Msasa Park (Pvt) Ltd v Charles Mike

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/243/2016
HARARE, 18 FEBRUARY 2016 &
CASE NO LC/H/697/2015
13 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/243/2016

HARARE, 18 FEBRUARY 2016 &			              CASE NO LC/H/697/2015

13 MAY 2016

In the matter between

MSASA PARK (PVT) LTD						       APPELLANT

Versus

CHARLES MIKE							     RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant     Mr Sithole (Advocate)

For the Respondent   Ms B Rupapa  (Legal Practitioner)

MUCHAWA J:

This is an appeal against an arbitral award.

The respondent, in his claim before the arbitrator wanted a determination on whether or not he was owed arrear salaries, and if so, the quantum thereof and the appropriate remedy.

The appellant denied having ever employed the respondent, whose relationship with it was said to be of an independent contractor.

The arbitrator found that the respondent was an employee of the appellant and that he should be paid outstanding salaries in the amount of US$304 000-00 (three hundred and four thousand United States dollars) within twenty-one days from the date of receipt of the award. The award was handed down on 21 July 2015.

On 30 July 2015, the appellant had lodged an appeal against the arbitral award. On 6 August 2015, the respondent filed its response to the appeal.

The grounds of appeal before me are:

The Honourable Arbitrator seriously misdirected himself on the facts by finding that the respondent was an employee when in fact he was not. Such a finding was not supported by any evidence and was contrary to the evidence presented before him. It is a misdirection on the facts that is so serious such that no reasonable person who applied his mind to the facts would have arrived at such a decision.

The Honourable Arbitrator erred by finding that the respondent was owed arrear salaries when the respondent was not entitled to such salaries as he was not an employee. Such a finding is contrary to the law.

The Honourable Arbitrator erred in finding that by failing to enforce his claims timeously the respondent had not waived his rights.

The Honourable Arbitrator erred in finding that the respondent’s claim had not prescribed.

The Honourable Arbitrator erred at law in awarding arrear salaries without receiving oral evidence to quantify same. There was need for the respondent to adduce oral evidence and have him subjected to cross examination in respect of what he alleged was owed such that the veracity of his claims could be tested under cross examination.

At the hearing of the appeal, I granted an application for condonation of late filing of heads of argument following an oral application by the applicant’s counsel as the delay was found not to be inordinate, the explanation given was reasonable and there appear to be prospects of success in the appeal.

The respondent proceeded at the hearing to raise a different preliminary issue, that the appellant is approaching the court with dirty hands and should not be heard. I reserved my judgment following submissions from both parties. This is it.

Ms Rupapa, for the respondent argues that the respondent is the holder of an arbitral award in his favour amounting to $304 000-00 which still stands as there is no order staying execution in terms of the Labour Act. In the circumstances, it is alleged that the appellant has no right of audience before this Court.

Mr Sithole, for the appellant objected to the raising of this point for the first time at the hearing as it was not put in neither the notice of response nor the heads of argument. He conceded however, that a point of law can be raised at any time as long as there is no prejudice. (See Muchakata v Netherburn Mine 1996 (1) ZLR 153 (SC). The prejudice on the appellant was the failure to respond fully.

The appellant contends that the issue of dirty hands does not arise due to the application of the doctrine of peremption. Compliance with the arbitral award would be conduct pointing indubitably and necessarily to the conclusion that the unsuccessful litigant does not intend to attack the judgment and would be inconsistent with an intention to appeal.

It is further argued that an unregistered arbitral award is not a court order and cannot be executed.

The section relied upon by the respondent to argue its case is section 92 E (3) which provides as follows:

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

Subsection 2 of section 92 E provides that an appeal to the Labour Court shall not have the effect of suspending the determination or decision appealed against.

When litigants get an award from an arbitrator, there are courses open to them. The unsuccessful litigant may either accept the judgment and comply with it or elect to attack it, where a right to appeal exists or an application for review is permissible.

In terms of section 92 E (3) the lodging of the appeal may be followed by an application for an interim determination.

On the other hand, the successful litigant may elect to wait and see what the other party will do or proceed to get the arbitral award registered in terms of section 98 (14) of the Labour Act with either the high Court or the Magistrates’ Court, depending on jurisdiction.

Section 98 (15) provides that once the arbitral award is registered it shall have the effect, for purposes of enforcement, of a civil judgment.

In casu the appellant, within about a week elected to attack the award by lodging an appeal. It seems an attempt to get an interim determination was unsuccessful. On the other hand, the respondent’s attempt to register the award was aborted, for reasons that are not relevant herein. In such a case should the appellant be denied a right to be heard on account of dirty hands? I think not for the following reasons:

This court will not lightly deprive a party of his right to be heard. In Hadkinson v Hadkinson [1952] 2 ALL ER 567 (CA) DENNING LJ stated that it is a strong thing for a court to refuse to hear a party to a cause and it is only justified when the contempt of a party impedes the course of justice and where there is no effective means of securing compliance.

The respondent has a route open to him to secure compliance by registering the award with the High Court. He has elected to wait for the appellant and has not prosecuted this route to its conclusion.

The respondent relies on the case of Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of Information & Publicity in the President’s Office & Ors SC 20-03. The case states:

“Defiance of a court order does not involve dishonesty or moral obliquity yet litigants in defiance of court orders more often than not are denied relief by the court until they have purged their contempt. In my view there is no difference in principle between a litigant in defiance of a court order and a litigant in defiance of the law. The court will not grant relief to a litigant with dirty hands in the absence of good cause being shown or until such defiance or contempt has been purged.”

Section 98 (13) of the Labour Act makes it clear that the arbitral award would only be enforceable after registration.

Section 92 E (2) by providing that an appeal does not suspend the determination appealed against allows the successful party to register the award for enforcement. Section 92 E (3) does not make it peremptory for the unsuccessful party to apply for interim determination.

It would also, on the basis of peremption, be absurd to require a party to first comply with an award they intend to attack and then come and attack it.

The case of Numsa obo Thilivali v Fry’s Metals & 2 Ors (JR 2817/2009) [ 2014] ZA LC JHB 115; (2015) 36 ILJ 232 (LC) is instructive on thus. It states that:

“If a party to a judgment acquiesces therein, either expressly, or by some unequivocal act wholly inconsistent with an intention to contest it, his right of appeal is said to be perempted, i.e. he cannot thereafter change his mind and note an appeal. Peremption is an example of the well-known principle that one may not approbate and reprobate, or, to use colloquial expressions, blow hot or cold, or have one’s cake and eat it. Peremption also includes elements of the principles of waiver and estoppel.”

I find too that it is undesirable for a party to raise a point in limine, as an ambush and in a manner which seems calculated to avoid going into the merits of a matter at all costs.

Accordingly the point in limine is dismissed and the Registrar is directed to set the matter down for hearing on the merits.

Rubaya & Chatambudza, appellant’s legal practitioners

Zinyengere Rupapa, respondent’s legal practitioners