Step Ahead (Pvt) Ltd v Ezekiel Makaza and The Messenger of Court

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/632/2013
HARARE, 12 AND 22 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/632/2013

HARARE, 12 AND 22 NOVEMBER 2013	    		     CASE NO. LC/H/360/2013

In the matter between:-

STEP AHEAD (PVT) LTD						Applicant

And

EZEKIEL MAKAZA							1st Respondent

And

THE MESSENGER OF COURT					2ND Respondent

Before The Honourable F.C. Maxwell,: Judge

(IN CHAMBERS)

MAXWELL J.;

This is an application for Stay of Execution of an arbitral award in favour of the 1st Respondent pending the hearing of an appeal filed in this Court.  The award was issued in April 2013.  The Applicant was ordered to pay 1st Respondent a total of   $7 694,00.

Applicant noted an appeal against the arbitral award in May 2013.  The appeal is yet to be heard.  1st Respondent has already obtained a warrant of execution against Applicant’s property after registering the award with the Magistrates Court.  On the 31 October 2013 1st Respondent’s lawyers gave Applicant seven days to act failing which the warrant of execution will be enforced.  Applicant fears that if the execution of the warrant is effected irreparable harm will result.  Applicant alleges that it has got a very good case against the 1st Respondent and the prospects of success in that case are very high.

For an application of this nature to succeed, the Court must be satisfied that injustice would be caused if stay is not granted.

In considering that injustice is not occasioned, the Court would also have regard to the prospects of success on appeal, the potentiality of irreparable harm or prejudice to either of the parties and the balance of hardship or inconvenience (see Sub Saharan Management Consultants P/L v Sirutiton Investments (Pvt) Ltd and Others HH 249/12)

As stated in Chibanda v King 1983 (1) ZLR 116 granting a Stay of Execution would be an extension of mercy, at the expense of a litigant who has already established his right and title to what is being claimed.  As such a strong case must be made to warrant the stay of execution.

It appears that the Applicant has no prospects of success on appeal.  In terms of Section 98 (10) of the Labour Act [Chapter 28:01]

“An appeal on a question of law shall lie to the Labour Court from any decision of an Arbitrator appointed in terms of this Section.”

The question is whether or not the appeal noted by the Applicant raises question of law.  The case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 discusses what a question of law is in the following terms:-

“First, it means  ‘a question which the law itself has authoritatively answered to the exclusion of the right of the Court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter’.

Second, it means ‘a question as to what the law is.  Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true law is on a certain matter’.

And third, any question which is within the province of the judge instead of the jury is called a question of law.”

It has also been held that a serious misdirection on the facts amounts to a misdirection in law.

See National Foods v Mugadza SC 105/1995.

In the appeal against the arbitration award the following issues are raised

Appellant has no obligation to honour two different contracts of employment since the Respondent was employed for completely different assignments that of being a manager and a supervisor on contract bases.

A mutual understanding was reached after 31 December 2011 and his (Respondent’s) terminal benefits were calculated after this date.  Appellant wrote him a letter notifying him that his contract was not going to be renewed and the letter clearly stated what was to be paid.  The Appellant consented to this by signing the letter and can be inferred to mean acceptance of the arrangement.

The Arbitrator erred in believing that Respondent was supposed to be paid USD200/week when in actual fact a supervisor’s wage is currently at USD319/month which runs from 01 July 2012 to 30 June 2013.

The Arbitrator erred in finding that Respondent was still in the employ of the Appellant.

Respondent in his response to the grounds of appeal accuses Appellant of deliberate misinformation.  He also alleges that:-

“The Appellant has largely deviated from its submissions before the Honorable Arbitrator in what I believe is a result of the continued hiring and firing of Consultants by the Appellant.  The recently hired consultant is desperately trying to rescue the situation by making untrue and inconsistent averments …..”

The grounds of appeal do not allege any serious misdirection of facts amounting to misdirection in law.  Only factual issues are raised contrary to the requirement to appeal on a question of law.  There is no justification therefore in staying the execution of the arbitral award in these circumstances.

Accordingly it is ordered that the application for stay of the execution of the arbitral award being without merit be and is hereby dismissed.

There is no order as to costs.