City of Harare v Tirivavi Makotose

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/71/16
HELD AT HARARE 4TH FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/71/16

HELD AT HARARE 4TH FEBRUARY 2016			CASE NO LC/H/APP/1327/15

& 19TH FEBRAURY 2016

In the matter between:

CITY OF HARARE				Applicant

And

TIRIVAVI MAKOTOSE				Respondent

Before The Honourable B S Chidziva, Judge

For Applicant			Ms A Zvoutete (Principal Legal Officer)

For Respondent		Mr S Banda (Legal Practitioner)

CHIDZIVA, J:

This is an application for stay of execution of the arbitral award pending appeal.  The arbitrator ruled in respondent’s favour and held that respondent was unlawfully dismissed and ordered the reinstatement of respondent.

The brief background of this matter is that respondent was charged with theft of six (6) fuel coupons.  He was found guilty and dismissed from employment.

The applicant in its application stated that it has prospects of success on appeal in that

The arbitrator erred at law in making a legal finding that the applicant had failed to prove theft of the six (6) fuel coupons yet evidence on the record proved the offence on a balance of probabilities.

The arbitrator erred at law by exonerating the respondent of the offence of theft or “any particular offence” yet at the same time he found that the respondent’s conduct was reprehensible.

The arbitrator’s award is so unreasonable and irrational in its defiance of logic so as to constitute a ground of appeal.

The balance of convenience favours the granting of this application.

The respondent in response told the court that the applicant has no prospects of success on appeal because

The grounds of appeal do not raise questions of law but facts

What is in dispute is the particular offence with which respondent was charged with

The appellant preferred wrong charges against the respondent and the facts and

evidence do not prove theft.

In these applications the following factors should be considered

The applicant’s prospects of success on appeal

Absence of an alternative remedy

Well-grounded apprehension of irreparable harm

Balance of convenience

The demands of justice

The respondent has conceded that his actions amounted to misconduct but the

question was the actual offence which he should have been charged with.  In view of this therefore the balance of convenience is in favour of the applicant.  It also follows that the demands of justice are that the matter should run its full course before a party is allowed to execute on a judgment.  This was stated in the case of Ndlovu v Zimbabwe Grain Bag HC 1039/02 as follows

“that it is the practice of these courts to allow litigation to run its full turn before   allowing a party to execute on a judgment, which is still the subject of further litigation  between the parties.   The balance of convenience requires that the respondent be interdicted from executing its judgment until the Supreme Court has heard the appeal in Case No SC-181-00”

The balance of convenience favours the granting of this application.

In the circumstances therefore this court orders as follows;

The application for stay of execution of the arbitral award pending appeal filed under Case No LC/H/877/15 be and is hereby granted.

Each party bears its own costs

J Mambara & Partners, respondent legal practitioners