Mazowe Rural District Council V Zimbabwe Rural District Council Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/348/2024
HARARE
CASE NO LC/H/890/24
In the matter between:-
MAZOWE RURAL DISTRICT COUNCIL APPLICANT
ZIMBABWE RURAL DISTRICT RESPONDENT
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IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/348/2024

HARARE,

CASE NO LC/H/890/24

In the matter between: -

MAZOWE RURAL DISTRICT COUNCIL APPLICANT

ZIMBABWE RURAL DISTRICT COUNCIL WORKERS UNION

RESPONDENT

Before the Honourable Kudya J

For the Applicant    Mavhiringidze (Legal Practitioner)

For the Respondent    Mudzuri (Legal Practitioner)

KUDYA, J:

This is an urgent application for stay of execution in terms of section 92E (3) of the Labour Act Chapter 28:01 as read with Rule 18 Labour Court Rules 2017. The applicant seeks to have stayed an arbitral determination made by Arbitrator Honourable Gadaga on 5 August 2024. The award ruled that applicant employer pays to its employees who are represented by the respondent workers’ Union a total of USD 787 413 and ZIG 1 771 686 as outstanding salaries and allowances. The grant of stay relief is opposed by the respondent Union.

The background to the stay application is that after the arbitrator issued the award being contested, the Union approached the High Court seeking to register the award. The registration application is still pending. After the registration application was filed on 8 August 2024, the applicant on 20 August 2024 filed with the Labour Court an appeal and review against the arbitral award. See LCH 879/24 and LCH 882/24 respectively.

The appeal raises four appeal grounds whilst the review raises 2 grounds. It is the applicant’s contention that it will suffer irreparable harm if execution of the award it is contesting goes ahead pending the appeal and review. It reasons that the matter is urgent in that once execution has been allowed to go ahead the determination of the appeal and the review which are pending in this court would be rendered academic. It hastens to mention that the figures which are being contested are high such that their execution can paralyse its operations. It finally contends that the only remedy available to it is for it to approach this court for stay on an urgent basis as it has done. It concludes therefore that the balance of convenience favours the grant of stay relief.

In opposition to the application the Union raised four points in limine. On the merits plane it opined that the appeal and review applications are not merited and as such should not form a basis for the grant of stay of execution relief.

For completeness of record the Union raises the following points in limine.

1. The founding affidavit filed of record is bad at law as it was deposed to by a person without authority to do so. There is no full Council resolution authorising the Chief executive Officer to depose to the affidavit. On account of the irregular founding papers the application should be dismissed with costs.

2. The application is irregularly made as an urgent application. The court should conclude that it is not urgent and dismiss it with costs.

3. The applicant employer now wants to rely on bank statements demonstrating that it paid the employees yet it did not tender such statements at the arbitral stage. Such is irregular production of evidence. The application should therefore be dismissed on the basis that it is premised on evidence which is intended to be tendered improperly.

4. The employer has not tendered security for costs. It should have done so especially if one notes that it admits owing the employees a total of USD 102 700 worth of food hampers which it prayed at arbitration that it pays over 6 months. The absence of a tender to pay the admitted amount is fatal to the application. The application should be dismissed on account of the absence of security for costs.

On the merits plane, the Union contends that the appeal and review are without merit so stay should be denied.

Both the points in limine and the merits of the application are addressed below:

1) Absence of Resolution
 During the hearing, parties entered into protracted argument over the issue of the Resolution until the Court intervened and advised them that the mischief behind a Resolution is simply to guard against a deponent litigating on a frolic of their own without the requisite authority of the principal. The Court hastened to mention that the subject of resolutions was put to rest in the case of Dube v PSMAS SC-73/19. Dube (Supra) ruled that that once authority has been challenged the party who has been challenged should simply tender the resolution demonstrating that the deponent is not on a frolic of his own. See also Mpofu v ZIMDEF SC-33-24.

To put the matter of the resolution to rest in the instant matter, the applicant was allowed by the Court to furnish same on the IECMS platform by 10 am on 27 August 2024.

In compliance with the Court’s directive the applicant filed in the IECMS system a letter to the Register of the Labour Court stamped 9 August 2024 but filed in the system on 27 August 2024 stating that Liberty Mufandaedza the Chief Executive Officer was empowered to deal with all legal matters of the applicant as per Sec 66 of the Rural District Councils Act Chapter 29.13 as read with section 69 of the same Act and as per Resolution 530 C 469/15. By letter of 27 August 2024 in IECMS respondent challenged the letter of 9 August 2024 stating that this was merely a letter and could not be used as a substitute for the actual Resolution. Later on, the same day, the applicant filed in IECMS Resolution of 25 June 2015 which is a full Council Resolution 530: C469

The Resolution states as follows:

“……Delegation of powers to the Chief Executive Officer to make appeals.

