment relating to the damages in
lieu of reinstatement but had allowed execution on the part of the award which was not the
subject matter of an appeal. It transpired that the fourth respondent had not appealed against
the award of 16 July 2009 but had appealed the award issued on 7 June 2010. The applicant
had apparently not been served with the notice of appeal. The applicant and his legal
practitioners were not convinced that the Labour Court could order stay of execution on an
order emanating from this court and accordingly on 14 July the latter addressed a letter to the
first respondent urging him to proceed with execution. The first respondent complied and
served a fresh notice of removal on 16 July 2010. Removal was this time scheduled for 21 July
2010. He was unsuccessful as he was met with resistance. In the meantime the fourth
respondent’s legal practitioners had addressed a letter to the first respondent which they copied
to the applicant’s legal practitioners on 19 July in which they intimated that the writ of
execution was no more legally enforceable and warning the first respondent that he risked
being charged with a criminal offence if he persisted with execution. A further letter on the
issue was written to the applicant’s legal practitioners on 22 July 2010, in which it was stated
amongst other things that any instructions to the first respondent to proceed with execution
would be unlawful because the writ had been suspended by the Labour Court. In view of the
turn of events the second respondent advised the first respondent to suspend execution pending
the determination of the application filed by the application in the Labour Court for rescission
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of the order for stay of execution. The applicant sought an explanation from the second
respondent who reiterated that his office would not proceed with the process of execution until
the rescission would have been determined hence the application before me as the applicant is
of the view that until such time as the order of this court has been set aside the writ is valid.
       The execution of judgments of the High Court is provided for in Order 40 of the rules.
Rule 324 thereof provides that a writ of execution, once issued remains in force until such time
as the judgment has been satisfied. Rule 323 provides that one or more writs may be sued out
by any person in whose favour a judgment has been pronounced if such judgment has not been
satisfied, stayed or suspended. The contention of the first and second respondents is that the
writ cannot be enforced because it has been suspended by the Labour Court.
       The order by the Labour Court staying execution of the order of the 21 June 2010 was
effected in terms of r 34 910 of the Labour Court Rules which is to the following effect:
       “Where a decision, order or determination has been registered in terms of section 92B
       (3) of the Act, the Court or a President sitting in chambers may, upon application, order
       a stay of execution of the decision, order or determination.”

       The issue which then arises is whether this was a decision, order or determination
registered according to the provisions of s 92B. Section 92B (1) provides that the Labour
Court may fix the date from which any decision, order or determination made by it may
operate. Subrule (2) requires the court or the president who made the decision to submit
sufficient copies of the order or decision to the registrar who in turn will provide a copy to
each of the parties affected by the order or decision. Section 92B (3) in turn permits the
registration of the order or decision with magistrates court or the high court, depending on the
jurisdictional limit of the lower court. Clearly an award from an arbitrator cannot be registered
under s 98B. A closer scrutiny of the Act actually reveals that the appropriate section for the
registration of such awards is s 98 (14), which is to all intents and purposes a mirror of s 92B
(3) except that there is reference to an arbitrator and an arbitral award as opposed to the
Labour Court and a decision, order or determination.
In my view, the Labour Court provided for the suspension of orders or decisions registered
under s 92B (3) only. The judgments registered under s 98 (14) have been excluded. Any
suspension of any award granted under s 98 would therefore be ultra vires the rules themselves
as they have not provided for such suspension.
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       The matter however does not end there. The applicant has contended that irrespective
of what the Labour Court Rules may provide that court does not have the jurisdiction or power
to suspend or stay execution of an order or judgment of this Honourable court. In terms of s
92B (4) of the Act, once a judgment or order has been registered with the High Court it shall
have the effect, for purposes of enforcement, of a civil judgment of the appropriate court. The
same provision is found in s 98 (15) of the same Act. Effectively therefore, once this court
issued an order registering the award in favour of the applicant, upon the registration the award
became to all intents and purposes a judgment of the High Court. The contention by the
applicant is that as a result of the registration the Labour Court ceases to have jurisdiction over
the judgment and it cannot control, vary, set aside or rescind the judgment. I think this is a
correct exposition of the law. The effect of the registration with this court is that only the High
Court, barring an appeal to the Supreme Court, can interfere with the judgment or its
execution. This is because, the High Court, being a court of superior jurisdiction has the
inherent power to regulate its own proceedings, as remarked by GILLESPIE J in S v
Chakwinya 1997 (1) ZLR 109 (H) as follows:

