Tanaka Venturas v John Goro

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/702/2013
HARARE, 3 DECEMBER 2013
CASE NO. LC/H/702/2013
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/702/2013

HARARE, 3 DECEMBER 2013	    	     		        CASE NO. LC/H/865/13

In the matter between:-

TANAKA VENTURAS						Applicant

And

JOHN GORO							Respondent

Before The Honourable F.C. Maxwell, Judge

(IN CHAMBERS)

MAXWELL J.;

This is an application for stay of execution of an award issued by the second Respondent on 30 September 2013.  The 2nd Respondent ordered Applicant to reinstate the 1st Respondent without loss of salary and benefits.  If reinstatement is no longer an option Applicant was ordered to pay the 1st Respondent damages in lieu of reinstatement.  The parties are to agree on the quantum failing which either party may approach the Arbitrator for quantification.

On 25 October 2013 Applicant noted an appeal in this Court.  The appeal is yet to be heard.  Applicant fears that 1st Respondent will proceed with execution once damages have been quantified.  The matter for quantification of damages is set down for hearing on 4 December 2013.  Applicant fears that it will suffer irreparable prejudice if execution is effected and the appeal subsequently succeeds.

A person who seeks stay of execution of a judgment must satisfy the Court that, if the judgment is not stayed, injustice or irreparable harm or prejudice would result.

See Santam Insurance Company Limited v Paget 1981 ZLR 132.

The Arbitrator pointed out that the record of proceedings was not furnished to him.  He did not benefit from the reasons for the determination.  He states on page 8 of the record.

“Again without the aid of the record these questions that go to the root of the fairness or otherwise of the decision to dismiss cannot be answered.

Once the question of the fairness or otherwise of the decision cannot be answered then, the benefit of the doubt should work in favour of the claimant.”

There is a probability that an appellate Court may deal differently with the absence of the record of proceedings.

I am satisfied that Applicant has made a case for the execution of the award to be stayed.

Accordingly it is ordered that

The execution of the arbitral award handed down on 30 September 2013 by Honourable  J. Mambara be and is hereby stayed pending the hearing of the appeal filed on 25 October 2013.