Legacy International School v Miriam Chakabatwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/76/2014
HARARE, 31 JANUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO. LC/H/76/2014

HARARE, 31 JANUARY 2014	    		              CASE NO. LC/H/912/13

AND 14 FEBRUARY 2014

In the matter between:-

LEGACY INTERNATIONAL SCHOOL				Applicant

And

MIRIAM CHAKABATWA						Respondent

Before Honourable L.M. Murasi, Judge

For Applicant 		-	Mr. R. Matsikidze (Legal Practitioner)

For Respondent		-	Mr. A. Marara (Legal Practitioner)

MURASI J:

Applicant employed Respondent at its Legacy International School as an Administrator.  For reasons not disclosed to this Court, Respondent tendered her resignation on 1 February 2013.  Respondent indicated in that letter that she would take her three (3) months’ leave during the resignation period.  On 13 February 2013 Applicant and Respondent made an Agreement on the termination of Respondent’s services.  In addition to what Respondent had stated in her letter of 1 February 2013, the Agreement provided:

“1) …

She takes her outstanding 90 leave days during the resignation period, which will be paid leave.

LIS Agrees to pay her her three months notice pay while she is at home, coming in only to do a handover takeover.”

The matter was brought before the Arbitrator when Respondent had claimed unfair labour practice.  The Arbitrator made the following findings:

"1) The unlawful dismissal claims are without any legal basis hence they are

thrown away.

The Claimant’s resignation from employment is upheld.

The Respondent is ordered to pay the Claimant’s 2 months’ salary as notice pay and the 90 leave days”.

Respondent approached the Arbitrator for quantification when she needed to register the award.  After the quantification process, Applicant made an urgent Chamber Application for stay of execution.  This Court ruled that the application was not urgent, hence this application.

Applicant submits that the execution should be stayed because if this goes ahead, the appeal becomes academic.  Applicant further states that the Arbitrator erred in arriving at the decision he did.  Applicant further avers that on the basis of the grounds of appeal filed with the Court, Applicant has prospects of success.  Respondent, on the other hand, expressed the view that Applicant’s appeal to this Court was misplaced as the findings of fact made by the Arbitrator on whether or not the money was due to Respondent was not a point of law.  Respondent’s Counsel took issue with the fact that Applicant did not appeal against the quantification process and therefore there was no appeal before the Court.  Applicant submitted that it had appealed against the ruling of the Arbitrator, and therefore, by extension, the quantification process.  The Court is inclined to agree with Applicant that it was not required to appeal against the quantification process as that process could not properly be termed an award.  The quantification process flows from the main award.

This Court is being requested to consider whether or not to grant a stay of execution pending the determination of the appeal.  In South Cape Corporation (Pty) Ltd vs. Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) CORBETT JA had this to say at 545 D – F:

“In exercising this discretion (to grant leave to execute pending appeal), the court should in my view, determine what is just and equitable in all the circumstances, and in doing so, would normally have regard, inter alia, to the following factors:

the potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (respondent in the application) if leave to execute were to be granted.

the potentiality of irreparable harm or prejudice being sustained by the respondent or appeal (applicant in the application) if leave to execute was refused.

the prospects of success on appeal including more particularly the question of whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, for example to gain time or harass the other party; and

where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience as the case may be.”

I will deal with each point in turn.  The first is potentiality of irreparable harm or prejudice being sustained.  The Court understands this to mean the absence of practical or legal means to address any prejudice that may occur as a result of the execution.  The Court did not hear Applicant state in as many words that it will suffer irreparable harm or prejudice were the execution to go ahead.  In fact, Applicant concedes that it owes Respondent some two (2) months’ salary which it will pay as soon as Respondent does the handover/takeover.  The Court heard Applicant to state that if the execution were to go ahead, the appeal will merely become academic.  The total amount involved is $3 500-00.  The only amount in despite is $2 100-00, Applicant having conceded that it owes Respondent $1 400-00.  The question is were Applicant to pay $2 100-00 would it suffer an irreparable harm or prejudice to the extent that it would be impractical to recover this amount from Respondent?  The answer to this query must be in the negative.

The second point is whether Respondent would suffer prejudice.  Respondent has an award in her favour.  Part of the money has already been paid.  She is out of employment and needs the money for her daily upkeep.  She might not suffer irreparable harm, but she surely would be prejudiced by not utilizing the money that is due to her especially the $1 400-00 the Applicant concedes it owes her.  Meanwhile, Applicant has not offered to pay this amount into court.

The next point relates to prospects of success.  The Court should point out that Applicant’s Counsel had a difficult time when making submissions on whether the Arbitrator erred in interpreting the Agreement signed by Applicant and Respondent on 13 February 2013.  Clearly, the Agreement refers to payments that are due to Respondent.  Firstly, in respect of her leave days, the Agreement states which will be paid leave: Secondly, in relation to notice pay, that Applicant

‘agrees to pay her her three months notice pay while she is at home’

Applicant has not properly demonstrated to the Court how and where the alleged gross misdirection by the Arbitrator emanated. It is the Court’s view that on the basis of the finding of the Arbitrator on what payments are due to the Respondent, the Applicant’s prospects of success are slim if not non-existent.

The last point the Court needs to determine as pronounced by CORBETT JA is to weigh the balance of hardship and convenience.  As pointed out earlier in this judgment, the Court is of the view that the balance of hardship and convenience falls on the Respondent.

Lastly, the wise words of GUBBAY J (as he then was) in Santam Insurance Co. v Paget (2) 1981 ZLR 132 at 134G – 135B are worth noting:

“… the court enjoys an inherent power, subject to such rules as there are, to control its own process.  It may, therefore, in the exercise of a wide discretion, stay the use of its process of execution where real and substantial justice so demands … The onus rests on the party claiming this type of relief to satisfy the court that injustice would otherwise be caused him or to express the proposition in a different form, of the potentiality of his suffering irreparable harm or prejudice.”

The court is of the view that Applicant has not clearly satisfied the court that an injustice would be caused were this execution to go ahead.

In the result, the application is accordingly dismissed.

There is no order as to costs.

Matsikidze & Mucheche, Applicant’s legal practitioners

Mutamangira & Associates, Respondent’s legal practitioners