Council resolved that powers be delegated to the Chief Executive Officer to instigate appeals against cases awarded unfavourably to Council……”

This resolution was made when Council was considering the judgement in the case of one Joyce Phiri’s occupation of house No K 22 Tsungubvi. It is clear from the resolution of 25 June 2015 that the Chief Executive Officer was clothed with the powers to litigate on Council’s behalf in all legal matters including the instant matter. The affidavit deposed to by Liberty Mufandaedza was deposed to properly and can competently form the basis of the stay application. The production of Resolution 530:C469 therefore puts to rest the Resolution debate The point being without foundation is therefore dismissed for lack of merit.

2. Urgency


The respondent argued that the application was improperly made as an urgent application. The simple answer to the urgency debate is that once the Court allowed the parties to come before it and argue the matter on an urgent basis it means that the Court was satisfied that matter was urgent. It therefore cannot be open to debate again whether the matter is or is not urgent yet the parties are already before the Court on an urgent basis.

Council risks being made to satisfy an award whose correctness substantively and procedurally has been put into issue by the appeal and review application. Delay in hearing the stay application can render academic the appeal and review. For the above reason the Court is convinced that the matter should be entertained on an urgent basis.

Legal practitioner Chihombe stated clearly in her affidavit of urgency filed of record that there is no other available remedy which her client can resort to pending the determination of the review and the appeal except an urgent application for stay of execution. The court is persuaded by the argument that allowing execution to go ahead and to then later determine the appeal and review may render such determination academic.

The law provides clearly that the stay remedy is available to a party who has an arguable case on appeal or review (my underling)

See Rensburg v Ngirazi and 3 Others MTHC 12/21. Applying for stay relief is not tantamount to asking the Court to stop registration. Registration and stay are two completely different procedures which can be undertaken independent of each other. The registering Court is not interested in the substantive or procedural correctness of an award. Opposition of registration cannot compensate for the request for stay relief. The urgency point is not merited so should fail.

3. Irregular production of bank statements

The Union states that if applicant wanted to tender bank statements it should have done so at the arbitrator. The applicant on the other hand says the full statements were not requested by the arbitrator so it could not provide what was not requested. Applicant hastens to mention that even for purposes of the stay hearing such statements could not be uploaded in IECMS due to their voluminous nature. It will therefore request that it be allowed to tender such from the bar.


The Court takes judicial notice of the pragmatic challenge of uploading voluminous documents in IECMS. Be that as it may the statements do not detract from the arguments to be advanced on appeal and review. Very little turns on the statements as they only show that certain sums of money were deposited into employees’ accounts. They do not demonstrate in exact detail what each amount was for. Such detail could only have been shared had parties sat down together and shown each other how the banked amounts were arrived at. The opportunity to do so was lost as no conciliation was done. It is at the conciliation level where such an exercise could have been carried out but sadly that did not happen. The court is satisfied that the bank statements argument is without merit for the already stated reasons. The point should also fail.

4. Security for costs

It is settled that a party can tender security for costs to ensure that if he/it does not succeed on appeal or review the other party may not be prejudiced pecuniarily. Whilst payment of security for costs is mandatory in the Supreme Court it is discretionary in the Labour Court. See Rule 55(a) Supreme Court Rules SI 80/22 and Rule 39 Labour Court Rules 2017 respectively.

See also Remo Investment Brokers (Pvt) Ltd v Interfin Securities (Pvt) Limited SC 157/14. Since security for costs is discretionary in the Labour Court, the Union cannot use the security for costs argument to have the application for stay dismissed.

Council correctly stated that tender of security for costs is not synonymous with the tender of payment of the admitted sum owing. See Zietsman v Electronic Media Network Limited t/a Multichoice Africa (Pty) Limited & Another (11/07 2008 ZASCA 4.

In the case at hand, whilst it is clear that there is an admitted amount of USD 102 700 owing such cannot be used to close the door for the request of stay relief. If it is just and equitable that the admitted amount be excluded from the stay order such an order can competently be made. The point also lacking in merit should fail.

Having concluded the points in limine what is left is to be decided is the merit of the stay application. This is discussed below:

The applicant prays that stay relief be granted because in its appeal it will demonstrate that

1. Arbitrator wrongly concluded the point in limine where absence of conciliation was challenged by ruling on it as a mere technically and not the bedrock of the matter.


2. Arbitration wrongly concluded that there were no bank statements yet he did not specifically ask for same and same are available for inspection.

3. Arbitrator used wrong formula to award the food hampers amount using USD$150 per hamper yet employees had stated that hamper cost was USD$90 and the employer had through invoices from N Richards shop and Gain Cash and Carry put it at USD80. The USD 150 was therefore a figure plucked from the air mounting to a misdirection at law and vitiating the award.

4. Arbitrator wrongly severed the salary and the allowances award yet the salary payment was done together with the allowances. The severance was therefore bad at law and vitiated the award.

