ZESA Holdings (Private) Limited V Jeffrey Mbanje & 2 ORS

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/811/2014
HARARE, 25 SEPTEMBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/811/2014

HARARE, 25 SEPTEMBER 2014 &			   CASE NO LC/H/31/2013

5 DECEMBER 2014

In the matter between:

ZESA HOLDINGS (PRIVATE) LIMITED			APPELLANT

Versus

JEFFREY MBANJE							1ST RESONDENT

And

MERVIS NGWENYA						2ND RESPONDENT

And

TENDAI GATSI							3RD RESPONDENT

Before The Honourable P Muzofa	:	Judge

For the Appellant		M Baera	(Legal Practitioner)

For the Respondent	D Muzawazi   (Legal Practitioner)

MUZOFA J:

The appellant and respondent are embroiled in a labour dispute. When the matter was placed before me it could not proceed on merits, the respondent raised two preliminary points that the appellant has dirty hands therefore should not be allowed to prosecute its matter. Secondly that the grounds of appeal do not raise questions of law.

Dirty Hands

An order was granted by the arbitrator in the following terms:

“It is ordered that:

The claimants namely Jeffrey Mbanje, Mervis Ngwenya and Tendai Gatsi are entitled to the exclusive use and enjoyment of personally issued vehicles.

The claimants are entitled to disposal of personally allocated vehicles.

The respondent conducts an assessment of the book value of the said motor vehicles and proceed to offer the claimants the right of first refusal to purchase the vehicles after a period of three years if they are second hand vehicle and five years if they are brand new vehicles as per company policy or custom.”

Faced with such an order the appellant had two options either to comply with the order or where it was dissatisfied with the order note an appeal against the award. This court being a creature of statute the Labour Act clearly provides in section 92 E (2) that an appeal to this court does not suspend the decision appealed against. Invariably this means despite the appeal noted by the appellant the award by the arbitrator remained operational. The Act in section 92 E (3) has provided a means for the appellant to address its situation, by applying for a stay of execution. The appellant opted not to exercise this right. In my view the appellant just blatantly ignored the award and the court processes. The appellant’s interest was to appeal to offset the award regardless of the respondents’ interest. Surely the appellant while seeking the protection of the law should be seen to abide by the very law it wants to derive refuge.

The door has not been closed on the appellant to protect its rights the appellant is just being called upon to right its wrong then approach the court. The first preliminary point succeeds. There is no need to address the second preliminary point since the appellant is improperly before the court.

Accordingly the following order is made:

The first preliminary point succeeds. The appellant is improperly before the court.

The appeal be and is hereby struck off the roll.

There is no order as to costs.

Baera & Company, appellant’s legal practitioners

Bachi-Mzawazi, respondent’s legal practitioners