M & M Fuels (Pvt) Ltd v Sylvester Chakala

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/205/2014
HARARE, 27 MARCH 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/205/2014

HARARE, 27 MARCH 2014		           	        		           CASE NO. LC/H/64/14

& 11TH APRIL 2014

In the matter between:-

M & M FUELS (PVT) LTD					Applicant

And

SYLVERSTER CHAKALA					Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		Mr. R. Zinhema (Legal Practitioner)

For Respondent		Mr. Guteni (Trade Unionist)

MAXWELL J:

At the hearing of this matter I granted the application and indicated that reasons would follow.  These are they.

This is an application in terms of Section 92E (3) of the Labour Act [Chapter 28:01] for stay of execution of an arbitral award in favour of the Respondent.  The award was made on 16 August 2013 and was quantified on 10 January 2014.  Applicant noted an appeal against the award of 16 August 2013 on the 2nd of September 2013.  The appeal is yet to be heard.  Applicant also noted an appeal against the award of 10 January 2014 on the 24 January 2014.  That appeal is also yet to be heard.  On 29 January 2014 Applicant filed this application fearing that Respondent would register the award and execute on it.

On 13 February 2014 Respondent applied for the registration of the award under reference number HC 1172/14.  There is a real possibility that the award will be registered and executed before the appeals are heard.

The factors to be taken into account in considering the grant of interim relief were set out in the case of Zimbabwe Open University v Gideon Magoramombe and Another SC 20/12.

Chief Justice Chidyausiku outlined these as:

“(1)	Whether or not the party seeking the relief has a prima facie right ….. to stay the execution ….. pending the determination of the appeal.

(2)	 Whether or not the applicant ….. will suffer irreparable harm if execution of the arbitral award is not stayed and the appeal succeeds, and

(3)	The balance of convenience.”

The Applicant is empowered by Section 92E (3) of the Labour Act [Chapter 28:01] to approach this Court for interim relief.  The said section provides that;

“Pending the determination of an appeal the Labour Court may make such interim determination on the matter as the justice of the case requires.”

The Applicant has submitted that financial prejudice may result if execution of the award is allowed to go through before determination of the appeal and if the appeal is subsequently upheld.  Respondent may not be in a financial position to pay back the Applicant.  I do not find these fears to be unreasonable and there is a probability that irreparable harm may result.

The order sought by the Applicant is only being sought in the interim.  If the Applicant’s appeal fails the Respondent can always proceed to execute on the arbitral award.  The balance of convenience therefore favours the granting of interim relief.

For these reasons I granted the application.

According it is ordered that

The execution of the arbitral awards handed down on 16 August 2013 and 10 January 2014 be and is hereby stayed pending the hearing of the appeals.

Madzivanzira & Associates, Appellant’s legal practitioners