NetOne Cellular (Pvt) Ltd v Johannes Makonese

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/501/2014
HARARE, 13 MAY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/501/2014

HARARE, 13 MAY 2014  		     	             CASE NO. LC/H/251/14

AND 01 AUGUST 2014

In the matter between:-

NETONE CELLULAR (PVT) LTD					Applicant

AND

JOHANNES MAKONESE						Respondent

Before Honourable R. Manyangadze, J:

For Applicant		-	C. Kuhuni (Legal Practitioner)

For Respondent		-	M. Nzarayapenga (Legal Practitioner)

MANYANGADZE, J:

This is an application for stay of execution of an arbitral award pending determination of an appeal.

Following quantification proceedings held before arbitrator Honourable T.S. Makamure, applicant was ordered to pay an amount of US$350 000,00 as damages in lieu of reinstatement.

The legal principles applied in an application of this nature are well established.  They have been enunciated in various cases, which include Jere v Chitsunge HB 10/03, South Cape Corporation v Engineering Management Services 1979 (3) SA 534, Zimbabwe Open University v Gideon Magaramombe & Another SC 20-12.

The factors considered are:

the likelihood of irreparable harm being suffered by the applicant if execution is not stayed

the prospects of success on appeal.

the balance of convenience.

Before considering these factors in the light of the facts of this matter, there is need to consider a preliminary point that has been raised by the respondent.  It is to the effect that the applicant has not been honest with the court, and should therefore not be granted the relief it seeks.

The averment by the respondent has been prompted by the applicant’s assertion that the respondent has in fact been paid the amount which was the subject of the arbitral quantification.  In its papers filed of record i.e. the Founding Affidavit and the Heads of Argument, the applicant averred that it paid the respondent an amount of $277 148,89 in full and final settlement of the amount due to respondent as damages in lieu of reinstatement.  Applicant’s counsel also asserted this during his oral submissions at the hearing of the matter.

On the other hand, the respondent averred that the amount referred to by the applicant was never paid.  What was paid only amounted to $118 611,42, far from the aforementioned $277 248,89.

The respondent further averred that during the quantification proceedings, the parties engaged in discussions on the side of the formal proceedings.  The side discussions resulted in the applicant agreeing to pay an amount of $313 000,00 in full and final settlement of the respondent’s damages.  The applicant did not disclose this amount in its application for stay of execution.  The applicant is also incorrectly claiming that the $277 248,89 it is claiming to have paid was inclusive of backpay.  The respondent’s position is that backpay was a separate issue, and the amount argued as settlement of damages was exclusive of backpay.  The applicant was misleading the court by including backpay in the damages figure.

The respondent urged the court to dismiss the application without even going into the merits, having regard to the non-disclosures and misrepresentations by the applicant.

The respondent even went so far as to urge the court to consider not only costs on a higher scale against the applicant, but also costs de bonis propiis against applicant’s legal practitioner.

In this regard, the respondent referred the court to the judgment of MATHONSI J in Jonathan M. Gapare and TLP Agencies vs Farai Mushipe and The Deputy Sheriff, Bulawayo HB 17/11.

In that case, the applicants sought to protect, in an urgent chamber application, an immovable property that had never been placed under attachment.  To compound the case, they relied on an application for rescission of judgment filed “hopelessly out of time” and in respect of which no application for condonation had been made.  MATHONSI J had this to say:

“The fact that there is absolutely no disclosure in the papers that the house sought to be protected has not been placed under judicial attachment and that instead the relevant house is the one in North End, means that there is glaring non-disclosure of material facts and misrepresentation as to suggest a deliberate effort to hoodwink the court into granting an order where no foundation for it is established”.

It seems to me the Judge in that case was confronted with an instance of blatant misrepresentation.  It appears there was an attempt to stop execution by all means possible, even a deliberate misrepresentation of facts to the court.  This attracted not only “dismissal of the application, but an award of costs de bonis propiis.

In casu, the court is confronted with two different versions of what was agreed between the parties.  As appears from the record, there were protracted negotiations on what was due and payable, culminating in the arbitral quantification.  There is correspondence spanning over a period of 6 months, where letters and emails were exchanged.  Various figures emerge.  There include $210 304,00, $277 148,89, $118 611,42, $313 000,00, $221 642,51, and $47 555,71.

In the course of the negotiations, some payment was accepted by the respondent.  He claims it was $118 611,42.  The applicant claims it was $277 148,89, inclusive of backpay.  Respondent insists the payment had nothing to do with back pay, as this was separately agreed upon.

This scenario, where one version differs from the other, in my view, is distinguishable from the one that obtained in the Gapare case, supra.  There are material disputes to be determined on the quantification, before one can definitively conclude that there is blatant misrepresentation.  I am not prepared to go as far as that conclusion, given the conflicting versions and the long history of negotiations.

On whether or not applicant has shown good and sufficient cause for stay of execution, what has been noted above is equally applicable to this question.  Various figures have been mentioned, whose accuracy needs to be ascertained before execution is carried out.  The veracity of the quantum, in my view, cannot be properly ascertained at this interlocutory stage, given the conflicting versions.  The court that will be seized with the appeal is the one that may properly dig deep into the merits of those versions..

If the appeal succeeds and the respondent has executed, he most  likely will not be able to restore the status quo ante.  There will then be irreparable prejudice to the applicant.  In the case of Zimbabwe Open University vs Gideon Magaramombe and Another SC 20/12, the court attached considerable weight to the ability of the respondent to make good any loss that may be suffered as a result of execution.  CHIDYAUSIKU CJ stated, at page 9 of the cyclostyled judgment:

“On the papers before me it has been established that in the event of the University being successful on appeal Magaramombe will not be able to restore the status quo ante.  On this basis I am satisfied that the University will suffer harm if interim relief is not granted.”

The need for execution  after final judgment becomes even more necessary when one  takes into account the award of punitive damages, included in the arbitral award.  In his submissions at the hearing, counsel for the respondent conceded that this aspect of the award may possibly be faulted.  He however, hastened to add that the arbitrator is empowered by law to award punitive damages.  It is correct that the arbitrator has discretion to award punitive damages by virtue of section 89 (2) (c) (iii) of the Labour Act, [Chapter 28:01].  It is however, possible an appeal court may find that this discretion was not properly exercised..

On the whole, this seems to be one of those cases where, in the interests of justice and fairness to both parties, execution must follow final judgment.

In the circumstances, it is ordered that;

Execution of the arbitral award granted in favour of the Respondent on 28 February 2014 be and is hereby stayed pending determination of the appeal filed under case number LC/H/251/14.

Costs shall be in the cause.

C KUHUNI ATTORNEYS, Applicant’s legal practitioners

DUBE-BANDA NZARAYAPENGA, Respondent’s legal practitioners