Inter-Agric (Private) Limited v Madavanhu Allen and 12 Others

### Preamble
HH 100-2010
HC 1474/10
INTER-AGRIC (PRIVATE) LIMITED
versus
MADAVANHU ALLEN AND 12 OTHERS
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INTER-AGRIC (PRIVATE) LIMITED
versus
MADAVANHU ALLEN AND 12 OTHERS

HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 17 March 2010 and 9 June 2010

K Kadzere, for the applicant
A Madavanhu, for the first respondent

Urgent Application

BHUNU J The thirteen respondents in this case are former employees of the applicant company. On 23 June 2009 they obtained an arbitral award against the applicant. The arbitral award required the applicant to pay the respondents a grant total of US$91 937-26 being damages for unlawful dismissal.

Aggrieved by the arbitral award the applicant appealed to the Labour court but delayed in taking the necessary action to avert the risk of enforcement of the order before the registration of the award for enforcement. Notwithstanding the noting of appeal, s 92 E of the Act expressly provides that an appeal to the Labour court does not suspend the decision appealed against. The law maker however provided a safety valve by clothing the Labour court with the power to make interim orders which may suspend the enforcement of the arbitral award pending appeal according to the justice of the case. It provides that:

“92 E

(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.
(2) An appeal in terms of subs (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” (my emphasis)

It is pertinent to note that the law maker has expressly conferred the power to suspend the enforcement of an arbitral award on the Labour court and not any other court. In *Tuso v City of Harare* 2004 (1) ZLR this court held that the law maker has expressly excluded the High court’s jurisdiction in areas where it has expressly conferred jurisdiction on the Labour court. Applying the *expressio unis* rule, that is to say the express mention of the Labour court in subs 3 of s 92 E means that it is only the Labour court which can issue an interim order suspending the execution of an arbitral award in terms of the Labour Act [*Cap 28:01*].

The applicant has now filed a supplementary affidavit stating that the Labour court has since issued an order under case number LC/H/200/09 suspending the arbitral award in question.

In suspending the arbitral award the Labour court was within its rights. The arbitral award having been lawfully suspended it follows that execution was also suspended pending the outcome of the appeal in the Labour court. That being the case the application can only succeed.

TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable court why a final order should not be made in the following terms:

1. The provisional order granted in this case be and is hereby granted.

INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicant is granted the following relief:

1. The fourteenth respondent be and is hereby ordered to stay the execution of the order of this court in case number HC 3240/09 pending the finalization of the application for rescission of judgment under case number HC 1473/10.

SERVICE OF PROVISIONAL ORDER

This provisional order shall be served on the respondents by a responsible clerk in the employ of Messrs Gill, Godlonton & Gerrans Legal Practitioners, Harare.

Date: .....................................................
JUDGE

F G Gijima & Associates, appellant’s legal practitioners
The Legal Aid Directorate, respondent’s legal practitioners
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