Munn Marketing 1992 (Pvt) Ltd v Edmund Madzorera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/125/14
HELD AT HARARE 20TH JANUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENTNO LC/H/125/14

HELD AT HARARE 20TH JANUARY 2014		CASE NO LC/H/272/13

& 14TH MARCH 2014

In the matter between:-

MUNN MARKETING 1992 (PVT) LTD			Appellant

And

EDMUND MADZORERA					Respondent

Before The Honourable P Muzofa, Judge

For Appellant		Advocate F Mahere

For Respondent		(Trade Unionist)

MUZOFA, J:

This is an appeal against an arbitral award that was made in favour of the Respondent.

Before the matter proceeded into the merits the Respondent raised a point in in limine that Appellant was approaching the court with dirty hands.  It is not in dispute that an arbitral award was made on the 15th of March 2013 in favour of the Respondent.  Appellant did not comply with the award.  The award was neither suspended nor set aside by a competent Court.  According to the Respondent since the arbitral award is still operational the Appellant has dirty hands and cannot approach this Court for relief. Respondent relied on the cases OF Vasco Olympio and Others v Shomet Industrial Development HCH 191/12 and Kingdom Bank Workers’ Committee v Kingdom Bank Financial Holdings HCH 302/11.  The application was opposed on the basis that the Labour Act [Chapter 28:01] has not specifically altered the common law position as regards an appeal against an arbitral award.  In principle it was Appellant’s contention that it did not have dirty hands.

The issue for the court to determine is whether the Appellant approached this court with dirty hands.  As correctly pointed out on behalf of the Appellant there are two schools of thought on this issue.  The Supreme Court has not had an opportunity to settle the issue.  On one hand there is the position as argued by the Respondent, that an appeal against an arbitral award in terms of section 98 (10) of the Labour Act suspends that arbitral award.

The court was referred to various cases including Dhlodhlo v Deputy Sheriff Marondera and Others HCH 76/11 and The Heritage School v Seka and Others HCH 6/12.  The court is persuaded by the second school of thought that an appeal does not suspend the arbitral award appealed against.  In the case of Gaylord Baudi v Kenmarck Builders (Pvt) Ltd HCH 4/12 the Learned JUDGE PATEL (as he then was) had this to say at p 2 of the unreported judgment.

“It is not in dispute that an appeal to the Labour Court against the decision of an arbitrator under section 98 (10) does not suspend the decision appealed against.  This is expressly provided for by section 92 E of the Act in relation to every appeal to the Labour Court in terms of the Act.”

I fully subscribe to this exposition of the law relating to the suspension of an arbitral award.  This court’s view is that an appeal against an arbitral award as in this case is an appeal in terms of this Act as envisaged by section 92 E (2) of the Labour Act and therefore does not suspend the decision appealed against.  Clearly the common law position was varied by this provision.  There is therefore merit in Respondent’s submissions, the Appellant has dirty hands.

The position is clear then, the Appellant cannot be heard until it has purged its contempt.

Accordingly it is ordered that;

The appeal be and is hereby struck off the roll

There is no order as to costs.

Atherstone & Cook, Appellant’s legal practitioners

Zimbabwe Graphical Workers Union, respondent’s representatives