Mashonaland Tobacco Company v Jackson Sabhuku Muganda

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/71/2014
HARARE, 20 NOVEMBER 2013
CASE NO. LC/H/71/2014
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IN THE LABOUR COURT OF ZIMBABWE        JUDGMENT NO. LC/H/71/2014

HARARE, 20 NOVEMBER 2013	    		     	     CASE NO. LC/H/668/13

AND 14 FEBRUARY 2014

In the matter between:-

MASHONALAND TOBACCO COMPANY				Applicant

And

JACKSON SABHUKU MUGANDA					Respondents

Before Honourable R. Manyangadze, J

For Applicant 		-	Mr. G. Makings (Legal Practitioner)

Respondent		-	Mr. L. Zinyengere (Legal Practitioner)

MANYANGADZE, J:

This is an application for stay of execution arising out of an arbitral award dated 9 August 2013, which ordered Applicant to reinstate the Respondent or pay him damages in lieu of reinstatement.

The Applicant lodged an appeal against the arbitral award on 5 September 2013.  It now seeks to have execution of the arbitral award stayed pending the determination of the appeal.

The basis of the application is set out in Applicant’s Founding Affidavit.  Applicant argues that it is no longer possible to reinstate the Respondent, who was a probationary employee, since his post has now been filled by someone else.  Applicant also argues that if the appeal is successful, it will be very difficult for it to recover any monies that may have been paid in damages to the Respondent.

Another point raised by the Applicant, which needs to be dealt with from the outset, is its averment that an arbitral award emanating from compulsory arbitration is automatically suspended pending an appeal.  This is not a correct exposition of the law. Section 92 E (2) is very clear on this issue.  An appeal to the Labour Court,

“shall not have the effect of suspending the determination or decision appealed against.”

In labour matters, this legislative provision has reversed the common law position in terms of which an appeal automatically suspends execution of the decision appealed against.  The law, as provided for in the Labour Act as indicated, has not in any way been amended.  It is still being consistently followed, thus any party affected by a decision they are appealing against must seek interim relief by way of stay of execution of such decision.

What now needs to be determined is whether Applicant has made out a case for the granting of the interim relief it seeks.

The requirements for an application of this nature were well set out in the cases of South Cape Corporation (Pvt) Ltd v Engineering Management Services (Pvt) 1979 (3) SA 534 and Zimbabwe Open University v (1) Gideon Magaramombe (2) Deputy Sheriff Harare N.O. S.C. 20/12.

These can be summarized as:

Whether or not applicant has prospects of success on appeal.

Whether or not the applicant will suffer irreparable harm if execution is carried out.

The balance of convenience.

A careful examination of Applicant’s submissions, both written and oral, shows that the point on prospects of success has not been addressed.

The Respondent, inter alia raised this point.  It was in fact, the main issue in Respondent’s opposing papers, and his submissions during the hearing.  It was contended, on behalf of the Respondent, that there is no mention whatsoever, in Applicant’s submissions, of prospects of success on appeal.  The application cannot be granted simply because Applicant has made a prayer for the relief.  It is encumbent upon it to lay out at least the basic facts upon which the court should make an informed decision.

Given the averments in Respondent’s submissions, this was a fundamental issue Applicant was supposed to address the court on.  The averments were that Respondent was hurriedly summoned to a meeting, presented with a list of accusations, and immediately thereafter served with a dismissal letter.  He was  dismissed forthwith.  Although it would be up to the appeal court to determine the correctness or otherwise of such dismissal, the court seized with the application for interim relief must be persuaded that there are prospects of success on appeal.  The application is silent on this essential issue.  Even after it was highlighted during oral submissions, Applicant’s response did not touch on it.

Depending on the facts of the matter, the question of prospects of success can be decisive.  In other cases, the question of irreparable harm can also be decisive.  Each case turns on its merits, having regard to the facts and the arguments presented.

However, for the court to determine which factor is most decisive, in a given case, the submissions made must inform its decision.  This is where Appellant’s case suffers.  No submissions have been made to rebut Respondent’s assertion that there are no prospects of success on appeal.

There is therefore a serious gap in the application, in that one of the essential requirements has not received attention at all in the Applicant’s submissions.  In the circumstances, the Applicant has not made out a case for the relief it seeks.  It is accordingly ordered that:

The application for stay of execution pending appeal be and is hereby dismissed.

Each party shall bear its own costs.

G. Makings – applicant’s legal practitioners

Mutumbwa Mugabe and Partners – respondent’s legal practitioners