City of Harare v Gift Mubaiwa and Erick Jena

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/35/2013
HELD IN HARARE, FEBRUARY 11, 2013
CASE NO. LC/H/125/12
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/35/2013

HELD IN HARARE, FEBRUARY 11, 2013		CASE NO. LC/H/125/12

In the Matter Between

CITY OF HARARE					       	APPELLANT

And

GIFT MUBAIWA				       		1ST RESPONDENT

ERICK JENA							2ND RESPONDENT

Before The Honourable E. Makamure         : President

FOR THE APPELLANT     		: Mrs R.P. Chimhenga

FOR BOTH RESPONDENTS  	: Mr V. Mazhetese (Legal Practitioner)

MAKAMURE E.,

This is an appeal against an award made by an arbitrator sitting at Harare.  The award was handed down on 27 January 2012.

The appellant did not apply for the suspension of the operation of the award being appealed against pending the finalization of the appeal.

The respondents have now raised a point in limine.  Mr Mazhetese who appears on behalf of the respondents argued that the appellant has approached this Court with ‘dirty hands’.  This is so Mr Mazhetese argued, because the Labour Act Chapter 28:01 (The Act) stipulates that an appeal against an award does not suspend the operation of the award appealed against.  The appellant has not complied with the arbitral award.  Mr Mazhetese submitted that under the circumstances the appeal is not properly before the Court and for that reason the appeal should be dismissed.  Mr Mazhetese therefore prayed for dismissal of the appeal.

Mrs Chimhenga who appeared on behalf of the respondent argued that the High Court altered the statutory position.  In support of her argument Mrs Chimhenga referred the Court to the case of Sibangalizwe Dhlodhlo v Deputy Sheriff for Marondera, Kantor and Immerman and Watershed College HH76/2011 (Dhlodhlo).  In the Dhlodhlo case Gowora J. (as she then was) held that an appeal against an arbitral award suspends the operation of the award.  For that reason Mrs Chimhenga submitted that the matter is properly before the Court.

Section 92E(2) states:

“2. An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.”

It is clear that the common law position wherein ordinarily an appeal would suspend the operation of an award being appealed against, has been altered by statute.  Had the statute been silent, clearly the common law position would hold.  Further in a later High Court judgment of:

Kingdom Bank Workers Committee vs Kingdom Bank Financial Holdings HH302/2011 the High Court (Patel J.) held as follows @ page 5 of the cyclostyled judgment:

“The common law presumption against the operation and enforceability of judgments appealed against has been explicitly ousted by Section 92E in the case of arbitral awards rendered under section 98.”

I am in respectful agreement with what the Learned Judge held in the Kingdom Bank Workers Committee case (above).  The appellant in the present matter has not complied with the arbitral award in question.  For that reason the appeal is not properly before this Court.  In the circumstances the appeal fails.  Accordingly, it is ordered that the appeal be and is hereby dismissed.

Legal Division of The Appellant, Representatives for the Appellant.

J. Mambara and Partners, Legal Practitioners for both Respondents.