Manica Road Haulage v Edmore Musafare & 4 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/56/2014
HELD AT HARARE ON 24 JANUARY &
14 FEBRUARY 2014
CASE NO LC/H/674/2013
---------




IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/56/2014

HELD AT HARARE ON 24 JANUARY &	  CASE NO LC/H/674/2013

14 FEBRUARY 2014

In the matter between:-

MANICA ROAD HAULAGE						APPLICANT

And

EDMORE MUSAFARE						1STRESPONDENT

And

J TSEKETE								2ND RESPONDENT

And

K KADIRA								3RD RESPONDENT

And

P KATAMBARARE							4TH RESPONDENT

And

J MUTESVA								5TH RESPONDENT

Before Hon. Justice L.M. Murasi

M.F. Makore, for Applicant

C.K. Mutevhe, for Respondents

MURASI J:

The Applicant has approached this Court with an application for Stay of Execution of the award granted in favour of the Respondents by the Arbitrator on 5 August 2013. The Respondents intend to register the award for the purposes of execution.

The brief history of the matter is that the Respondents were employed by the Applicant. The Applicant at one time failed to pay their wages and arranged that a haulage truck be allocated to them so that they could use it in order to recover those unpaid wages. The record is not clear as to when this arrangement was made and when it was to end. However, what is clear is that the haulage truck broke down and the Respondents were unable to use it anymore. The Respondents’ employment was terminated in May 2013 and the matter was referred to arbitration and the Arbitrator ruled against the Applicant. The Applicant has since appealed to this Court.

This application is premised on the provisions of section 92 E of the Act. The interpretation of the section has been the subject of decisions in the High Court. This Court associates itself with the later decisions after the Dhlodlo case which interpret the provision to mean that an appeal under section 98 (10) is an appeal in terms of the Act and does not preclude the suspension of the decision appealed against. (See Kingdom Bank Workers Committee v Kingdom Bank Financial Holdings HH-302-11andSaneleDhlomoBhala v LowveldRhino TrustHH-263-13).

It is trite that in applications of this nature the Court, of necessity, has to consider the following issues:

Prospects of success;

Prejudice to the other party;

Balance of convenience; and

Need to have finality in cases.

The Applicant’s address on the first issue of prospects of success was based on what it termed an erroneous decision on the part of the Arbitrator. The facts are essentially common cause. What the Arbitrator was enjoined to do, in terms of the Terms of Reference, was to make a decision firstly, on whether or not there was non-payment of terminal benefits and outstanding wages and secondly, to determine the remedy thereof. The Arbitrator found that:

“… it is apparent from the submissions that there is no longer an employment relationship between the parties and that the contracts were not formally terminated and that therefore the claim for three months’ notice pay suffices.”

The Applicant avers that the termination of employment was mutual but no such documentary evidence was placed before the Arbitrator. The Arbitrator believed the Respondents on this point. The Applicant further alleged that the figures arrived at by the Arbitrator were erroneous as the Arbitrator did not take into account the period that the Respondents had been using the truck allocated to them by the Applicant. This was certainly an error on the Applicant’s part as the record clearly shows that the Arbitrator in his award observed that:

“… it would be improper to order the Respondent to pay Claimants for the period they were operating the truck”….”

When the Court pressed the Applicant’s Counsel to clearly show where the Arbitrator was in error on the calculations he had arrived at, Counsel was unable to do so. The Applicant did not allege any gross unreasonableness on the Arbitrator’s part. An appellate court is not called upon to re-assess the case and come up to a conclusion. Rather, the court is merely called upon to scrutinise the decision to ensure that it is reasonable in the circumstances. I am not convinced that the Applicant has clearly shown that there was something grossly irregular in the proceedings warranting interference by anappellate court. It was common cause that the contracts were terminated. It was common cause that the Applicant was in arrears in salary payments. It was also common cause that no terminal benefits had been paid to the Respondents. Based on the evidence adduced before the Arbitrator, this Court is of the view that the finding of the Arbitrator cannot be faulted. This submission on the prospects of success does not find favour with this Court.

The Applicant addressed the Court on the second point, that is, prejudice to the other party. It was submitted that if execution was to go ahead and the appeal was in the Applicant’s favour, the Applicant would have to recover from the Respondents at its own cost. The balance of convenience, it was submitted, favoured a stay of execution. The Respondents submitted that this situation can only be tenable where there is no legal remedy. The Respondents argued that there is still a legal remedy for the Applicant to recover whatever would have been paid. Whilst it is arguable that it may take the Applicant sometime to recover from all the Respondents, the question to be answered in earnest is where the balance of convenience lies. The Applicant was failing to pay the Respondents. The Applicant had in fact made an arrangement with the Respondents to utilise a haulage truck to recover arrear salaries. The Respondents had not taken the applicant to court. No terminal benefits were paid to the Respondents.

Indeed, if the balance of convenience is to be judiciously weighed, it should fall in favour of the Respondents. The need for finality in cases has to be taken into account.

GUBBAY J (as he then was) addressed this issue in Santam Insurance Company v Paget 1981 (2) ZLR 132 at page 134 and stated thus:

“… the court enjoys an inherent power, subject to such rules as there are, to control its own process. It may, therefore, in the exercise of a wide discretion, stay the use of its process of execution where real and substantial justice so demands … The onus rests on the party claiming this type of relief to satisfy the court that injustice would otherwise be caused him or, to express the proposition in a different form of the potentiality of his suffering irreparable harm or prejudice.”

This Court is of the firm view that the Applicant has not demonstrated that substantial justice demands a stay of execution. The Applicant has not satisfactorily made out a case that there is a potential of it suffering irreparable harm or prejudice were execution to go ahead.

In the result, the application for a stay of execution of the Arbitrator’s award issued on 5 August 2013 is hereby dismissed.

There is no order as to costs.

Maunga, Maanda& Associates, Applicant’s legal practitioners

Mugadza, Chinzamba& Partners, Respondents’ legal practitioners