       “……and the remedy for the accused here lies in the inherent jurisdiction of this court
       to regulate its own proceedings and to protect the rights of those coming before it.”

       Clearly the import behind r 34 (1) is to permit the stay any judgment registered with a
court, possibility with inferior jurisdiction to it. I say possibly because this aspect was not
argued before me as that was not the situation confronting the parties. I am therefore not in a
position to state with certainty that the rule permits this. It is an issue that would have to be
argued before a court can pronounce on it. What I can state is that the rule cannot be read as
giving the Labour Court the power to regulate proceedings of the High Court. To the extent
that it appears to do so, the rule in my view is in conflict with the Act and the limited
jurisdiction granted to the Court in terms of s 89 thereof. I am bolstered in this view by the
comments of SANSOLE J in Chibaya v Chibaya 1985 (2) ZLR 237 at 238 where he quoted
from remarks by ROPER J in R v de Jager 1953 (2) SA 197 remarks to the following effect:

       “The ordinary rule of law is that an order made by a court can (except by way of appeal
       or review in a higher court) not be varied except by the court itself;……..”
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           It is trite that a judicial officer cannot vary or set aside a judgment or order issued by an
officer of parallel jurisdiction, except in the case of a rescission of an order granted in default,
or in restricted circumstances in accordance with the provisions of r 449 of the rules of this
court. As the applicant rightly argues if a judge cannot vary or alter aside an order issued by a
judge with parallel jurisdiction,1 how can it be possible for a judge from a lower court have the
power to stay an order issued by a court of superior jurisdiction. I cannot conceive of a
situation where a court can lawfully interfere with execution or suspension of a court order
issued by court of superior jurisdiction to its own.
           Execution is a process of the court and every court has the power to control its own
process subject to the rules of court. In the High Court that power is inherent. See Strime v
Strime 1983 (4) SA 850; and Stumbles & Rowe v Mattinson 1989 (1) ZLR 172. The courts in
this country have all been imbued with the power to regulate their own proceedings and
therefore no other court can legally interfere with those proceedings unless in an appeal or a
review of the proceedings of that other which in any case would have to be a court of inferior
jurisdiction. In casu, the Labour Court is not such a court as can review or subject to appeal
the proceedings of the High and it ought not to have stayed the judgment of this court as that is
not within its jurisdictional power.
I have been enjoined in this vein to find by the applicant that r 34 (1) of the Labour Court Rule
is ultra vires the provisions of s 92B. The award which is the subject matter of this dispute
falls for registration in terms of s 98 of the Act and therefore. This rule does not make
reference to awards registered in terms of that section and any remarks by this court relating to
s 92B would be obiter. I will therefore not venture into that territory, as I believe that the law is
clearly against the Labour Court staying the execution of an order of this court, even where it
has been granted through the registration process of an order, award, decision or judgment
emanating from that court or bodies under its umbrella. Thus the order staying execution of the
judgment of this court of 21 January 2010 does not bind this court and the stay is of no force
and effect. The writ issued in consequence of that order is therefore valid and capable of
execution by the first respondent or the second respondent.
           It is clear that as a result of the provisions of r 34 (1) a lot of confusion has been
evident between the litigants as to which court, between this court and the Labour Court

