Metal Sales Group (Pvt) Ltd v Rodreck Chiwara

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/622/2014
HARARE, 12 & 26 SEPTEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/622/2014

HARARE, 12 & 26 SEPTEMBER 2014		           	CASE NO. LC/APP/H/47/14

LC/H/138/14

In the matter between:-

METAL SALES GROUP (PVT) LTD				Applicant

And

RODRECK CHIWARA						Respondent

Before The Honorable F.C. Maxwell, Judge

For Applicant		Mr. E. Dondo (Legal Practitioner)

For Respondent		Mr. B. Makururu (Legal Practitioner)

MAXWELL, J:

This is an application for stay of execution of an arbitral award in favour of the Respondent.  The award was issued on 20 January 2014.  On the 17 February 17 February 2014 Applicant noted an appeal against the arbitral award.  The appeal is yet to be heard.

The Respondent opposed the application on the basis that it was made prematurely as the award had not yet been registered.  Respondent also raised the issue that the application is not in the prescribed form and is therefore defective.  Respondent further denied that there are prospects of success on appeal and that irreparable harm would result.

The appeal was noted by the Applicant’s Human Resources Manager.  The Applicant subsequently engaged legal practitioners and both parties filed heads of argument in this application.  At the hearing of this matter Respondent raised two points in limine and prayed for the dismissal of the application without the consideration of the merits.  The first point was that the application was prematurely filed.  Respondent submitted that the applicable rule was Rule 34 of S.I. 59/2006 which applies only when an order or decision or determination has been registered.  Respondent also submitted that since an award has to be registered for it to be enforced, one cannot seek to stay the operation of that which is not enforceable as the award in casu has not been registered.

The second point in limine was that the application does not comply with the prescribed form.  Respondent submitted that Rule 14 of S.I. 59/2006 makes it mandatory for an application to be in the prescribed form.

In response Applicant stated that rule 34 was not applicable in this case and that it was a practice of this court to decline to deal with an appeal where an award has not been complied with and the appellant has not obtained an order staying its execution.  Applicant submitted that there is no basis upon which the Respondent relied for submitting that Applicant had failed to abide by the rules of the honourable Court.

I dismissed the points in limine for the following reasons.

The application is not in terms of Rule 34 of S.I. 59/2006.  That rule refers to where a decision, order or determination has been registered in terms of section 92B (2) of the Labour Act [Chapter 28:01] which is not the case in casu.

This court is empowered by section 92 E (3) of the Labour Act to deal with the application.

In any event once an award has been registered in the High Court this Court ceases to have jurisdiction to order stay of its execution.  An applicant in such a case will have to approach the High Court.

There is no prescribed form for such an application.  Rule 14 of S.I. 59/2009 is clearly not applicable as it deals with applications in which a certificate of no settlement has been issued and also where the 30 days allowed for a labour officer to settle a dispute have expired.

I thereafter proceeded to hear the merits of the application.  Applicant submitted that it has prospects of success as the arbitrator had misinterpreted a policy clause taking it as being mandatory when it was not.  Applicant further submitted that the arbitrator had made an error in awarding $4 500.00 as salary arrears when there is no indication of how he arrived at that figure.  Applicant further submitted that the arbitrator wrongly concluded that Respondent was constructively dismissed and the balance of convenience favour the granting of the relief sought.  Applicant referred the Court to the case of Ndlovu v Zimbabwe Grain Bag HC-1039/02 for the proposition that it is the practice of the Courts to allow litigation to its finality before allowing execution to proceed.

Respondent submitted that there are no prospects of success on appeal as no question of law is raised in the grounds of appeal.  Respondent further submitted that the balance of convenience is looked at in the light of the prospects of success and were the prospects of success are nil then the balance of convenience favours Respondent.  Respondent contended that there is no reason for him being deprived of benefitting from what was awarded to him.  In any case a number of issues awarded were not appealed against.

For an application of this nature to succeed the applicant must satisfy the Court that irreparable harm or prejudice will result if execution is not stayed and the appeal succeeds.  In other words the Court must be satisfied that there are prospects of the appeal succeeding.  See Zimbabwe Open University v Gideon Magaramombe & Anor SC-20-12.  The application for the suspension of the execution of an award, when it is successful, safeguards the interests of both parties.  It guards against the use of money which the Respondent might not be able to reimburse should the applicant succeed on appeal.  At the same time if the appeal fails, the Respondent can always proceed to execute on the award.

The Respondent has conceded that there are two grounds of appeal that are valid, i.e. the misinterpretation of the policy on motor vehicles and the calculation of the gratuity.  There is a likelihood that an appellate Court might come to a different conclusion from that of the arbitrator.  The balance of convenience therefore favours the granting of interim relief.

Accordingly it is ordered that

The execution of the arbitral award handed down on 20 January 2014 be and is hereby stayed pending the hearing of the appeal filed on 17 February 2014.

PUNDU & COMPANY, Applicant’s legal practitioners

MUSONI MASASIRE LAW CHAMBERS, Respondent’s legal practitioners