Freda Rebbeca Mine v E Mapondera & 60 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/833/2014
HARARE, 31 OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/833/2014

HARARE, 31 OCTOBER 2014 &		              CASE NO LC/H/82/2011

19 DECEMBER 2014

In the matter between:

FREDA REBBECA MINE						          APPELLANT

Versus

E MAPONDERA & 60 ORS						RESPONDENTS

Before The Honourable F C Maxwell	:	Judge

For the Appellant		C Kwirira  (Legal Practitioner)

For the Respondent	A K Maguchu (Legal Practitioner)

MAXWELL J:

This is an application for stay of execution of an arbitral award issued on 12 January 2011. The application was filed on 28 October 2013, the same day the notice of appeal was filed. The applicant contends that the respondents are desirous of enforcing the award by the Honourable Dangarembizi in terms of the quantification award dated 26 March 2012. The applicant further contends that it will suffer irreparable prejudice if the respondents are allowed to execute on the award. On 28 May 2014 a notice of response was filed. The respondents point out that the application does not comply with Rule 14 (1)(c) of the Labour Court Rules of 2006 as it is not in Form LC1. The respondents referred to section 89 2 (d) of the Labour Act [Cap 28:01] as the only paragraph empowering this court to hear any other application, as the present one, other than those mentioned in subsections (b) and (c) of section 89. The respondents argued that the applicant should have removed the irrelevant details on Form LC1 and used it. In their view there is no application before the court as a wrong form was used. The respondents relied on the case of Zimbabwe Open University v Mazombwe H-H-43-2009 for the submission that the application is fatally defective and null for non-compliance with the rules. They also relied on the case of Jensen v Acavalos 1993 (1) ZLR 216.

On the merits the respondents contend that the applicant has no prospects of success and the balance of convenience favours them. The respondents submitted that the applicant’s appeal does not raise proper grounds of appeal. They further submitted that the applicant has dirty hands and should not be heard as it has not complied with the arbitral award ordering reinstatement. On the issue of non-compliance with the Rules of this Court, the applicant submitted in response that form LC1 was not applicable in this case. The applicant contended that it is applicable where an unfair labour practise is being referred from conciliation to the Labour Court, without first going to compulsory arbitration. An examination of Form LC1 gives credence to what the applicant contended. In the explanatory notes part (iii) requires an applicant to attach:

“(A)	the minute or record of any conciliation proceedings undertaken by the Labour Officer in connection with the dispute, whether the dispute was a dispute of interest or of right.

(B)	Any supporting documentation produced in connection with the conciliation proceedings.”

Part (iv) requires an application to be made within 21 days.

“A.	of the date on which the Applicant received a “certificate of no settlement” from a Labour Officer;

B.	of the thirtieth (30th) day after the Labour Officer tried to settle the dispute through conciliation, if the Labour Officer fails or refuses to issue a ‘certificate of no settlement’” .

Clearly the explanatory notes relate to applications in matters that were not referred to arbitration. The form further down requires the applicant to clarify whether the application is in terms of part (iv) A or B of the explanatory notes. The remedies which the applicant must indicate he is seeking also relate to the issues highlighted in the explanatory notes. I therefore do not find merit in the respondent’s objection to the form used. In any event the practice of this court has been largely to accept applications for interim relief in the format used by the applicant. I see no reason for departing therefrom. I find the case of Mazombwe cited by the respondents to be distinguishable from the present case on the basis that Form LC1 seems to have been designed for the proceedings that were not referred to arbitration. The form does not, from the face of it, suit a situation where an applicant is seeking interim relief as in the present case. Therefore unlike in the High Court where a specific form was available for the applicant to use, it is quite debatable whether in casu that is so. Accordingly I find no merit in the objection and I dismiss it.

Now considering whether or not there are prospects of success on appeal, it is interesting to note that the applicant is seeking the stay of two awards, appealed under different references. The court is aware that the appeal under reference LC/H.871/13 was dismissed after an application was made in terms of Rule 19 (3)(a) of the Labour Court Rules SI 59/2006. Consideration therefore of the prospects of success on appeal relates to the matter under reference LC/H.82/11.

The respondents submitted that the applicant’s application does not address prospects of success. The issue of prospects of success are only mentioned in heads of argument. The applicant does not raise any arguments to persuade the court that indeed there are prospects of the appeal succeeding. The applicant’s stance ignores the fact that granting of interim relief is an exercise of the court’s discretion. As such the applicant had a duty to place before the court facts that would persuade me to exercise that discretion in its favour. In Chibanda v King 1983 (1) ZLR 116 it was stated that it must be borne in mind that the granting of interim relief in such circumstances is at the expense of a litigant who has already established that he has a right and title to what is being claimed. There therefore must be compelling reasons for the court to order a delay in a successful litigant’s enjoyment of his rights. I find no such reasons in casu. Consequently the application fails.

I therefore order as follows:

The application for stay of execution be and is hereby dismissed with costs for lack of merit.

Magwaliba & Kwirira, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners