Premier Laboratory Technologies (Pvt) Ltd v Crispen Magaya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/453/14
HARARE ON 7th JULY, 2014
CASE NO. LC/H/APP/307/2014
And 18TH JULY 2014
JUDGMENT NO. LC/H/453/14
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/453/14

HARARE ON 7th JULY, 2014		                 CASE NO. LC/H/APP/307/2014

And 18TH JULY 2014

In the matter between

PREMIER LABORATORY TECHNOLOGIES (PVT) LTD	–	Applicant

And

CRISPEN MAGAYA						–	Respondent

Before The Honourable Manyangadze, J.

For  Applicant	: N. Munetsi (Legal Practitioner)

For Respondent	: A. Chmbati (Legal Practitioner)

MANYANGADZE J.

This is an Urgent Chamber Application for Stay of Execution of an arbitral award granted by Honourable P. Chawira on 12th February 2014.

In terms of the award, the Applicant was ordered to pay an amount of US$3 500.00 as terminal benefits to the Respondent.

The Respondent proceeded to have the arbitral award registered with the Magistrates Court under case No. 3338/14, for purposes of enforcement. In pursuance of such enforcement, a Notice of Attachment in Execution was issued on 4th July 2014, in terms whereof various goods belonging to the Applicant were placed under judicial attachment, pending removal on 9th July 2014.

This application therefore urgently seeks stay of execution under-way in the Magistrates Court.

At the hearing of the matter, the Respondent raised two points in limine. The first one was to the effect that this application is defective, in that it has been brought in terms of the wrong Rule being Rule 34(1) of the Labour Court Rules, Statutory Instrument 59 of 2006. The second point was that the matter should not be given the status of an urgent application, as the Applicant waited until the last minute to seek the urgent relief. In other words, he created the urgency himself, which he could have avoided by taking appropriate measures earlier.

On the first point, the Respondent averred that Rule 34(1) covers determinations made by the Labour Court. The Labour Court is a creature of statute. It is only empowered to order stay of execution of registered orders in terms of Rule 34(1). Rule 34(1) provides as follows:

“Where a decision, order or determination has been registered in terms of s92B(3) of the Act, the court or president sitting in chambers may upon application order a stay of execution of the decision or order or determination.”

This Rule is giving powers, to the Labour Court to order stay of execution of determinations registered in terms of Section 92B(3) of the Labour Act [Chapter 28:01]. It is therefore necessary to look at Section 92B(3) of the Act. This section provides;

“Any party to whom a decision, order or determination relates may submit for registration the copy of it furnished to him in terms of subsection (2) to the court of any magistrate which would have jurisdiction to make the order had the matter been determined by it or if the decision, order or determination exceeds the jurisdiction of any magistrate court, the High Court.”

The whole of Section 92B deals with decisions, orders and determinations of the Labour Court.

The arbitral award in question has been registered in terms of Section 98(14) of the Act. It is the equivalent Section to Section 92B(3), when it comes to the enforcement of arbitral awards.

It is quite clear from the provisions cited, Rule 34(1) deals with Labour Court orders, decisions and determinations. It specifically relates to such decisions.

The applicant has brought its application specifically in terms of Rule 34(1), when it is seeking stay of execution of an arbitral award. This is not within the ambit of the Rule cited, the Rule upon which the application is based.

It seems to me there is a lacuna in the legislation, in that reference to Section 98(14), relating to arbitral awards, was omitted. The Court cannot read into Rule 34(1) words that are not there, without violating its meaning. It is trite that words of a statute must be given their ordinary grammatical effect. Had the Applicant brought its application as an application for interim relief in terms of Section 92E(3) of the Act, it seems to me he would have had an arguable case for stay of execution.

The section in terms of which it has brought its application will result in an order that is ultra vires the Rules.

In Sibangalizwe DhloDhlo vs. The Deputy Sheriff of Marondera and Others, HH 76/11, GOWORA J. (as she then was) considered a similar situation. She had this to say, at page 5 of the cyclostyled judgment:

“The issue which then arises is whether this was a decision, order or determination registered according to the provisions of Section 92B……………………. Section 92B in turn permits the registration of the order or decision with Magistrates Court or the High Court, depending on the jurisdictional limit of the lower court. Clearly an award from an arbitrator cannot be registered under Section 98 B. A closer scrutiny of the Act actually reveals that the appropriate Section for the registration of such awards is Section 98(14), which is to all intents and purposes a mirror of Section 92B(3) except that there is reference to an arbitrator and an arbitral award as opposed to the Labour Court ……………….

In my view, the Labour Court provided for the suspension of orders or decisions registered under Section 92B(3) only. The judgments registered under Section 98(14) have been excluded. A suspension of any award granted under Section 98 would therefore be ultra vires the rules themselves as they have not provided for such suspension.”

This is exactly the situation Applicant finds itself in in the instant matter. It is inviting the Court to grant an order that will certainly be ultra vires the Rules, as it has been made in terms of the wrong provision. In view of this, it is not necessary to deal with the second point in limine, that relating to urgency, as the first point in limine has the effect of disposing of the application.

In the result, it is ordered that;

The first point in limine raised by the Respondent be and is hereby upheld.

The Urgent Chamber Application for Stay of Execution be and is hereby dismissed with costs.

IEG Masimbe and Partners – Applicant’s legal practitioners

Chambati, Mataka & Makonese – Respondent’s legal practitioners