Amtec Motors v Luke Chivasa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/736/13
HELD IN GWERU, 15 NOVEMBER, 2013 &
CASE NO. LC/364/13
31st JANUARY, 2014
JUDGEMENT NO. LC/H/736/13
---------




IN THE LABOUR COURT OF ZIMBABWE 	         JUDGEMENT NO. LC/H/736/13

HELD IN GWERU, 15 NOVEMBER, 2013 &	           CASE NO. LC/364/13

31st JANUARY, 2014

In the Matter Between

AMTEC MOTORS					Appellant

And

LUKE CHIVASA					Respondent

Before The Honourable E. Makamure:	Judge

For Appellant	:	Mr A.K. Maguchu (Legal Practitioner)

For Respondent:  	Mr F.A. Kalubi (ZFTU Regional Co-ordinator)

MAKAMURE E.,

This is an appeal against the decision of an Arbitratorsitting at Harare.Before the appeal could be argued respondent raised a point in liminethat the appellant has approached this court with dirty hands. The respondent submitted that the appellant approached this court before complying with the decision of the Arbitrator. It is trite that in terms of Section 92 E (2) of the Labour Act [Cap 28:01] (The Act) an appeal does not suspend the operation of the decision appealed against. Further Section 92 E(3) of the Act provides a party with a chance to apply for the suspension of the operation of arbitral award in the form of an interim relief.

Counsel who appeared on behalf of the appellant submitted that the reason why the award has not been complied with is because of divergent views from the High Court regarding this matter.

It is correct that there are divergent views on this issue mainly emanating from the High Court. While this may be so, the decisions of the High Court are persuasive and are not binding on Labour Court. The High Court in the matter of Sibangaliswe Dhlodhlovs. The Deputy Sheriff for Marondera & Two Others HH 76/2011, GOWORA J. (as she then was) held that an appeal against the decision of an Arbitrator suspends the application of that decision. However the High Court in a later decision, namely KingdomBank Workers Committeevs.Kingdom Bank Financial Holdings HH 302-2011 (Kingdom) PATEL J. (as he then was) held that an appeal against a decision of an Arbitrator does not suspend the operation of an award being appealed against. This later High Court decision is consistent with the provisions of Section 92E (2) of The Act. It is clear that the Act changed the common law position. I therefore find the Kingdom decision persuasive.

Section 92E (2) of The Act does not thereafter specifically provide that since an appeal does not suspend the operation of the award,a party must apply for the stay of execution of such award. The legislature provided, albeit in a separate Section 92E (3), for the application for interim relief. The intention of the legislature in my view is to ensure that a party who is serious in prosecuting an appeal, will ensure that the operation of the award in question will be stayed. This will avoid any confusion regarding as to what happens to the award while the appeal is being determined. The Labour Court Rules, 2006, Statutory Instrument 59 of 2006 in Rule 34 then provide for stay of execution. Admittedly both The Act and the Rules need “tidying up” in order for procedures to be clear to parties.

It must be borne in mind that labour law is still in its nascent years in this country. It is therefore incumbent upon parties to interpret the provisions ofThe Act in a manner that best leads to finality of litigation.  Parties serious with litigation should apply for stay of execution. Failure to have the award suspended may lead the matter to go on for ever with the party who is not seriously prejudiced taking their time to prosecute the appeal. This is undesirable.In view of this I would therefore have found merit in the point raised. However, on 2nd October 2013 this court dismissed an application for default judgment of this matter which had been filed by the respondent. By then the appellant had already failed to comply with the arbitral award being appealed against. I am sure that by then it was clear to the respondent that the appellant had not complied with the award. That is when the respondent ought to have raised the point in limine.

Today the respondent has brought yet another interlocutory matter (i.e. the point in limine). Surely this is not be in the interests of finality to the matter. The respondent cannot be allowed to continue bringing in applications with no end in sight. There must finality to litigation (see Ndebele v Ncube 1992 (2) ZLR 288 (S).

For the above reasons the point in limine raised is discharged. The matter should be heard on the merits.

Accordingly it is ordered that the point in limine be and is hereby dismissed.

Messrs Dube, Manikai & Hwacha – for the appellant

Z.F.T.U. – for the respondent