Birria Investments v Isiah Mutakura

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/130/14
HELD AT HARARE ON 16th JANUARY, 2014
CASE NO. LC/H/400/13
AND 14th MARCH, 2014
JUDGMENT NO. LC/H/130/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/130/14

HELD AT HARARE ON 16th JANUARY, 2014   CASE NO. LC/H/400/13

AND 14th MARCH, 2014

In the matter between:-

BIRRIA INVESTMENTS						Appellant

And

ISIAH MUTAKURA							Respondent

Before the Honourable G. Mhuri, Judge

For Appellant	: B. Maruva(Legal Practitioner)

For Respondent: S. Chako (Legal Practitioner)

MHURI J.:

Appellant having been aggrieved by an arbitral award noted an appeal to this court in terms of Section 98(10) of the Labour Act [Chapter 28:01] the Act.

On the date of the hearing of the appeal, Respondent raised a point in limine to the effect that the appeal was improperly before the Court as Appellant did not comply with the award or apply for interim relief in terms of Section 92 E (3) of the Act.  It was submitted that Appellant has approached the Court with dirty hands and should therefore not expect to be protected by the law as such the appeal should not be entertained until the award is complied with.

Respondent relied on the following cases to substantiate its argument.

AIR ZIMBABWE (PRIVATE) LIMIMTED V NATIONAL AIRWAYS WORKERS UNION AND 2 OTHERS LC/H/147/10.

FIDELITY LIFE ASSURANCE V SAMSON CHISAMBA LC/H/35/2010.

CITY OF MASVINGO V. DR. N. BALOYI LC/MS/01/09.

It was Appellant’s submission that the point in limine ought to be dismissed.  He relied on Section 85(2) of the Constitution which reads:-

“The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection (1)”

and the case of

SIBANGALIZWE DLODLO

V

DEPUTY SHERIFF OF MARONDERA

SHERIFF OF ZIMBABWE

WATERSHED COLLEGE

KANTOR AND IMMERMAN

HH 76/2011.

I agree with Patel J’s; (as he then was) finding in the case of

KINGDOM BANK WORKERS COMMITTEE V KINGDOM BANK FINANCIAL HOLDINGS HH 302/2011

that an appeal against an award under Section 98 (10) is an appeal in terms of the Act within the meaning of section 92E and, as such, it does not have the effect of suspending the award in question.

I totally associate myself with his analysis and reasoning captured at page 5 of the cyclostyled judgment wherein he disagreed with Gowora J’s (as she then was) ruling on the issue in Dlodhlo’s case and stated that

“Section 98 regulates references to compulsory arbitration under Parts XI and XII of the Labour Act.  Section 98(10) provides that:

“An appeal on a question of law shall lie 	to the Labour Court from any decision of an arbitrator appointed in terms of this section.

Section 92E(1) is very broadly framed to encompass appeals in terms of this Act.

The ambit of appeals which do not suspend the decisions appealed against is now considerably wider than the category of appeals delineated under the repealed Section 97.  It is abundantly clear that Parliament intended to modify the common law position generally.  It is equally clear that an appeal against an arbitrator’s decision under section 98(10) is an appeal in terms of the Act.

…the provisions of Section 92E are unambiguous and unequivocal in their scope and effect … they apply to every appeal in terms of the Act, including an appeal under Section 98(10), and they operate to pre empt and preclude the suspension of the decision appealed against.  The common law presumption against the operation and enforceability of judgments appealed against has been explicitly ousted by the section 92E in the case of arbitral awards rendered under section 98”.

In casu it is common cause that Appellant as at the date of hearing of the appeal, had not complied with the award.  Neither had it made an application in terms of Section 92E (3) which states,

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

I find further that Section 85 (2) of the Constitution relied upon by Appellant does not assist it, as it is irrelevant to the issue at hand.  Subsection (2) refers to subsection (1) which entitles a person whose fundamental right or freedom has been or is being infringed to approach a court.  This section should be read in its context and does not in my view cover situations such as the one in casu.

To that end I agree with Respondent that the Appellant has approached this court with dirty hands.

Consequently it cannot be heard until it has purged its contempt.

The point in limine is therefore upheld.  To that end it is ordered that the appeal be and is hereby struck off.

Mugwadi and Associates–Appellant’s Legal Practitioners

Mudambanuki and Associates–Respondent’s Legal Practitioner