Chegutu Municipality v Tapera Table

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/69/2016
HARARE, 16 JULY 2015 &
19 FEBRUARY 2016
CASE NO LC/H/APP/306/2015
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IN THE LABOUR COURT OF ZIMBABWE 	     JUDGMENT NO LC/H/69/2016

HARARE, 16 JULY 2015 &			      CASE NO LC/H/APP/306/2015

19 FEBRUARY 2016

In the matter between

CHEGUTU MUNICIPALTY					APPLICANT

Versus

TAPERA TABLE							RESPONDENT

Before the Honourable L F Kudya J

For the Applicant	  R Wenyeve  (Legal Practitioner)

For the Respondent    P Makuwaza (Legal Practitioner)

KUDYA J:

This is an application for leave to appeal to the Supreme Court at the instance of the applicant employer in a matter where its application for condonation of late noting of an appeal to the Labour Court was struck off the roll on account of the dirty hands principle. The principle had been raised by the respondent employee as a point in limine after realising that the applicant had not complied with the arbitral award or at least sought stay pending appeal.

The background to the matter is that the respondent employee got an arbitral award in his favour where he was supposed to be reinstated by the applicant employer or to be paid damages in place of reinstatement. Aggrieved by the arbitral award the applicant employer sought to appeal to the labour court against the arbitral decision. Unfortunately by the time it decided to do so it realised that it was out of time.

This prompted it to make an application for condonation of the late noting of an appeal. On the date of the hearing of the condonation application the respondent employee raise a point in limine that the employer was coming to court with dirty hands as it had not complied with the arbitral award or at least applied for stay of the same. This court upheld the point and struck the application for condonation off the roll.

Unhappy with the striking off order the applicant employer decided to appeal to the Supreme Court against the striking off order. Such a desire to appeal gave birth to the instant application where the employer is seeking leave to appeal.

The basis for the instant application is that the court was wrong to find that the employer was approaching it with dirty hands yet the arbitral award had not been registered and quantified. In its view until registration and quantification the award remained inchoate and thus not subject to be enforced or suspended pending appeal.

It also maintained that the Supreme Court has not made a definitive decision as to which stage an arbitral award should attract the dirty hands argument especially where the award in question has not been registered. In the ultimate the applicant claimed that it had a good case on appeal and had to be granted the leave which it was seeking.

The respondent maintained in opposition of the leave the fact that the application was not merited. In his view it was a calculated abuse of court process as there is no legal requirement that an arbitral award has to be registered before it can be enforced or stayed .He argued that the striking off order was made with sufficient clarity and reasoning to the extent that there was no merit in the appeal intended to be made to the Supreme Court by the applicant employer. In the result the respondent prayed that the application for leave to appeal be dismissed.

At the hearing of the leave application the respondent raised a point that applicant lawyers were improperly before the court since he was in possession of a copy of a resolution by the employer that he be reinstated and that agency of the applicant lawyers be renounced.

He prayed that the court deny them audience on the basis that they did not have a mandate from applicant to mount the application for leave to appeal to the Supreme Court. The matter was adjourned and the parties had occasion to discuss the point raised. The discussions gave birth to an agreement that the point be dropped and that the parties proceed to address the court on the merits of the leave to appeal application. To that end this judgment does not address that point as it was resolved by consent between the parties. This judgment therefore primarily addresses the merits of the leave application.

The test for such applications is set out in the cases of Dombodzvuku v CMED  SC-31-12 and Chikurunhe v Z B H SC-10-08.The applicant has to demonstrate that there indeed a point of law calling out for the Supreme Court’s decision. It also has to demonstrate that it has a reasonably arguable case on appeal. It is the cumulative effect of these two tests which can persuade the court to grant the leave that is prayed for.

Point of law

The applicant maintained that the Supreme Court has not yet ruled definitively on whether the dirty hand principle can be invoked where the case involves an unregistered award. In the applicant’s view such is an incomplete award hence it is not imperative that an order for stay pending appeal be obtained or that same be enforced pending appeal.

It went on to argue that, since the order granted by the arbitrator in the instant case had the alternative for damages, unless and until that component was quantified and registered to become an order of the court its considered view was that there was no obligation on it to comply with same or to ask for stay.

The applicant relied on the case of Kabubi v Zimrock International HH- 321-12 as well as the case of Kanengoni v Zimbabwe Spinner & Weaves Private Limited 1995(2) ZLR 384 (S) at 352. It argued that the dirty hands principle was crafted after the Kanengoni (supra) decision hence the court should not be persuaded to deny leave on that basis.

On the other hand the respondent maintained that there is no point of law in the case which the Supreme Court can be called upon to decide. He stated that the since the Kabubi decision contradicted the Supreme Court decision in the Kanengoni case  to the extent of that inconsistency the Kanengoni decision had to prevail .

The court is persuaded by the respondent’s reasoning that it would make a mockery of the dirty hands principle if it were to only apply to registered and quantified awards. It is clear that the intention of the Legislature by crafting stay relief it envisaged situations where for one reason or another, a party may wish to pursue his appeal interest without first complying with the award.

It is those scenarios that called for such a provision. It is therefore clear that there is no point of law which the applicant can argue that it has not been set out with sufficient clarity by the Supreme Court calling for intervention. The court is satisfied that the applicant has not met the first test for leave to appeal.

Merits of the appeal

A reading of the submission made by the parties in this matter speak to the fact that the applicant is convinced that the court misdirected itself to  allow the point in limine yet in their view the appeal on the main merits has prospects.

It need be stated that what is at stake in this leave application is not the main appeal intended to be filed by the applicant but rather the merits of the upholding of the point in limine. The record has detailed reasons why the point was upheld and it is not this court’s intention to repeat the same as it is apparent on the face of the record.

The court is persuaded that no good case for leave has been made out based on the 2nd rung of the test for such leave. In the ultimate it is apparent that the application having failed to meet the twofold test for leave it is without merit and it should be dismissed.

IT IS ORDERED THAT

The application for leave to appeal to the Supreme Court being without merit it be and is hereby dismissed.

Each party to bear own costs.

Warara & Associates, applicant’s legal practitioners

Makuwaza & Magogo, respondent’s legal practitioners