1
    See Parker v Parker 1985 (2) ZLR 79 at 85A.
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should be approached for relief when considering a stay of execution. The import behind s
92B (3) and (4) as well as 98 (13) and (14) is to provide successful litigants under the Act an
avenue for the due execution of any orders or awards rendered in their favour. The purpose
was not to make this court or the magistrates court the owner of those orders. However, in
order for the orders to be given legal effect for purposes of execution the relevant sections
provide that upon registration the order or award becomes an order of the court in which the
registration has been effected. The legal consequences of the registration are manifold. Firstly,
if there is need for a stay, in so far as the High Court is concerned, only this court can order a
stay of the order. I was not addressed on the issue of an award registered in the Magistrates
Court and in the absence of argument I am unable to render an opinion. Secondly, once the
order is registered only the High Court can entertain an application for rescission or variation.
The High Court does not have the jurisdiction to deal with labour matters that being within the
exclusive jurisdiction of the Labour Court and structures set up under the Act. In the event that
the initial order, judgment or award has to be reviewed, rescinded, varied or interfered with
any manner, this court plays no part. It cannot determine anything to do with labour on the
merits. The absurd situation is therefore created where this court has registered an order which
becomes its own but if either party wishes it rescinded this court cannot consider the merits of
the application as it has no jurisdiction to determine labour issues. In the event, the parties
have to utilise the structures set up under the Act to regularise or deal with the dispute and
once that is finalised they approach the High Court to set aside its judgment which came by
way of registration. I believe that the burden on the litigant, in the existence of the need to
have a multiplicity of actions is not just unduly burdensome, it can be costly. Invariably the
employee is not legally represented and the minefield presented by the need to jump from one
court to another for redress may lead to an injustice. I would venture to suggest that the Labour
Court be provided with the services of the Sheriff for purposes of effecting execution of its
own judgments and this would instantly remove the confusion prevailing from the
interpretation of r 34 (1) of the Labour Court rules. Already the deputy sheriff and the
messenger of court are empowered to serve process of that court and it would be a simple
thing to extend those powers to execution of judgments rendered by the court.
       I turn then to the substance of the application, as to whether or not I should issue an
order in favour of the applicant directing the first and second respondents to abide by their
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statutory duties and remove the attached assets and sell them in execution of the judgment of
this court. The powers and duties of the Sheriff are provided for in s 20 (1) of the High Court
Act to the following effect:

         “Subject to section nineteen and to rules of court, the Sheriff shall by himself or his
         deputy or an assistant deputy, execute all sentences, decrees, judgments, writs,
         summonses, rules, orders, warrants, commands and other processes of the High Court,
         and shall make a return thereof to that court, together with the manner of execution
         thereof.”

         That there is a statutory obligation falling upon the shoulders of the Sheriff and his
lawful deputy, in this case the first and second respondents is not in dispute. Both are officers
of this court and are bound by the High Court Act. The question to be determined here is
whether or not the applicant has made out a case requiring this court to order that the first
respondent execute his mandate in terms of the writ. The applicant has addressed this court at
length on the validity of the writ. I do not believe that is the issue before me. The writ is valid
until such time as the judgment of this court has been set aside. The judgment has not.
However, each of the parties has noted an appeal against the assessment of damages by the
arbitrator in the sum of US $60 000.00.
         It is trite that a litigant who is dissatisfied with a judgment or decision may appeal
against that judgment or decision. Appeals under the Labour Act are governed by that Act.
Section 92D provides:

         “A person who is aggrieved by a determination made under an employment code, may,
         within such time and in such manner as may be prescribed, appeal to the Labour
         Court”

         The effect of noting an appeal under this section is described in S92E in the following
terms:
 “(1) An appeal in terms of this Act may address the merits of the determination or decision
      appealed against.

   (2) An appeal in terms of subsection (1) shall not have the effect of suspending the
      determination or decision appealed against.

