Diggleford School SDA v Robert Machokoto & 19 Others & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/758/2014
HARARE, 14 OCTOBER 2014
CASE NO. LC/H/758/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/758/2014

HARARE, 14 OCTOBER 2014 	 		     	     CASE NO. LC/H/731/13

& 7TH NOVEMBER 2014

In the matter between:-

DIGGLEFORD SCHOOL SDA					Applicant

And

ROBERT MACHOKOTO & 19 OTHERS 			1st Respondent

And

HONOURABLE N.K. NHIMBA					2nd Respondent

And

ZIMBABWE EDUCATION SCIENTIFIC SOCIAL		3rd Respondent

CULTURE WORKERS UNION

Before Honourable R. Manyangadze, J:

For Applicant		-	T.G. Mboko (Legal Practitioner)

For Respondent		-	S. Nyagura (Legal Practitioner)

MANYANGADZE, J:

This is an application for stay of execution of an arbitral award handed down by Honourable N.K. Nhimba on 14 August 2013.  The award nullified the short time work implemented by the applicant from 1 September 2011 to May 2013.  The award also ordered payment of amounts owed to the respondents as a result of reduced salaries paid during implementation of short time work.

The applicant appealed to this court against the arbitral award.  The Notice of Appeal was filed on 20 September 2013.  The applicant also filed the present application for stay of execution of the arbitral award, pending determination of the said appeal.

The requirements for an application of this nature are well settled.  The court has been referred to a number of cases by both parties, wherein the requirements were set out.  Notable among the cases cited are those of;

South Cape Corporation (Pvt) Ltd v Engineering Management Services (Pvt) Ltd 1977 (3) SA534

Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67.

Zimbabwe Open University v Gideon Magaramombe SC-20-2012.

The factors considered include;

the possibility of irreparable harm to the applicant if execution is carried out.

The possibility of irreparable harm to the respondent if execution is stayed.

The prospects of success on appeal.

The balance of convenience.

Before looking into the applicability of these factors, it is necessary to deal with a point that was raised by the respondents.  It is to the effect that this court is not empowered to deal with an application for stay of execution of an arbitral award.  The respondents premised this contention on Rule 34 of the Labour Court Rules, Statutory Instrument 59 of 2006 (the Rules).

It was further contended, on behalf of the respondents, that this court can only entertain an application for interim relief under Section 92E of the Labour Act [Chapter 28:01] (the Act).

Rule 34 is specific to determinations made and registered in terms of Section 92B (3) of the Act.  It is providing for the relief of stay of execution within the context of determinations of the Labour Court, registered in terms of Section 92B (3) of the Act.

As for determinations emanating from arbitration, interim relief is provided for in Section 92E (3) of the Act.  Stay of execution is a form of interim relief.  What applicant is seeking is clearly within the purview of Section 92E (3) of the Act.  The term interim relief is broader than stay of execution.  It includes stay of execution. It does not exclude it, as respondents’ counsel seems to suggest.

Thus, the provision of the remedy of stay of execution under Rule 34, does not exclude a similar remedy under Section 92E (3).  What differs is the context within which the remedy is sought.  I am therefore unable to uphold respondents’ contention that the application for stay of execution is not properly before the court.

I must now determine whether the application meets the requirements as set out in the cases.

On the potentiality of irreparable harm, the applicant averred that the respondents were awarded an amount of $54 000,00.  Relying on the case of Zimbabwe Open University, supra, it contended that the respondents would not be able to reimburse such an mount if applicant succeeds in its appeal.

A perusal of the arbitral award shows that this was the figure the respondents were claiming in respect of under payment of wages.  It is the total sum of the various amounts claimed by the individual respondents.  The total figure is US$54 514,00.

A careful reading of the award shows that this claim was not granted.  The reason the arbitrator gave for not granting the claim was that the wages were not yet registered under the Collective Bargaining Agreement in terms of which they were being claimed.  What this means is that that part of the arbitral award is not yet operational, until the wages payable are properly determined.

The claim the arbitrator granted was the one relatiing to short time work. In respect of that claim, he ordered that the parties quantify the amounts payable and come up with a payment plan. The parties will only approach the arbitrator for quantification if they fail to agree.  It is therefore not correct to say that an order for the payment of $54 514,00 was granted.

In the light of this, it seems to me the apprehension of irreparable harm occurring to the applicant is not well founded.  The respondents’ claim, it has been pointed out, was granted in part only.  The part that was granted is allowing the parties to negotiate the quantum payable and even come up with a payment plan.  It is only when all that fails, that an arbitral order for quantification may be sought.  In the circumstances, I find that the fear of irreparable harm has not been satisfactorily established.

On the prospects of success, it is noted that the applicant is appealing against a default judgment.  The respondents contended that the appeal is likely to fail on that basis.  The respondents averred that the appropriate remedy in the circumstances is an application for rescission of the default judgment.

It is not in dispute there was no appearance for the applicant at the arbitration hearing. Not even written submissions were made available to the arbitrator.  The arbitrator based his decision on the submissions from one party, the respondents.  Even if the arbitrator came up with a reasoned judgment, based on submissions from the respondents, it essentially remains a default judgment.  As such, it is not appealable.

In this regard, the remarks of the Supreme Court in Zvinavashe vs Ndhlovu SC 40/06, are instructive.  The Court stated that:

“The defining feature or essence of a judgment granted after a party fails to appear is the “default” of the absent party, that is his failure to do what he ought to have done …..

The consideration by the Judge a quo of the merits of the case, and the giving of his reasons for judgment, therefore had no effect on the status of the judgment given, which remained that of a default judgment …

As already been explained, that decision remained a default judgment whose setting aside could only follow a successful application for its rescission.

For the avoidance of doubt, it is declared that the giving of reasons for the default judgment in question by the court a quo, was unnecessary and consequently, of no force or effect.  It does not convert the default judgment into a judgment on the merits.”

The applicant’s appeal against a default judgment, in my view, is a fundamental issue that seriously diminishes its prospects of success on appeal.

Taking all factors into account, the applicant has not made out a sufficient case for the granting of its application for stay of execution.  It is accordingly ordered that:

The application for stay of execution be and is hereby dismissed.

The applicant shall bear the respondents’ costs.

DONSA-NKOMO & MUTANGI, Applicant’s legal practitioners

MATSIKIDZE & MUCHECHE, Respondent’s legal practitioners