IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/31/14

HELD AT HARARE 6TH DECEMBER 2013 CASE NO LC/REV/H/99/13

& 31ST JANUARY 2014
In the matter between:-
MDC – T Applicant
And
H MAVHANGIRA & 13 OTHERS Respondents
Before The Honourable R.F. Manyangadze, Judge
For Applicant Mr B Peresuh (Legal Practitioner)
For Respondents Mr P Mawadze (Legal Practitioner)

MANYANGADZE, J:
This is an application for stay of execution of an arbitral award granted
on 30th September 2013, in which damages were quantified and amounted to a
total of US$491 760.00.

A brief history of the matter is as follows.

The Applicant terminated Respondents’ contracts of employment in
August 2010. The Respondents challenged the termination as an unfair
dismissal. They won an arbitral award on the 3 rd of May 2012, in which
Applicant was ordered to reinstate the Respondents or pay them damages for
unlawful dismissal.

The Applicant appealed against that award, and the appeal is pending
under Case No LC/H/364/12. THE Applicant also filed an application for stay of
execution of that award. From the papers in the instant application, it appears
the parties were given an opportunity to settle the matter (the main appeal)
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out of court, in the course of which the application for stay of execution was
postponed sine die.
The parties failed to reach a settlement. The Respondents filed an
application for quantification of damages which application was granted on the
30th of September 2013.

The Respondents proceeded to file an application in the High Court for

registration of the quantification award. The application, which is being
opposed by the Applicant, is pending under Case No H.C. 9142/13

In early November 2013, Applicant filed an application for review of the

arbitral award of 30th September 2013, on the basis that Applicant was not
given proper notice of the arbitration hearing and was denied an opportunity
to file its submissions.

The Applicant also filed the instant application, which is an urgent

application for stay of execution of the arbitral award in respect of which the
review is sought, pending the outcome of such review.

The basis of the application for stay of execution, which Applicant

describes in its papers as suspension of the arbitral award, is that Applicant will
suffer irreparable harm if Respondents proceed to execute the arbitral award.
In the event that Applicant succeeds in its application for review, it is unlikely
to recover the monies that would have been paid to the Respondents.

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Respondents raised several points in limine, urging the Court to dismiss

the application on the basis of these points. The points raised can be outlined
as follows:
1) An affidavit deposed to by Ms G.T. Nyamai, a Legal Practitioner in the
employ of Applicant’s Legal Practitioners, should not form part of the
record.
2) The Labour Court has no jurisdiction to hear the application, since
there are pending proceedings in the High Court for registration of
the arbitral award.
3) There is no basis for an application for stay of execution pending
review. Such an application can only be made pending appeal against
an arbitral award.
4) Application is not urgent.
5) Applicant used wrong procedure by applying for a review, instead of
a rescission of the arbitral award on the basis that it was a default
judgment.
6) The application is lis pendens
7) Applicant is coming to Court with dirty hands.

I must deal with each of the points raised in limine, and determine
whether the application should be rejected on the basis thereof.
Affidavit
Under this point, the basis of Respondents’ contention is an affidavit
deposed to by Ms Gloria Nyamai. Ms Gloria Nyamai is a Legal Practitioner in
the employ of Honey & Blankenberg, Legal Practitioners of record for the
Applicant. As such, she is part of the team of Legal Practitioners for the
Applicant.

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The Applicant seeks to incorporate an Affidavit by Ms Nyamai, in which

she refutes Respondents averment that she made an undertaking on behalf of
the Applicant, that Mr B Peresuh will file submissions within 14 days from the
18th of July 2013. This undertaking was allegedly made when Ms Nyamai
appeared before Honourable D Mudzengi, the Arbitrator who was handling the
dispute between the parties. She was standing in for Mr B Peresuh, who was
indisposed.

It is significant to note that both parties are agreed that it is improper for
a Legal Practitioner to file an affidavit on behalf of a client, unless there are
exceptional circumstances warranting such a course of action.

