Fidelity Life Assurance of Zimbabwe v Kennedy Makumbe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/710/2013
HARARE ON 19th NOVEMBER, 2013
CASE NO. LC/H/903/13
AND 17 TH
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/710/2013

HARARE ON 19th NOVEMBER, 2013			        CASE NO. LC/H/903/13

AND 17TH JANUARY 2014

In the matter between

FIDELITY LIFE ASSURANCE OF ZIMBABWE     			–	Applicant

And

KENNEDY MAKUMBE 						–	Respondent

Before The Honourable R. Manyangadze, J.

For Applicant :	Mr R. Mutasa (Legal Practitioner)

For Respondent:	Ms R. Matindindi (Legal Practitioner)

MANYANGADZE, J.

This is an urgent chamber application for what Applicant termed Interim Relief and Urgent Hearing. This follows an arbitral determination dating back to 21 February 2007, which awarded the Respondent reinstatement and back pay and benefits totaling ZWD$22 352 000.00. This was followed by another award dated 17 September 2013 which ordered that the amount involved be converted to US dollars using the exchange rate of the Reserve Bank of Zimbabwe prevailing at the date of the award i.e. 22 February 2007. It was also ordered that Applicant pays Respondent US16 000.00 as damages in lieu of reinstatement.

Based on the 17 September 2013 award, Respondent worked out an amount of US$89 408.00 due to him as back pay and benefits. Altogether, the amount due and payable to Respondent from the Applicant in terms of this award is US$ 101 000.00 after taking into account some deductions shown on the papers filed of record.

The Respondent proceeded to file an application for registration  of this award in the High Court. The application was filed on 7 November 2013, under HC case no. 9452/13.

The court does not consider it necessary, for purposes of this application, to delve into the history of the labour dispute between the parties. Suffice it to say that Applicant lodged an appeal against the arbitral award, and is seeking what is captioned in its application as Interim Relief and Urgent Hearing. In essence this is an application for stay of execution of the arbitral award, which stay is being sought on an urgent basis.

From a reading of the Applicant’s papers the basis for the relief it is urgently seeking is that the Respondent has filed a Chamber Application with the High Court for registration of the contested arbitral award.

The Applicant fears that there is a risk of irreparable harm, in that the Respondent is a former employee who is presently unemployed. If Respondent goes ahead with execution of the arbitral award after having it registered with the High Court, he is unlikely to restore to the Applicant the amount awarded should the latter succeed in its appeal.

This, it seems to me, is the main, if not the sole, basis of this urgent chamber application. Thus the urgency is predicated on the possibility of irredeemable prejudice occurring.

As already indicated, the amount at stake is US$101 000.00. In my view, even the most saintly of characters will find it extremely difficult not to use such an amount once it falls into his coffers. It is most unlikely he will hold onto it in case the other party wins the appeal. After all it is money he will be entitled to, awarded as it would have been in terms of a court order. The worst that could befall him is to be sued by the Applicant if it successfully prosecutes its appeal.

I think there is a basis for regarding the application as urgent. The issue turns on the aspect of prejudice. For the Respondent, the likely prejudice is a delay in execution, and not a denial of execution. If the appeal is dismissed he can proceed to execute. If the appeal is allowed and he has executed, he most certainly will be unable to restore the status quo ante.

In the circumstances, I hold that the matter is urgent. Initially, I was inclined to grant the parties a short postponement for argument on the other aspects of the application, notably whether the Applicant has demonstrated it has a prima facie right to such relief i.e. whether it has shown it has prospects of success in the appeal.

However, having regard to the fact that the basis for determining urgency is in fact, one of the decisive criteria on whether or not relief should be granted, I found it unnecessary to defer the proceedings.

If it is has been established that in the event of the Applicant being successful on appeal Respondent will not be able to restore the status quo ante, then Applicant will suffer irreparable harm if interim relief is not granted. In my view, this constitutes a reasonable and sufficient basis for granting the relief sought. See Zimbabwe Open University vs. Magaramombe SC 20/12

The issue argued before the court, though relating to the aspect of urgency, is

inextricably  linked to the issue of whether or not Applicant has justified it is entitled to the interim relief sought. This is only an interlocutory application. It does not at all dispose of the merits, or determine the parties rights in the substantive issues involved.  Deferring it for further argument, in an interlocutory matter where the fundamental interests of the parties are not prejudiced,  would unduly prolong proceedings. In the result, it is ordered that:

Execution  of the arbitral award issued by Honourable P. Bvumbe be and is hereby stayed pending determination of the appeal before this Honourable court under case number LC/H/903/13.

There shall be no order as to costs.

Messrs Dube, Manikai & Hwacha – applicant’s legal practitioners

Messrs Matsikidze & Mucheche – respondent’s legal practitioners