In the review application the Council raised two grounds that is gross irregularity and absence of jurisdiction. It says that absence of conciliation was a gross irregularity. The arbitrator therefore, by extension, lacked the requisite jurisdiction to determine the matter at law. In the result Council prayed that the award be stayed pending the resolution of the appeal and the review.

On the merits plane the Union reasoned against the appeal and the review as follows:

1. Arbitrator was correct to rule that the conciliation argument was a technicality. Since Council had acknowledged receipt of the notification to attend conciliation proceedings it was incumbent on it to attend. The conciliator was right to refer the matter to arbitration on the basis of the Council’s absence at conciliation proceedings.

2. Arbitrator was correct to say that there were no bank statements. He concluded that what had been tendered before him was insufficient for him to conclude that indeed Council had paid as it argued.

3. Arbitrator was correct to use formula of USD 150 per hamper.

4. Severance of salary and allowances was correct as these were separately stated as per the Collective Bargaining Agreement.

In response to the review the Union concluded that the jurisdiction and gross irregularity arguments were technical especially in the face of admitted amounts. It concluded that no good case for stay had been made out so stay had to be refused.

The law on stay of execution in the Labour Court is settled See Rule 41 Labour Court Rules 2017.
 See also **Secretary for Higher and Tertiary Education v College Lecturers Association of Zimbabwe & 14 others. LCH 547/13.** All that the applicant has to make out is that he has an arguable case on appeal or review. He need not prove that his matter will be successful.

In the case at hand, even though four grounds of appeal and two review grounds were set out it was clear from an assessment of all of them that the critical issue crying out for determination is whether the correct procedure was followed in coming up with the award.

The two review grounds can be grossed up into one ground namely that arbitration was predicated upon a non-conciliated matter thus ousting the arbitrator’s jurisdiction. The law is clear that the question of jurisdiction is not a mere technicality but is the bed rock of any matter. See **Chirongoma vs TDG Logistics HCB 6/11.** Once jurisdiction has been queried an adjudicator can not dismiss it lightly as a technicality. Determining a matter in the absence of proper jurisdiction renders all proceedings flowing from the irregular proceedings a nullity.

**See Mc Foy v United Africa Company1961All ER1169(PC)**

In the case at hand, it is clear that the absence of conciliation was put into question but the arbitrator just glossed over it and proceeded to decide the matter on the merits. That was clearly wrong at law. The interim award on record clearly speaks to the fact that the conciliator just jumped the conciliation stage when he realised that Council was absent.

No enquiry was made as to why Council could not attend. If indeed Council was committed on that date as it states, there is no record of whether attempt was made to defer the matter to some later date to have the conciliation done properly. All that is apparent is that the conciliator was haste to refer the matter to arbitration without carrying out his conciliation function properly. Such conduct closed the door for the parties to discuss the issues which are now being raised on appeal and review as having been improperly entertained. It is clear that breach of the conciliation process resulted in an irregular referral to arbitration. The review case to that extent, is an arguable matter which carries some prospects of success. It should not be strangled by enforcement of rights which were arguably not determined properly.


As regards the first ground appeal this is technically a repeat of the review grounds. The sentiments made above in relation to the review grounds apply to this ground with equal force and deserves no repetition.

The bank statement argument, use of the wrong formula for the food hampers and severance of salary and allowances are equally arguable issues. As stated earlier in this judgement the bulky statements which Council says it wants to produce should have been used at conciliation to answer the question of how much was paid and what for.

It is not clear how the USD 150 food hamper evaded the USD 90 figure by employees and the USD 80 figure by the employer. The salary allowance severance is an issue to be addressed by the CBA and proof of payment of what was due and when. In a nutshell, the appeal is equally arguable and can form a foundation of a stay of execution plea.

This judgement would not be complete if it does not speak to the admitted USD 102 700 payable over 6 months as admitted by the employer. It is settled law that there is no need to prove what is admitted. See Delta Corporation Ltd v Forward Wholesalers (Pvt) Ltd & Another HC H 53/17 In the case at hand, the admitted amount can be separated from the amount that is contested. The justice of the case requires that the stay relief be only limited to the contested amounts.

In the ultimate, the court is satisfied that the stay application is partially merited to the extent of the contested amount. Stay is accordingly granted only for the contested amounts leaving out the admitted component being free to be executed and enforced by respondent if it so wishes.

IT IS ORDERED THAT:

1. Application for stay of execution being partially merited it be and hereby succeeds.
2. Arbitral award be and is hereby stayed only in relation to the contested amounts pending appeal and review.
3. The USD 102 700 conceded by Mazowe Rural District Council be and is hereby excluded from the stay order. If the respondent is desirous of executing the uncontested USD 102 700 it is free to do so in the appropriate forum


4. There be no order as to costs.

Mavhiringidze and Mashanyare
Lawman Chamber Respondent’s

Applicants Legal Practitioners
Legal Practitioners
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