   (3) Pending the determination of an appeal the Labour Court may make such interim
       determination in the matter as the justice of the case requires.”
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      In terms of subsection (2) the Legislature has finally put to rest the confusion in the law as
to whether or not an appeal under the Act would suspend the operation of the decision or
determination appealed against. The arbitral award was however granted in terms of s 98(9) of
the Act. An appeal against the decision of the arbitrator on a question of law lies to the Labour
Court in accordance with the provisions of s 98 (10) of the Act. Where s 92E provides that the
noting of an appeal does not suspend the decision or determination, there is no such provision
in relation to an appeal against an award by an arbitrator. In PTC v Mahachi 1997 (2) ZLR 71
(H) CHATIKOBO J stated:2

      “I am concerned with proceedings conducted in the public law domain under the
      provisions of the Act. In this domain the common law presumption against the operation of
      judgments which have been appealed against applies unless the Act provides to the
      contrary. In this case, the Act is silent on the issue. But does this silence mean that
      Parliament intended to alter the common law position? In Phiri & Ors v Industrial Steel &
      Pipe (Pvt) Ltd S-242-95 (Not reported) KORSAH JA said:

      ‘There is a presumption, in the interpretation of statutes, that Parliament does not intend to
      change the common law, unless it expresses its intention with irresistible clearness, or, it
      follows by necessary implication from the language of the statute in question, that it
      intended to effect such alteration in the common law; for ‘construing the statute by adding
      to it words which are neither found therein nor for which authority could be found in the
      language of the statute itself, is to sin against one of the most familiar rules of
      construction…..’

per Lord Halsbury LC in Bank of England v Vagliani [1891] AC 107 at 120

              I am of the opinion that, in the absence of a clear indication by the law giver to the
              contrary, the common law position that the execution of all judgments is suspended
              upon the noting of an appeal, is not ousted by the silence of the statutory instrument, in
              terms of which the respondent’s appeal to the Tribunal was lodged upon the effect of
              such appeal against the order made by the Minister.’ ”.

              I will consider and accept as CHATIKOBO J did before me in the Mahachi case
(supra) that the proceedings against which the appeal was noted were conducted in the public
domain law under the aegis of the Act. As such, in the public domain law, the common law
presumption against the operation of judgments which have been appealed against operates

2
    At p 75
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unless the Act has provided to the contrary viz s 92E (2). I am fortified in this view by
comments made by GREENLAND J in Mushaishi v Lifeline Syndicate & Anor 1990 (1) ZLR
284 (H) at 287D to the following effect:

       “To my mind, it would be anomalous if an administrative decision of a quasi-judicial
       nature, as is the case here, were to be put on a different footing from court judgments
       and orders. In the absence of anything provided to the contrary in the relevant Act such
       decisions must be treated as suspended pending appeal.”

       The sum total of the comments from the eminent jurists that I have quoted from leaves
me with no other conclusion than that the arbitral award having been appealed against is not
capable of being executed against. To hold otherwise would be to fly in the face of age old
established common law principles, let alone logic. For a litigant to note an appeal against
judgment granted in his favour and thereafter to seek to execute against the same judgment
with which he has clearly expressed unhappiness is to say the least, an abuse of court process.
In any event, the fourth respondent has noted an appeal against the award of damages by the
arbitrator. The Labour Court is a creature of statute and is regulated strictly within the four
corners of the statute which created it. The Act that created it has not seen fit to interfere with
the common law position which provides that an appeal against a judgment suspends the same.
It stands suspended and the applicant has not convinced me otherwise.
       In the premises I find that the application has no merit and it should be dismissed with
an appropriate order for costs I therefore make an order as follows:
       IT IS HEREBY ORDERED AS FOLLOWS:
       1) The order of this court dated 21 st June be and is hereby varied by the rescission of
           the order for the sum of $29 367 registered in favour of the applicant as having
           been registered in error.
       2) The application for an order of mandamus against the first and second respondent
           be and is hereby dismissed.
       3) The applicant is ordered to pay the costs of this application.
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Sakala & Company, applicant’s legal practitioners
Kantor & Immerman, respondent’s legal practitioners