Innscor Africa Limited t/a Spar Retail v Tarisai Kuzamba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/230/2014
HARARE, 13 SEPTEMBER 2013, 28
CASE NO LC/H/464/2012
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/230/2014

HARARE, 13 SEPTEMBER 2013, 28		CASE NO LC/H/464/2012

JANUARY 2014 & 11 APRIL 2014

In the matter between:-

INNSCOR AFRICA LIMITED					APPLICANT

t/a SPAR RETAIL

Versus

TARISAI KUZAMBA						RESPONDENT

Before The Honourable E Makamure J

For the Applicant		A Mugandiwa (Legal Practitioner)

For the Respondent       	Ms M Magorimbo (Legal Practitioner)

MAKAMURE J:

This is an application for leave to appeal to the Supreme Court against a judgment of this court.

This court in Judgment No LC/H/111/2013 ruled that the operation of an award by an arbitrator must be suspended pending the determination of an appeal against it. This is provided for in section 92E(2)and(3) of The Labour Act Chapter 28:01 (The Act).

The essence of the provisions of section 92E of The Act is to alter the common law position where the noting of an appeal suspends the operation of the order or judgement appealed against. This is meant to facilitate expeditious resolution of labour disputes.

By enacting such provisions the Legislature protects both parties. If for example, a party, say the employer, as in the present matter is serious with an appeal and not simply trying to buy time, they will apply for the suspension of the operation of the award as provided for in The Act. Appealing against an award before complying with it frustrates an employee who may be indigent. This is unfair and unjust. Failure to apply for the suspension of an award and at the same time appealing gives the impression that a party is simply bent on frustrating an employee. Clearly an employer cannot “have their cake and eat it”. The Act provides that an appeal does not suspend the operation of an award appealed against. So either the judgement is enforced or its operation is suspended while the appeal is being determined.  Where a party appealing chooses not to comply with that award, this is an exhibition of a very casual attitude towards the Labour Court.This cannot be condoned. As noted earlier, both parties must get a remedy from the same Act. If an employer will not comply with an award because they are appealing, then they must have the operation of the award suspended. If they appear before this court without having complied, then they are not properly before the court. (See Kingdom Bank Workers Committee v Kingdom Bank Financial Holdings HH-302-11.) This Court has on numerous occasions stated that parties must comply with the provisions of The Act (and The Rules S I 59/06). (See Christopher Chiwara v CMED LC/H/219/2012; John Madanhi v Ministry of Education LC/H/77/2012; Trevor Wicks v Cottco LC/H/200/2012).

In AssociatedNewspapers (Pvt) Ltd v Minister of State for InformationSC-20-03, The Honourable CHIEF JUSTICE CHIDYAUSIKU had this to say:

“Thus the principle that a citizen who disputes the validity of a law must obey it first and argue afterwards is founded on sound authority and practical common sense. The applicant’s contention that it is not bound by a law it considers unconstitutional is simply untenable. A situation where citizens are bound only by those laws they consider constitutional is a recipe for chaos and a total breakdown of the rule of law.”

I respectfully associate myself with what the Supreme Court stated above. While the subject under consideration here may not be what the Supreme Court was dealing with, the point that I am making is that the provisions of both The Act and the Rules must be observed.

It must always be borne in mind that labour matters are concerned with a person’s basic human rights – food and shelter as a result of their right to work. It appears rather unfortunate that employers particularly, approach this court before they have complied with an arbitral award they appeal against. That amounts to flagrant disregard of the provisions of the Act. This can also be interpreted as an insensitive or reckless attitude towards the plight of the worker.

It is the constitutional right of every Zimbabwean to approach this court for relief. However approaching the Labour Court simply because it is one’s right to do so without complying with laws and rules which in themselves are consistent with the Constitution amounts to an abuse of process.This cannot be condoned.

In casu the appellant approached this court before complying with the award appealed against. The appellant has not sought to have the award suspended.

As for the grounds of appeal to the Supreme Court, they raise the same issues which were dealt with by this Court which amount to factual findings. It is a fact that the applicant did not comply with provisions of The Act. This Court is of the view that where either rules of procedure or provisions of The Act have not been followed, a different Court will not condone such non-compliance. Accordingly the leave to appeal to the Supreme Court cannot be granted.

Accordingly it is ordered that the application for leave to appeal to the Supreme Court be and is hereby dismissed with costs.

Wintertons, applicant’s legal practitioners

Hogwe, Dzimiri& Partners, respondent’s legal practitioners