In the case of Khuzwayo v Assistant Master & Others 2007 (1) ZLR 34
(H) a Respondent’s lawyer was censured by the High Court, for filing an
affidavit on matters that were said to be within the personal knowledge of the
client and not within his personal knowledge.

In the instant case, I think we are faced with a situation where a matter
peculiarly within the Legal Practitioner’s knowledge is in issue. It is the
pertinent question of whether or not an undertaking to file submissions within
14 days was made. Ms Nyamai is the lawyer who supposedly made such a
binding commitment.

No one else can authentically clarify the situation. It seems to me, she is
placed in the rather unenviable position of having to clear the air herself. This,
in my view, is an exceptional situation were a departure from the norm can be

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justified. In the circumstances, it is held that the application to incorporate Ms

Nyamai’s affidavit has been properly made.

Jurisdiction
Objection to this Court’s jurisdiction is premised on the fact that an
application of the arbitral award in question has been made in the High Court,
where it is still pending. The application for stay of execution, it is argued,
must be filed with the High Court, and not the Labour Court.

The Labour Court is a creature of statute. It derives its authority from,

and is guided by the Labour Act, [Chapter 28:01] and any regulations made
there under.

The applicable provision is found in Rule 34 of the Labour Court Rules,

Statutory Instrument 59 of 2006. It reads as follows:
“Where a decision, order or determination has been registered
in terms of section 92 B (3) of the Act, the Court or a President
sitting in chambers may, upon application, order a stay of
execution of the decision, order or determination.”
This Statutory provision is quite clear. It does not preclude a litigant
from seeking interim relief, such as stay of execution, in the Labour Court, by
reason of the order or determination in respect of which such relief is sought
having been registered either with the Magistrate Court or High Court in terms
of Section 92 B (3) of the Act.

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Guided by these provisions, I do not think that an application for stay of

execution relating to an order whose registration is pending in the High Court
for purposes of enforcement cannot be made in this Court.

Furthermore, section 98 (9) of the Labour Act confers upon Arbitrators

the same powers, in labour matters, as those of the Labour Court. If
determinations of arbitral tribunals are executed the same way as those of the
Labour Court i.e. by means of registration at the Magistrates’ or High Court, I
do not see how arbitral awards can be excluded from the provisions of Rule 34.

Relief pending review

The point Respondents are making here is that there is no provision for
interim relief pending review. The provision is there only pending appeal.
The argument by the Respondents, essentially, is that the application for
interim relief is wrong at law. It is detective in that it does not emanate from a
pending appeal but a pending review.

With respect, I am unable to uphold Respondents’ contention. As

pointed out by Applicant, as provided for in section 89 (1) (d) of the Labour
Act, the Labour Court exercises the “same powers of review as would be
exercisable by the High Court in respect of labour matters.”

Apart from determining the review itself, the High Court determines
ancillary matters relating to the execution of the determination under review.
In my view, there is no basis for limiting the Labour Court to determination of
the review itself, if prejudice may conceivably arise from matters ancillary
thereto.

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It seems Respondents are making a very restrictive application of Section

92 E (3) insisting that the express mention of “appeal” excludes “review”

If the strict and restrictive application of the law urged by the

Respondents is also applied to the preceding subsection i.e. 92 E (2), the logical
consequence would be that a review will have the effect of suspending the
determination or decision in question. The reasoning would be that since non-
suspension is mentioned with specific reference to an appeal, it does not apply
to a review.

I do not think such contradictions were intended by the legislature. The

bottom line is that there is an order or determination which is being
challenged, be it by review or appeal. Such challenge does not suspend the
determination or order. What is then provided for is a mechanism for interim
relief through an application for the suspension of the order or determination.
I believe this is an instance were a purposive interpretation of the law can be
properly made, to give effect to the intention of the legislature. I do not think
it was the intention of the legislature to grant relief in one situation, and deny
it in the other, where in both situations, it is sought that the determination in
question be temporarily stayed.

