Merchant Bank of Central Africa v Arbitrator Kare & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/66/2014
HARARE, 10 SEPTEMBER 2013, 8
OCTOBER 2013, 17 OCTOBER 2013
CASE NO LC/H/186/2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/66/2014

HARARE, 10 SEPTEMBER 2013, 8 		   CASE NO LC/H/186/2013

OCTOBER 2013, 17 OCTOBER 2013 &

14 FEBRUARY 2014

In the matter between:-

MERCHANT BANK OF CENTRAL AFRICA			APPELLANT

Versus

ARBITRATOR KARE						1ST RESPONDENT

And

MICHAEL MANZINI						2ND RESPONDENT

And

VIVIAN MANTIZIBA						3RD RESPONDENT

And

BRIAN KASHIRI							4TH RESPONDENT

Before the Honourable Makamure J

For the Appellant			S Hwacha (Legal Practitioner)

For the Respondents			T Marimo (Trade Unionist)

MAKAMURE J:

This matter was brought to this court for both appeal and review purposes. However before the matter could be argued a point in limine was raised on behalf of the respondents. It was submitted that the appellant is not properly before the court. It was argued that the appellant did not comply with the award being appealed against. For that reason Mr Marimo who appeared on behalf of the respondents submitted that the appellant is in contempt of court and therefore should not be heard.

Mr Hwacha who appeared on behalf of the appellant argued that the Labour Act [Cap 28:01] (“The Act”) simply provides for a party to make an application for interim relief pending final determination. Such provision, Mr Hwacha further argued that what the Act does is to provide for the successful party to enforce the award an appeal not- withstanding. The burden was therefore placed on the respondent to ensure that thearbitral award was enforced. Had such process been instituted the appellant would have found it necessary to apply for an interim relief. For this reason Mr Hwachasubmitted that the appellant was not in contempt of court.

Counsel referred the court to authority. Section 92 E(2) and 92 E (3)of the Act provides as follows:

“ (2)An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

(3)Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires.”

When the legislature made provisions showing that the operation of an award being appealed against is not suspended by the noting of an appeal, I am sure there was a reason for doing so. If I understood counsel for the appellant correctly, they submitted that firstly the section does notoblige an employer to comply and secondly “thedirty hands” principle is not directed at inferior tribunals. I disagree.

It is in my view clear that a party if aggrieved by an arbitral award to the extent of wanting to appeal, they are obliged to apply for an interim relief. This will ensure that when they note an appeal, the interim relief will act in their favour.

In Standard Chartered Bank Limited v Standard Chartered Workers Committee LC-H-194-200 President L HOVE (as she then was) stated that:

“The Act provided for the suspension of the operation of a judgment that is being appealed against pending the hearing of such appeal.” The President held that the failure by a party to comply was ‘not out of ignorance but was deemed to have been a wilful decision taken reckless as to the consequences of acting outside the provision of the law.’”

In the same vein PATEL J (as he then was) in Kingdom Bank Workers Committee v Kingdom Bank Financial HoldingsHH-302-2011 stated that:

“The common law position which suspended the operation of an award on determination appealed against was modified by s 92 E (2). This therefore means that a party has to be granted some relief to stop its operation. Failing to do so means the party has offended against the law.”

In the circumstances I am in agreement with the representative for the respondent that the appellant is not properly before the court. There is therefore merit in the point in limineraised that the appellant can only be heard after they have purged their non-compliance.

Accordingly it is ordered that the point in limine be and is hereby upheld.

DubeManikai&Hwacha, appellant’s legal practitioners

ZIBAWU, respondents’ representatives