Freda Rebecca Gold Mine v V Nyoni and 35 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/813/2016
HARARE, 12 DECEMBER, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/H/813/2016

HARARE, 12 DECEMBER, 2016                                   CASE NO. LC/H/938/14

AND 16 DECEMBER 2016

In the matter between:-

FREDA REBECCA GOLD MINE                                              APPELLANT

AND

V NYONI AND 35 OTHERS                                                   RESPONDENT

Before the Honourable B.T CHIVIZHE: Judge

(IN CHAMBERS)

CHIVIZHE,J:

On the 30th of November 2016 this Court dismissed the application for stay of execution pending appeal filed by the Applicant. The Applicant having through a letter dated 6th of December, 2016 requested for the reasons for the decision the following is the reason:

The Applicant filed a chamber application for stay of execution pending appeal on the 22nd of October 2016. The application was premised on the provisions in section 92E (3) of the Labour Act (Chapter 28:01). The basis of the application as outlined in Applicant’s affidavit was that in 2011, the Respondents had instituted proceedings against the Applicant. Upon failure to conciliate the matter was subsequently referred to compulsory arbitration. The Arbitrator then granted an award in favour of the Respondents. The Applicant not satisfied then appealed to this court.

On the 9th of September 2016 this Court handed down a judgement dismissing the Applicant’s appeal. The Applicant still dissatisfied intended to appeal that decision. The Applicant had therefore filed an application for leave to appeal under case number LC/H/APP/901/16.  The application was still pending before this Court at the material time the file was referred to me.

It was Applicant’s further submission was that pending the determination of the application for leave to appeal this Court should grant it a stay of execution. This was necessary for the following reasons; firstly that it had good prospects of success on appeal at the Supreme Court; secondly should the Respondents be allowed to execute and the Applicant’s appeal succeed thereafter the Applicant would be unable to recover anything from the Respondents who are basically men of straw.  On the other hand if the court was to grant the application and execution stayed Respondents were likely to recover whatever amounts were due to them. On this basis the Applicant was seeking for stay of execution to be granted. The application was not opposed.

The court after considering submissions dismissed the application for stay of execution.  It was clear to me that the application for stay being premised on section 92E (3) of the Labour Act (Chapter 28:01), was clearly improperly before the Court. Section 92E (3) of the Labour Act (Chapter 28:01) relied upon gives this Court power to grant suspension order where an appeal is intended to be made to the Labour Court against a decision by the Arbitrator. The section reads as follows;

92E      Appeals to the Labour Court generally

“(1)..................

(2)..................

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

The section thus clearly relates to appeals to the Labour Court and not appeals to the Supreme Court. The section does not apply where an appeal is intended to be filed in the Supreme Court against the decision of the Labour Court. It was for this reason I dismissed the application.