In the circumstances, I hold that the application for stay of execution

pending review of the arbitral award has been properly made.

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Urgency
On this aspect, a brief history of the matter has already been outlined,
showing how this application came about.

The decisive date is 30th September 2013, when the arbitral award was
handed down. What shows urgency is what the party adversely affected by
the award did upon learning of the award. This is where the parties are
making vehemently opposed averments.

Respondents contend that there was communication before the 1 st of

October, to the Applicant from the Arbitrator, that the arbitral award was
ready for collection. The Applicant did nothing about it until 8 th November
2013 when it filed the urgent chamber application for interim relief.

On the other hand, Applicant avers that it was not aware of the arbitral
determination until the 4th of October 2013, when it learnt of it from a press
article. It was not until 31st October 2013 that the Applicant received a copy of
the determination by way of service upon it of an application for registration of
the determination in the High Court for purposes of enforcement. Applicant
then lost no time in filing an application for urgent interim relief, in addition to
opposing the High Court application.

Applicant further pointed out that the issue dates back to the 17 th of in
July 2013, when they were given short notice to attend the arbitral hearing of
the 18th of July 2013. This hearing, as already indicated, was attended by Ms
Nyamai on behalf of Mr Peresuh. What transpired in that hearing is the
subject of very contentious assertions by the parties.

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Applicant asserts that it wrote a number of letters to the Arbitrator,

seeking clarification on how the session of 18 th July 2013 was conducted, and
how the arbitral award of 30th September 2013 was made, despite an
agreement or understanding that the matter was not to be dealt with whilst an
application for interim relief filed in respect of the main appeal, was still
pending.

Respondents concede there was a flurry of letters from Applicant to the

Arbitrator. On behalf of Respondents, it was submitted that Applicant wrote
several letters to the Arbitrator querying a lot of issues. Respondents hastened
to add that Applicant should have taken action to have award rescinded or set
aside, instead of writing the numerous letters.

The Respondents have however, not been able to point to any

correspondence from the Arbitrator’s Office calling upon the Applicant to
collect the arbitral award in question. In the absence of this, the doubt not
must be resolved in Applicant’s favour, that it was in receipt of a copy of the
award on or about 31st October 2013, when it was served with the application
for registration of the award. This is what then galvanised the Applicant into
lodging the urgent application for interim relief. It cannot therefore be said to
have been lackadaisical or dilatory, or created its own urgency.

The application can reasonably be said to have been filed in

circumstances of urgency.

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Default

It is contended on behalf of the Respondents, that Applicant was in

default when the arbitral award was handed down on the 30 th of September
2013. The default consists in it having failed or neglected to file its
submissions. The Applicant should therefore have sought relief by way of an
application for rescission of the default judgment.

There is no explicit provision on rescission of judgments by an Arbitrator.

Reliance is often placed on section 98 (9) of the Labour Act, which states, that
an Arbitrator exercises the same powers as the Labour Court in labour matters.
.

The point advanced on behalf of the Respondents is that if a litigant has

been given notice, and has defaulted to file submissions when called upon to
do so, and a Court goes on to give a decision, the decision is based on default,
which is capable of rescission.

I must say this is a correct exposition of procedural law. A default

judgment is remedied by rescission of such judgment, on good cause shown by
the party prejudiced by it.

What is however peculiar in this matter is that it is not premised on

default, but on allegations of bias and procedural irregularity.

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The question of whether or not Applicant was in default can be traced

back to the hearing of the 18 th of July 2013. As already indicated, what
transpired in that session is in serious contention. It is on the basis of that the
allegations of procedural irregularity have arisen. It is further on the basis of
such allegations that the application for review has been made.

The merits or otherwise of these averments, of bias and procedural

irregularity, will be the subject of the review hearing.

