Next Page Concepts v Kudakwashe Kachambwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/638/2013
HARARE, 12 AND 15 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/638/2013

HARARE, 12 AND 15 NOVEMBER 2013	    		 CASE NO. LC/REV/H/103/12

In the matter between:-

NEXT PAGE CONCEPTS						Applicant

And

KUDAKWASHE KACHAMBWA					Respondent

Before The Honourable F.C. Maxwell,: Judge

(IN CHAMBERS)

MAXWELL J.;

This is an application in terms of Section 92E (3) of the Labour Act [Chapter 28:01] for suspension and stay of execution of an arbitral award in favour of the Respondent.  The award was made on the 29 July 2012.  Applicant was ordered to pay within twenty one working days a total of USD20 310 to Respondent being outstanding benefits as at date of termination of employment.

Applicant filed an application for review on 22 August 2012.  Attached to the notice of application for review are grounds of appeal.  In the urgent chamber application for suspension and stay of execution of the arbitral award Applicant refers to “pending appeal”.

Application alleges that Respondent has applied for registration of the said award to the High Court and the matter has been set down for the 18th of November 2013.  Applicant further alleges that its prospects of success on appeal are high and that irreparable harm will result if the matter is not heard on an urgent basis.

The factors to be taken into account in considering the grant of interior relief were set out in the case of Zimbabwe Open University v Gideon Magaramombe 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”

It is not clear what the intention of the Applicant was when it approached the Court on 22 August 2012.  As mentioned above the notice filed is for an application for review and yet the grounds are for appeal.  Assuming it was to seek review of the Arbitrator’s decision, it is necessary to consider whether the grounds raised issues of absence of jurisdiction, interest in the cause, bias, malice, corruption or gross irregularity in the proceedings.

Firstly there is an allegation that the Arbitrator exhibited interests in the matter.  The reason given for this conclusion is that the Arbitrator’s decisions were based upon a contract of employment proposed by the claimant.  That on its own is not sufficient to establish interest or bias in the matter.  It is common cause that Respondent worked for three years under an oral contract of employment.

Applicant also took issue with the subject for determination referred to the arbitrator.  He alleges that the Arbitrator went outside his mandate as he was supposed to determine whether or not the Respondent would pay agreed benefits.  The dispute seems to be what those agreed benefits are.  That is not a procedural issue that can be dealt with on review.

Applicant further alleges that the Arbitrator was not impartial.  There is however no justification for that assertion except a reiteration that the Arbitrator seemed to have interests in the Respondent’s submissions.  The Court is not satisfied that there are any prospects of success on review.

Assuming the Applicant approached this Court on appeal on 22 August 2012 there are also no prospects of success.  An appeal from an Arbitrator’s decision is on a question of law in accordance with Section 98 (10) of the Labour Act [Chapter 28:01].  The grounds of appeal do not raise any question of law.

Whilst Section 92E (3) empowers Applicant to approach this Court for interim relief, I am not convinced that there any prospects of success on either appeal or review.  For that reason the application fails.

Accordingly it is ordered that:

The application for stay of the execution of the arbitral award being without merit be and is hereby dismissed.

There is no order as to costs.