Premier Service Medical Investments (Private) Limited v Thulani Ncube & 4 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/103/25
HELD AT HARARE 10 MARCH 2025
CASE NO. LC/H/200/25
IN THE MATTER BETWEEN:
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/103/25

HELD AT HARARE 10 MARCH 2025				CASE NO. LC/H/200/25

IN THE MATTER BETWEEN:

PREMIER SERVICE MEDICAL

INVESTMENTS (PRIVATE) LIMITED				APPLICANT

AND

THULANI NCUBE							FIRST RESPONDENT

KELVIN CHITIMBE						SECOND RESPONDENT

TENDAYI MUNGOFA						THIRD RESPONDENT

LORRAINE TAUYA						FOURTH RESPONDENT

MESSNEGER OF COURT (HARARE) N.O.			FIFTH RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant					Mr. N. Tonhodzayi

For 1st to 4th Respondents			Mr. S. Katsuwa

With Ms. T.N. Wazadza

No Appearance for Fifth Respondent

MURASI J.,

This is an Urgent Chamber Application for stay of execution pending the determination an appeal filed with this Court.

The facts are common cause.  First to Fourth Respondents are former employees of the Applicant. There has been a continuing dispute between the parties as regards the Respondents’ entitlements in terms of salaries and benefits. In this particular case, the Respondents had an arbitral award granted in their favour on 10 January 2025. This is the subject of the present proceedings. Armed with this arbitral award, the Respondents proceeded to the Magistrates Court to have it registered for the purpose of execution. Respondents filed this application on 3 March 2025. Applicant, on the other hand, is dissatisfied with the arbitral award and filed an appeal with this Court on 3 March 2025. Having been served with the application for registration at the magistrates’ Court, Applicant did not file any opposing papers until the date of the present hearing. Meanwhile, Applicant proceeded to file the present application on 6 March 2025 when the hearing at the Magistrates Court was scheduled for 7 March 2025.

In order to manage the matter, this Court issued a directive to have the Respondents served with the documents by end of day on 7 March 2025 and that parties appear before the Court on 10 March 2025 at 11.00 hours. Mr. stated that they had been unable to file the documents on the IECMS platform before the hearing time. The Court indicated that as it was an urgent application, the Respondents could make their submissions orally.

Submissions by the Parties

Mr. Tonhodzayi stated that in applications of this nature, the test to be applied was whether there was real and substantial justice which called for the stay of execution of the arbitral award. He submitted that the grounds of appeal showed that there were prospects of success on appeal as the Arbitrator had proceeded to make a determination on a matter that was res judicata. He added that the issues in question had been deliberated before a Conciliator which had culminated in a Certificate of Settlement. He submitted that the Certificate of Settlement had been duly registered for the purpose of execution.

Mr. Tonhodzayi further submitted that the Arbitrator erred in stating that the Respondents were entitled to payment of salaries for the period they were on an unlawful collective job action. He further argued that if execution was to proceed, property belonging to Applicant would be attached and this would cause substantial prejudice to the Applicant. He added that substantial justice required that execution be stayed pending the determination of the appeal filed with this Court. He was, however, unable to provide details concerning the proceedings in relation to Respondents’ retrenchment. Mr. Tonhodzayi also confirmed that as at 7 March 2025, Applicant had not filed any documents at the Magistrates Court.

In response, Mr. Katsuwa stated that such applications have to show a balance of convenience. He submitted that Applicant was required to show that if the arbitral award was registered, it would suffer irreparable harm as a result. He added that appeals and applications in the Labour Court are now being determined at a faster pace than before and the matter was set to be concluded soon. He also argued that the Applicant had not bothered to file any opposing papers at the Magistrates’ Court showing that it had deemed that application important. Mr. Katsuwa further submitted that there were no prospects of success on appeal as the Applicant had not paid any of the sums of money it was ordered to pay as Applicant has not tendered any proof pf such payment. He also indicated that at page 37 of the record was the indication that there was a gap in the arrear salaries which remained unpaid. To that extent, it was argued that Applicant had failed to discharge the onus resting on it. It was also argued that the amount in amount was USD 10 000-00, and the Applicant could not argue that vast properties were liable to be attached to satisfy the debt in question. Mr. Katsuwa also shed light on the fact that the issue of retrenchment was still with the Retrenchment Board and was still to be finalized.

ANALYSIS

In exercising the discretion to grant a stay of execution, the court should take the following issues into consideration:

The potentiality of irreparable harm or prejudice being sustained by either party.

The prospects of success on appeal, more particularly the question of whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment a quo, but for some indirect purpose, that is, to gain time or harass the other party.

The balance of convenience where there is potentiality of irreparable harm or prejudice to both parties. (See South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A)).

It is a truism that one suffers irreparable harm where there is no other practical remedy available. It is also correct to state that parties do have recourse under the law for compensation for any harm that they may suffer.

It should also be borne in mind that the Applicant has filed an appeal with this Court against the determination of the Arbitrator. Applicant avers in that appeal that the Arbitrator made a decision in a matter which was res judicata. This issue deals with jurisdiction. It is an arguable issue. Can it therefore be said that the appeal is frivolous and vexatious? I think not.

The next point to consider is the potentiality of irreparable occurring to either party. The amount is about USD 10 000-00. The Respondents are awaiting the finalization of the retrenchment process. No averments were made during the proceedings that the Respondents are employed elsewhere. On the one hand, it can be considered that if the Applicant were to pay the amount in question, it would proceed to deduct the sums of money from the Respondents’ retrenchment packages. However, the net worth of Respondents in that respect is not known to the Court for it to delve into that scenario. It is thus my view that, on the papers before me, that in the event of the Applicant being successful on appeal, Respondents will not be able to restore the status quo ante. It is on this basis that I find that the Applicant will suffer irreparable harm if the interim relief is not granted. The balance of convenience favours the Applicant.

In the result, the Court makes the following Order:

The application is hereby granted.

The execution of the arbitral award of  Honourable Ms. Mutiba dated 10 January 2025 is hereby stayed pending the determination of the appeal filed in Case Number LC/H/181/25.

Each party to meet its own costs.

Musendekwa and Mtisi-			Applicant’s legal practitioners

Masasire Law Chambers-			1st to 4th Respondents’ legal practitioners.