Lunar Chickens v Matenga Hove

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/658/13
HELD AT HARARE ON 18TH NOVEMBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/658/13

HELD AT HARARE ON 18TH NOVEMBER 2013        CASE NO LC/H/546/13

AND 6 DECEMBER 2013

In the matter between:-

LUNAR CHICKENS					Applicant

And

MATIVENGA HOVE				Respondent

Before The Honourable Justice L.M. Murasi

For Applicant		Ms B Machanzi (Legal Practitioner)

For Respondent		Mr M Hungwe (Legal Practitioner)

MURASI, J

At the beginning of the hearing I dismissed the points in limine raised by both parties and stated that the reasons would be given in the main judgment.  I will therefore proceed to deal with the points in limine in the order they were raised.

Respondent stated that Applicant had not complied with Rule 19 (1) (a) in that no Heads of Argument had been filed after Respondent had filed the Notice of Response.  Respondent further stated that this non-compliance with the Rules meant that Applicant was barred as the use of the word “shall” by the legislature was peremptory.  Respondent further averred that this was a situation the Court could not condone.

Applicant, in response, conceded that the Heads of Argument were not filed timeously.  Applicant alleged that the reason was that after filing the Notice of Appeal, Applicant was involved in negotiations with Respondent in order to resolve the matter.  The filing of the Heads of Argument was therefore held in abeyance in order to give room to these negotiations.  Applicant had later on filed the Heads of Argument with an application for condonation for late noting of appeal.  Applicant indicated that there was no wilfulness on its part and was therefore making application for the leave of the Court to admit the Heads of Argument as these were filed within 3 days.  Applicant also raised a point in limine in that Respondent had not complied with Rule 15 (2) (a) in that the Notice of Response was not in Form LC2 as prescribed and should therefore be expunged as it was defective and thus a nullity.  This meant that all subsequent documents could not be admitted as Respondent was not properly before the Court.

The upholding of both points in limine would have meant that there was no party before the court.  This would have meant that the application before the Court would have been struck off the roll and fresh proceedings commenced. The Court was of the view that this would not be in line with the spirit and intention of the legislature.  Section 2 A (1) (f) of the Labour Act provides:

“The purpose of this Act is to advance social justice and democracy

in the workplace by –

....

(f)  securing the just, effective and expeditious resolution of  disputes and unfair labour practices.”

Therefore, allowing both parties to “score points” against each at the expanse of the issue which was before the Court would not be in furthermore of the objectives of the Labour Act.  In this view the Court should be alive to the fact that it should not be used by practitioners as a forum to rely on technical and academic points which in the end prevent the court from adjudicating upon the real issues. This was said in Rex v Hepworth 1928 AD 265 at 277 that:

“a criminal trial is not a game one side is entitled to claim the benefits of any omission or mistake made by the other side and a Judge’s position in a criminal trial is not merely that of an umpire to see that the rules of the game are observed by both sides.  A Judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure, but to see that justice is done.”

Though the sentiments express above were in a criminal trial, this Court is of the view that they apply with equal force to civil trials.  The Court also takes into consideration the provisions of Rule 12 and Rule 26 regarding the need to ensure generally that there is a fair resolution on matters and just handling of the proceedings.  The Court also notes that the application for stay of proceedings is necessitated by the statutory provisions.  In reinforcing this view Garwe JA had this to say in Longman Zimbabwe (Pvt) Ltd v Midzi & Others  2008 (1) ZLR 198 (S) at 206 B:

“...  the noting of an appeal against the judgment or order of (an inferior) Court, tribunal or other authority, in the absence of a statutory provision to that effect, does not have the effect of suspending the operation of the judgment or order that is sought to be appealed against.”

The Court ruled that the documents from both parties were deemed properly filed before the Court.  Neither party alleges that it had been prejudiced by the non-compliance with the Rules and both parties had indeed filed their adequate responses to the issues raised in the papers.  Both parties, after the ruling on the points in limine were comfortable in proceeding with the main issue.

Applicant largely abided by submissions made in the Heads of Argument.  Applicant seeks a stay of execution of the arbitral award pending the determination of the appeal  Applicant avers that there is nothing to stop Respondent from executing the award were the Appeal Court to rule in his favour.  However, Applicant contended, were the execution to go ahead and the ruling on appeal went against Respondent, Applicant would find it difficult to recover what it would have paid to Respondent.  There would be serious prejudice to Applicant as the amount involved was some US$40000.00.  Applicant further stated that there were prospects of success on appeal as shown in the Heads of Argument.  Applicant stated that the balance of hardship was in its favour.

Respondent, on the other hand, stated that the legislature had put in place section 92 (E) to protect workers.  It was submitted by Respondent that there were no prospects of success on appeal as the Arbitrator had clearly articulated the issues.  Respondent’s Counsel further stated that Applicant had partially complied with the award by paying arrear salaries and should therefore go ahead and comply with the rest of the order.

In considering this matter, the Court should have regard to the fact that there must be finality in litigation, that the party making the application has demonstrated that potential harm exists and lastly, that there are prospects of success on appeal.  In other words, it must be a bona fide application.

The Court will consider the prospects of success on appeal first.  Applicant states that the Arbitrator misdirected herself on the issue of jurisdiction.  Applicant further states that the matter was not properly before her and she should have declined to hear it so that it could be referred to the appropriate authority for determination.  The Court is of the view that this is a fairly arguable issue on appeal as the relevant law allowing appeals of this nature will need to be considered by the appellate court.  Applicant also raised the issue of the findings by the Arbitrator of the existence of bias as another misdirection.  This Court is of the view that this is arguable on appeal.

As to the bona fides of the application, Applicant has stated that it has already paid Respondent his arrear salaries as it did not dispute that aspect of the award.  It is with the other aspects of the award that Applicant seeks a reversal of the judgment.  The Court finds this a plausible explanation in the circumstances given the fact that Applicant has partially complied with the order and was at one time engaged in discussions with Respondent in order to resolve the issue.  The Court is also of the view that the Applicant has demonstrated the existence of potential irreparable harm if the execution in the sum of USD$40000.00 was to be carried out.  On the other hand, Respondent’s Counsel submitted that Respondent was “not a man of straw”  and would be in a position to repay the amount if the appeal was not in his favour.  Applicant capitalised on this submission and stated that this showed that Respondent was not in “dire need” of the proceeds of the award and could therefore wait for the final determination of the matter on appeal.

The Court finds that Applicant has a fairly arguable case on appeal and has managed to prove on a balance that it will suffer irreparable harm if the execution of the award was to proceed.  Further, Applicant has demonstrated that this is a bona fide application.

The Court makes the followings order:

The arbitral award by Ms P Chawira dated 10th July 2013 be and is hereby suspended pending determination of the appeal.

Cost to be in the cause.

C Mpame & Associates, Applicant’s Legal Practitioners

Hungwe & Partners, Respondent’s Legal Practitioner