Comty Electronics Ribbon World (Pvt) Ltd v Dunmore Nenhowe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/238/2012
HARARE, 31 JAUNARY 2014 &
CASE
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/238/2012

HARARE, 31 JAUNARY 2014 &			  CASE NO LC/H/584/2012

25 APRIL 2014

In the matter between:

COMTY ELECTRONICS RIBBON				APPLICANT

WORLD (PVT) LTD

Versus

DUNMORE NENHOWE					RESPONDENT

MUCHAWA J:

This matter came before me as an application for stay of execution. The record reflects the applicant as Samson Makonde. By consent it was agreed to amend this erroneous citation on the record and court roll so that the applicant is correctly cited as COMTY ELECTRONICS RIBBON WORLD (PVT) LTD. Samson Makondeis only the manager representing applicant.

The applicant submitted that a stay of execution is sought against the execution of an amount of $6 074-00 quantified in favour of respondent following an earlier arbitral award in respondent’s favour. The basis for the application is that appellant has filed an appeal that is pending before this court. It was argued that the appeal raises a point of law and the integrity of the appeal should be maintained. I was pointed to an irregularity in the award wherein the arbitrator ordered the appellant to pay 90 days accrued leave instead of 60 days. Further it was argued that the arbitrator should not have found that the respondent was unfairly dismissed in the face of the mutual agreement tendered. The prospects of success on appeal are rated high.

On the other hand, the respondent opposed the application for stay of execution.

It was submitted that applicant has no chances of success on appeal as he has not raised any point of law on appeal and is therefore not in compliance with section 98 (10) of the Labour Act [Cap 28:01].

It was argued further that the misdirection regarding the 90 days leave instead of 60 days leave has not raised before the arbitrator and cannot be raised now especially as it does not appear in the grounds of appeal.

The respondent also argued that the applicant’s grounds of appeal are not in compliance with the rules as they do not have a prayer and it is unclear what the court is being asked to do.

The applicant was said to have only lodged an appeal on the award of 10 July 2012 and none on the quantification award of 5 February 2014. In this respect it was argued that there was no appeal before the court to warrant a stay of execution.

In short it was argued that the applicant has no chances of success on appeal and the respondent would be unduly inconvenienced by a stay of execution which is just meant to buy time.

I wish to deal with the question raised by the respondent that there is no prayer to the appeal. The applicant filed his appeal using Form L C 3 and in the relevant section indicated that he wishes the Labour Court to, among other things, reverse or set aside the decision, order or action appealed against. Where the grounds of appeal are to be filled in, the respondent makes reference to an attachment marked Annexure 1. It is this Annexure 1 which sets out the grounds of appeal and has no prayer.

It is my opinion that the prayer is very clear in the relevant form and the annexure should be read into the form. In this respect the appeal is therefore in compliance with the Rules of this court.

I also find that the outcome of the appeal filed before this court has an effect on both arbitral awards of 10 July 2012 and 5 February 2014.

I now consider the prospects of success of the appeal to see whether a stay of execution is warranted. The grounds of appeal are asking the court to go into factual issues regarding whether or not the respondent was paid terminal benefits twice and authenticity or otherwise of the tendered mutual termination agreement. Further the court is being asked to make a finding on whether in the circumstances, the contract was mutually terminated. I find that in this regard no point of law is being raised for consideration by this court and consequently there are no chances of success on appeal.

The applicant’s case is not helped by raising a misdirection on facts for the first time in this application regarding the misconstruing of the number of leave days. It was not raised and considered by the arbitrator and will not succeed before this court now.

I therefore find that the respondent will be unduly prejudiced by the granting of the stay of execution where the appeal has no chances of success. (See Mfuni v Mutiti 2002 (2) ZLR 490 (H).

The application for stay of execution is therefore dismissed with costs.

Mugwadi& Associates, respondent’s legal practitioners