Shepherd Chipunza v Hammer & Tongues Auctioneers (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/115/2020
HARARE, 4 MARCH, 2020
CASE NO. LC/H/APP/582/19
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/115/2020

HARARE, 4 MARCH, 2020			 CASE NO. LC/H/APP/582/19

XREF: LC/H/330/19

AND 19 JUNE 2020

In the matter between:

SHEPHERD CHIPUNZA							APPLICANT

Versus

HAMMER & TONGUES AUCTIONEERS				RESPONDENT

(PRIVATE) LIMITED

Before The Honourable Kachambwa J;

For Applicant:					A. Chambati (Legal Practitioner)

For Respondent:					P. C. Fauti (Legal Practitioner)

KACHAMBWA J:

This is an application for rescission of an order. It is in terms of section 92C (1) (b) of the Labour Act [Chapter 28:01] (the Act). The reason for the application is that the order was void.

The facts of the matter are that the applicant had an award in his favour. The respondent filed an appeal with the Labour Court but did not make a simultaneous or earlier application for stay of execution. An application for stay of execution was made later. Meanwhile, the applicant registered the award with the magistrates’ Court making it an award of that Court for the purpose of execution. Unbeknown to this Court the application for stay was granted when the award had already been registered. The

applicant says that the stay is void in the circumstances and therefore must be rescinded. The respondent opposed the application.

The respondent’s grounds for opposing the application are that;

1.	The stay of execution order is not void

2.	The Labour Court has jurisdiction to stay execution of a warrant even if the order has been registered with another Court. The suspension is for the execution and not the court order.

Those are the grounds for opposition as can be extracted from the respondent’s affidavit.

Both the High and Labour courts have had occasion to deal with this issue. Specifically the point is that when an order is now an order of the magistrates or High court can the Labour court issue a stay of execution to such an order?. The answer is in the negative. The Labour Court cannot be seen to be doing that. This is more so when one considers the confusion that such an approach can bring in litigation. It will result in a situation where one party is busy executing a judgment when the other party is waiting for an order staying the execution!

It is not denied that the Labour Court may issue a stay of execution. This must be done before the order is registered with the other Court. This is why a prudent appellant should simultaneously file an application for stay with the appeal. Not to do so would be taking chances. The stay of execution is in terms of Rule 41 of the Labour Court Rules-

“Pending the determination of an appeal the Court or a Judge sitting in chambers may, upon application of, order stay of the execution of a decision, order or determination appealed against”.

While the rule does not speak to the situation where the order has become the order of another Court, it stands to reason that the legislature could not have meant to create

conflicting situations where one Court is staying when the other is authorizing execution. Such a course has been denied in;

1. 	Proton Bakeries (Private) Limited v Nduna & Others HH 257/2015.

“..respondent proceeded to seek the registration of the arbitral award with this court. This was successfully opposed by the applicant. The applicant after being served with writ applied for a stay of execution in the Labour Court and on 4 March 2015 Makamure J dismissed the application for want of prosecution.”(my emphasis).

2.	Rainbow Tourism Group v Farai Kabasa & Another SC 52/2014

“..what is apparent from both cases and from what counsel for both parties agreed upon is the fact that the Labour Court has no powers to stay an order made by the High Court..”

3.	Hwange Colliery Company Limited v Leteng Sibanda & 15 others LC/H/APP/388/2014

“The award in terms of which the respondent seeks to execute has been registered with the High Court and by operation of law it has become an order of the High Court. The Court has no jurisdiction to stay execution in relation to orders of the High Court…”

The point seems clear now that once the order is now an order of another Court

the Labour Court cannot stay execution. In my opinion this is the correct position. For

this reason the present stay of execution was issued in error, in ignorance of the fact

that the order had been elsewhere  registered. Consequently it is void. It must be

rescinded.

It is therefore ordered as follows;-

1.	That the applicant’s application for rescission of the order granted by this Court be and is hereby granted.

2.	That the order of this Court under Case LC/H/APP/530/19 be and is hereby rescinded.

3.	That costs shall be in the cause.

Mawere & Sibanda		-		Appellant’s Legal Practitioners

Chambati, Mataka & Makonese Attorneys At Law – Respondent’s Legal Practitioners