Amantia Investments (Pvt) Ltd v Ernest Mangoma

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/689/13
HELD AT HARARE ON 26TH NOVEMBER 2013 CASE NO
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IN THE LABOUR COURT OF ZIMBABWE                 JUDGEMENT NO LC/H/689/13

HELD AT HARARE ON 26TH NOVEMBER 2013        CASE NO LC/H/955/12

AND 20TH DECEMBER 2013

In the matter between:

AMANTIA INVESTMENTS (PVT) LTD					Applicant

And

ERNEST MANGOMA							Respondent

Before The Honourable L.M. Murasi, Judge

For Applicant:	Mr R Matsikidze (Legal Practitioner)

For Respondent:	Ms D Atukwa (Legal Practitioner)

MURASI, J:

This an application for stay of execution of an arbitral award handed down by Arbitrator E.F. Chitsa.  Applicant alleges that pending the appeal lodged with this Court, Respondent’s actions to execute the judgment be stayed.  What is interesting to note is that Respondent has partly executed the judgment and Applicant had to offer security which was lodged with Respondent’s legal practitioners.

Applicant largely abided by the Heads of Argument filed of record and stated that if Respondent was to be paid what was awarded by the Arbitrator, this would create an injustice as it would be difficult to recover the money from the Respondent.  Applicant states that the award was made in the absence of evidence led to prove Respondent’s entitlement to such benefits.  It is alleged that these benefits were not reflected in the contract of employment between Applicant and Respondent.  Further, Applicant submitted that the Arbitrator was not guided by the principles of quantification.  Applicant stated that once an Applicant has shown that there are prospects of success on appeal, the Court should grant the application.  Applicant submitted that the registration of the award with the High Court was for the purpose of enforcement.  It was intimated that if this Court were to order the stay of execution, such order issued by the Court would then be taken to the High Court so that execution is stayed.  It was further submitted by Applicant that the High Court does not have jurisdiction to consider the merits of labour cases as it is simply a registering court.

Respondent, on the other hand, was of a completely different view.  Respondent submitted that Applicant’s interpretation of the law in respect of these court orders was erroneous.  It was stated that once an award is registered with the High Court, it becomes a judgment of that Court and the Labour Court cannot interfere with such an order.  Respondent further stated that Applicant was not being candid with the Court because efforts made by Applicant to have execution stayed at the High Court had resulted in the application being dismissed.  Respondent further submitted that the case did not fall within the prescribed parameters where the Labour Court had power to order a stay of execution as envisaged in section 92 (B) (3) of the Labour Act [Chapter 28:01] or Rule 34 (1).

In considering this matter, the Court will consider the following issues firstly, whether the Court has jurisdiction to entertain the application and secondly, the prospects of success by Applicant appeal.

The issue pertaining to application for stay of execution has been dealt with by the courts in previous cases.  This Court is guided by precedent.  In Sibalizwe Dhlodhlo v The Deputy Sheriff for Marondera and Others HH/76/2011, Gowora J, (as she then was) dealt with this matter to some length.  This Court will rely on the dicta in that judgment is so far as interpretation of the provisions of both the Labour Act and the Rules as concerned.  On page 5 of the cyclostyled judgment the learned Judge held:

“In my view, the Labour Court provided for the suspension of orders or decisions registered under section 92 (B) (3) only.  The judgments under section 98 (14) have been excluded.”

Further at page 6;

“Effectively therefore, once this Court issued an order registering the award in favour of the Applicant, upon the registration of the award, became to all intents and purposes a judgment of the High Court.  The contention by the Applicant is that as a result of the registration the Labour Court ceases to have jurisdiction over the judgment and it cannot control, vary, set aside or rescind the judgment.  I think this is a correct exposition of the law. The effect of the registration with this Court is that only the High Court, barring an appeal to the Supreme Court, can interfere with the judgment or its execution.”

This Court agrees with the exposition of the legal position by the learned Judge.  The Labour Court’s jurisdiction cannot be read to regulate the proceedings of the High Court.  The Labour Court is a creature of statute and its mandate emanates from the four corners of the statute.  The High Court on the other hand, is a Court with inherent jurisdiction.  As stated by Chidyausiku CJ in ANZ v Minister of State for Information and Publicity and Others 2005 (1) ZLR (S) at 254 D:

“It is quite clear from the above authorities that the power of a Court to order execution of its own judgment despite the noting of an appeal is founded in the common law doctrine of inherent jurisdiction.  It is trite that only superior courts enjoy inherent jurisdiction.  In this country, these are the High Court and the Supreme Court.  Courts created by statute do not have inherent jurisdiction and consequently do not have power to order execution of their judgment unless such jurisdiction is conferred on them by statute.”

In this case, the award by the Arbitrator was registered with the High Court on 11th July 2013.  It became and is a judgment of that Court.  Is the Labour Court in a position to interfere with a High Court order?  From a reading of case law and provisions of the Labour Act and the Rules, I think not.  The learned Judge in the Dhlodhlo case (supra) had this to say on page 7 of the judgment:

“As the Applicant rightly argues if a judge cannot vary, or alter (or set aside) an order issued by a judge with parallel jurisdiction, how can it be possible for a judge from a lower court to have the power to stay an order by a court of superior jurisdiction.  I cannot conceive of a situation where a court can lawfully interfere with execution or suspension of a court order issued by a Court of superior jurisdiction to its own.”

The Court identifies itself with the above sentiments and is of the considered view that it does not have jurisdiction to order a stay of execution of a judgment of the High Court since the award by the Arbitrator has mutated into such.  It therefore becomes unnecessary to consider the second issue on whether or not there are prospects of success on appeal.

In the result, the application for stay of execution of the arbitral award of Arbitrator E.F. Chitsa is dismissed.

There is no order as to costs.

Matsikidze & Mucheche, Appellant’s Legal Practitioners

Sande & Associates, Respondent’s Legal Practitioners