Skyview Minerals v Sydney Ziyambi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/801/14
HELD AT HARARE 5TH SEPTEMBER 2014
CASE NO 801/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/801/14

HELD AT HARARE 5TH SEPTEMBER 2014		CASE NO LC/H/84/14

& 5TH DECEMBER 2014

In the matter between:-

SKYVIEW MINERALS				Applicant

And

SYDNEY ZIYAMBI					Respondent

Before The Honourable R.F. Manyangadze, Judge

For Applicant		S Zvinavakobvu (Legal Practitioner)

For Respondent		I Chingarande (Legal Practitioner)

MANYANGADZE, J:

On 30 January 2014, Honourable J.T. Mawire issued an arbitral award in terms of which the applicant was ordered to reinstate the respondent without loss of salary and benefits, or pay him damages in lieu of reinstatement.

On the same day, the applicant noted an appeal in this Court against the arbitral award.

Pending determination of the appeal, applicant filed the present application for stay of execution.

The parties are not in contention over the legal principles applicable in an application of this nature.  They have referred the Court to a number of cases These include Zimbabwe Open University v G Magaramombe

and Anor SC 20 – 12 University of Zimbabwe v Jirira & Others SC – 45 – 13

South Cape Corporation (Pvt) Ltd v Engineering Management Services (Pvt) Ltd 1977 (3) SA 534.  The requirements were set out as:

The possibility or potentiality of irreparable harm occurring if the application is not granted.

Prospects of success on appeal.

The balance of convenience.

On the potentiality of irreparable harm, what is considered mainly is

whether the respondent will be able to reimburse the applicant in the event that the appeal succeeds.  This, unfortunately, is where most respondents’ cases suffer.  Most, if not all, are unable to demonstrate that they will be able to reimburse the applicant.   This is what the Supreme Court, in the Maramombe case, supra, referred to as the ability to restore the status quo ante.  It found that the respondent, Mr Magaramombe, was not in a position to restore the status quo ante.  That consideration weighed quite heavily upon the court’s mind when it granted interim relief.

It seems to me the respondent in casu is in no different position.  The arbitral award shows that he is claiming a total of over US$400 000.00.  Although the claim is not yet quantified, it will most likely be a substantial figure.  If he executes the award, he will most likely be unable to restore the status quo ante.

I therefore find that this requirement, of the potentiality of irreparable harm, favours the granting of the interim relief sought.

The other requirement, of the balance of convenience, is in my view, inextricably linked to the one looked at above i.e. potentiality of irreparable harm.  Having found that that the potential for irredeemable prejudice exists, it will be inconsistent to find that the balance of convenience favours the respondent.  For the very same considerations, such balance is tilted against the respondent.

The other aspect touched on in the parties’ submissions is that on prospects of success.  The brief facts show that the respondent’s contract was terminated following disagreement on terminal benefits.  The appellant faced viability problems, and terminated the contracts of employment of its employees, including the respondent.  The respondent challenged the termination, alleging it amounted to unfair dismissal.  The arbitrator found in his favour.  He reasoned that the termination was not done in terms of the applicable employment Code of Conduct, or even in terms of the contract of employment.

The appeal raises the important question of whether an employer can unilaterally terminate an employment contract on notice.  The appeal will most likely turn on a determination of this question.  Neither party, in my view, has convincingly shown that this question will be decided in their favour.  Execution becomes risky under the circumstances, given the substantial package at stage.  It seems to me in the interests of justice that interim relief be granted.

In the result, it is ordered that;

Execution of the arbitral award granted in favour of the respondent on 30 January 2014 be and is hereby stayed pending determination of the appeal filed under Case No LC/H/84/14.

Costs shall be in cause.

Mutamangira & Associates, appellant’s legal practitioners

Sengwe Law Chambers, respondent’s legal practitioners