Revco (Pvt) Ltd v L Mhuno

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/182/14
HELD AT HARARE 10TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/182/14

HELD AT HARARE 10TH FEBRUARY 2014 	CASE NO LC/H/905/13

& 28TH MARCH 2014

In the matter between:-

REVCO (PVT) LTD					Applicant

And

L MHUNO						Respondent

Before The Honourable L Hove, Judge

(IN CHAMBERS)

HOVE, J:

On 10 February 2014 the Registrar placed before me in chambers, an application for interim relief.

After considering the papers filed as of record, I dismissed the application and in the order gave the reasons for dismissal as:

“.  The applicant does not enjoy good prospects of success.

. There is no basis given that the respondent would not be able to reimburse in the event that he loses the appeal.  He is gainfully employed.”

This notwithstanding, the applicant’s legal practitioner wrote to the Registrar on 21 February 2014 requested for written reasons for the order, these are they;

It is common cause that in considering an application such as this one, the court will take into account the following factors:

Likelihood of prejudice that may be suffered by either of the parties.

Prospects of success.

The applicant’s bona fide of noting the appeal in the first place.

Existence of a well grounded apprehension of irreparable harm.

Absence of an alternative remedy.

See the case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534.

The appellant argued in its heads of argument that it had a well

grounded apprehension of irreparable harm because its other employees may demand salary increments which the applicant, being in financial difficulties, cannot afford to pay.

I found it difficult to understand the basis of the apprehension.  The fact that other persons may demand salary increments in the event that the application for interim award is not successful is in my opinion not a well grounded apprehension.  If other persons demand salary increments the demands can be dealt with on their own merits and in terms of law.  The type of irreparable harm that is in my opinion envisaged by the legislature is for example where an employee with a clearly hopeless case is paid when he will most likely lose an appeal and will not be able to reimburse the employer.  In those circumstances, an employer can have a well grounded apprehension of irreparable harm.  There can be other circumstances no doubt, but the applicant in this case does not make a good case.

The respondent is in gainful employment employed by the applicant.  In the event that he is unsuccessful, the employer will simply deduct the amounts paid from the respondent’s earnings.

I am not satisfied that the application in this case has discharged the onus as set out by the court in the case of Santan Insurance Co Ltd v Paget 1981 (2) ZLR 132 that;

“The onus rests on the party claiming this type of relief to satisfy the court that injustice would otherwise be caused him or, to express the proposition in a different form of the potentiality of his suffering irreparable harm or prejudice.  The task is by no means easy where as in the present case, the judgment it is sought to suspend sounds in money for the giving of effect to it unlike with orders for ejectment or the transfer of property, does not render difficult any restitution that may have to be made.”

In the case of Chibanda v King 1983 (1) ZLR 116

The court stated that

“In an application for stay of judgment, it is not enough for the applicant merely to allege hardship.  He must satisfy the court that he may suffer irreparable harm or prejudice if execution is granted… he must have strong evidence to present to the court.  It must also be borne in mind that if the court were to extend mercy it will be doing it at the expense of a litigant who has already established in court and has a right and title to what is being claimed.”

I am not satisfied in casu that there is evidence of irreparable harm or prejudice likely to be suffered if the relief sought is not granted.

The onus to satisfy the court that an injustice would be suffered rests on the applicant.  But the applicant has not shown that it would suffer injustice nor has it demonstrated the potentiality of its suffering irreparable harm or injustice.

As regards the prospects of success, the finding by the arbitrator was that there was no evidence that the variation in the cafeteria allowance was by mutual consent.  The employer acted unilaterally.  The law provides that an employer cannot vary the conditions of service unilaterally.  See the case of Kwangwari v Commercial Bank of Zimbabwe HH 78-03.

This, on the face of it, makes the employer’s case weak.  The employer does not deny that there was a variation all it says is that it was by consent.  The arbitrator found as a matter of fact that there was no evidence of consent to vary by both parties.

This was a factual conclusion which cannot be challenged unless it can be said to be grossly unreasonable.

The applicant sought to use the contents of a document marked “without prejudice” to support its averments.  Prima facie a position taken “without prejudice” to one’s rights cannot be used to support a position that takes away the rights.	A decision by the arbitrator that the employer had acted unilaterally is also factual and cannot be challenged in this court in view of the provisions of section 98 (10) which provides that only appeals on a question of law shall lie to the Labour Court from decisions of arbitrators.

It is for these reasons that on the face of it, I am not convinced that the applicant has reasonable prospects of success.  Consequently, the court held the view that the justice of the case actually favoured the refusal to grant the application and the relief sought.