It cannot be said that this is a clear cut case of an application for

rescission of a default judgment, given the issues in contention. I hold
therefore, in the circumstances, that the application for review was properly
filed. Its merits or otherwise will be determined at the appropriate stage

Lis pendens

As I see it, there is no contention on the legal principles of lis alibi

pendens. Applicant referred the Court to the book by Herbstern and van
Winsen, “The Civil Practice of the Superior Courts in South Africa” 3 rd ed
(1997) Butter worths; Durban, where, at pages 269 – 270, the learned authors
postulate thus:

“If an action is already pending between parties and the plaintiff

therein brings another action against the same defendant on the
same cause of action and in respect of the same subject matter,
whether in the same or different court, it is open to such defendant
to take the objections of lis pendens , that is, another action

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respecting the identical subject matter has already been instituted,

whereupon the court, in its discretion, may stay the second action
pending the decision in the first action” (at 269 – 270. Emphasis
added.)

The parties differ in their application of the principles enunciated, to the

facts in casu.

I agree with the Applicant that the test of lis pendins, in casu, fails on the
requirements of the same cause of action and the same relief or subject
matter.

The background to this matter has shown the emergence of two arbitral
awards. One deals with the issue of unlawful dismissal. The other dealt with
quantification of damages for the unlawful dismissal. In the former, Applicant
seeks to have the contracts of employment ruled unlawful, with Respondents
arguing for a ruling that they be found to be lawful. In the latter, the relief
sought relates to quantification of an award that has already been made. It
seeks to stop enforcement of that quantification. It has been prompted by the
imminence of such enforcement. In this regard, it does not duplicate the
earlier application where those elements were not in issue.

Dirty Hands
Respondents contend that Applicant must not have right of audience
until it has complied with the arbitral award of 3 rd of May 2012. It cannot seek

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the protection of the Court when this order, which has not been suspended,
has not been complied with.

Applicant has referred the Court to a number of cases, among them that
of the Director General of the Central Inteligence Organisation v Minister of
State Security, HH 37/05, and Air Zimbabwe v National Workers Union
LC/H/147/10.

The cases underpin the principle that orders by courts must be observed
and respected by those affected by such orders, and a party approaching the
court has no right of audience if in contempt of court, unless and until they
purge the contempt.

The principles referred to are, without doubt, fundamental principles of

our procedural law. What needs to be resolved is whether Applicant has fallen
foul of these requirements.

It has been argued, on behalf of the Applicant, that , in respect of the

initial award, the Respondents opted for damages. The issue of their
reinstatement therefore fell off. Consequently, Applicant could not be said to
be in contempt of the order to reinstate the Respondents. Significantly, this
averment, which accords with what has transpired, was not controverted by
the Respondents. Indeed, it is difficult to hold the Applicant in contempt of
that portion of a court order that has been rendered inoperable against it, by
reason of Respondents’ push for the alternative remedy of damages for
unlawful dismissal.

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The portion relating to damages could not be enforced until the

damages were quantified on 30 th of the September 2013, after which Applicant
was required to comply with the arbitral award.

However, the issue of compliance is what is the subject of the current

application. The issue of contempt does not therefore arise. The
Respondents have not even raised it in respect of the second arbitral award.

In the circumstances, and for the reasons stated, each of the

Respondents’ points in limine cannot be upheld.

It must be pointed out that the parties argued at length on the points in
limine, which were quite numerous. They did not indicate that the rest of the
matter could be decided on the papers, in the event that the points in limine
are dismissed. What it means is that they must, once again, be given an
opportunity to argue the merits of the application.

Having dealt with the extensive points in limine raised in this matter, and
having regard to the findings I have made in respect thereof, I am of the view
that I should not proceed to hear arguments on the merits. I believe it is more
appropriate that such hearing be presided over by another judge.

In the result, it is ordered that:

1. Each of the points in limine raised by the Respondents be and is hereby
dismissed.

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2. The Registrar shall set the application down for hearing on the merits
before a different Judge, on an urgent basis.
3. Costs shall be in the cause.

Honey & Blackenberg, Applicant’s Legal Practitioners

Manase & Manase, Respondents’ Legal Practitioners

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