HARARE, NOVEMBER 20,  &  JANUARY 10,  2013

T Mpofu with T Ndoro, for the applicant

E Kadzere with M Mandevere, for the respondents


Before, ZIYAMBI JA, in chambers in terms of r 5 of the Supreme Court Rules.

The applicant sought an order interdicting the respondents from levying execution on its property pending an appeal against an order of the High Court refusing it a stay of execution.  The matter was brought before me as an urgent application.

The respondents, who are former employees of the applicant, were dismissed by the latter for misconduct.  The arbitrator to whom the dispute was referred found that the respondents had been unlawfully dismissed and ordered their reinstatement.  Following a failure by the applicant to reinstate them, the respondents sought quantification of the award by the arbitrator who granted them sums totalling approximately US$308 000.   The respondents caused the order to be registered in the High Court and commenced the process of execution.  The applicant’s property was attached and scheduled for removal and sale.  Both the arbitral award and the quantification thereof were, at that time, the subject of appeals before the Labour Court.

The High Court found, firstly, that it had no jurisdiction to grant the order sought since the matter was on appeal before the Labour Court to which the applicant should have made an application to suspend execution of the order. Secondly, that the applicants ought to have exhausted their domestic remedies before approaching it.

It was submitted on behalf of the applicants that the learned Judge erred in declining jurisdiction and refusing to consider the merits of the application for a stay of execution since the arbitral award became an order of the High Court upon registration in that court and was suspended pending the appeals which were before the Labour Court.  In the circumstances only the High Court could entertain an application for stay of execution of the award.  See Net One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (S).

The respondents however argued that an appeal against an arbitrator’s award is an appeal in terms of the Labour Act [Cap 28:01] (“the Act”) and is not suspended pending appeal.  They referred me to Zimphosphate v Matora & Ors SC 44/2005.  The decision in the Net One Cellular case (supra), they argued, was given prior to the introduction of s  92E of the Act and in Zimbabwe Open University v Gideon Magaramombe & Deputy Sheriff Harare N.O SC 20/12 it was decided that it was within the Labour Court’s powers to suspend the execution of an arbitral award.  Accordingly, the applicant ought to have proceeded, in terms of s 92E(3) of the Act, to apply to the Labour Court for a stay of execution pending appeal which it failed to do.  It was submitted that the High Court was correct in holding that it lacked jurisdiction to grant the order on the basis that the matter was now before the Labour Court in terms of s 92E.  They submitted that the application before me was not urgent, that the applicant had been lax in safeguarding its rights, and that this application constituted an abuse of process.