H-Mix (Private) Limited v A. Kamonere and 13 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/455/13
HELD AT HARARE ON 17TH SEPTEMBER, 2013
CASE NO. LC/H/398/13
AND 27TH SEPTEMBER, 2013
JUDGMENT NO.LC/H/455/13
---------




IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO.LC/H/455/13

HELD AT HARARE ON 17TH SEPTEMBER, 2013	  CASE NO. LC/H/398/13

AND 27TH SEPTEMBER, 2013

In the matter between:-

H-MIX (PRIVATE) LIMITED			-		Applicant

And

A. KAMONERE AND 13 OTHERS			-		Respondent

Before 	The Honourable G. Mhuri, Judge

The Honourable E. Kabasa, Judge

For Applicant	: 	Mr.P. Nyeperai (Legal Practitioner)

For Respondent:	Miss. J. Mawora (Legal Practitioner)

MHURI J:

Respondent has raised a point in limine to the effect that Appellant has approached this Court with dirty hands it having not complied with the award nor made an application in terms of Section 92E (3) of the Labour Act.

It is trite that an appeal to the Labour Court does not suspend the decision appealed against.

Section 92E(2) of the Act refers.

In casu, the Arbitrator awarded that,

“the Appellant improperly put the employees on short time work.

Employees must be paid their normal wages from the date when short time work started…………..”

Appellant did not comply with this award.  Neither has it applied for an interim determination suspending the award pending the appeal it filed in this court.

Appellant submitted that the Respondents made it impossible for it to comply with the award and also that it is going through financial difficulties.  It also submitted that as a result of the financial difficulties it was difficult for it to engage a legal practitioner to file an application in terms of Section 92E(3).

We were not persuaded at all by these submissions.  Appellant has been legally represented right from the onset to date.  If it could be so legally represented the same legal practitioner could have given it the legal advice that its appeal does not suspend the award and therefore had to do one of the following

comply or

apply for suspension.

It does not need a legal practitioner to file an application.  The same reasons being preferred today would be the reasons for the application.

Once Appellant noticed that Respondents were being difficult in the negotiations, it could have then rushed to make the application.  It did not.

The fact that Respondents did not try to execute on the award does not assist Appellant at all.

We find that Appellant having not complied with the award nor made an application for the suspension in terms of Section 92E(3) Appellant has approached the Court with dirty hands.  To that end the point in limine is upheld.  Accordingly Appellant cannot be heard until it has purged its contempt.

The appeal is therefore stuck off with costs.

.................

G. MHURI

JUDGE

................ I agree

E. KABASA

JUDGE

Costa and Madzonga – Appellant’s Legal Practitioner

Pundu and Company – Respondent’s Legal Practitioners