Zimbabwe Anti-Corruption v Servious Kufandada & 25 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/93/2014
HARARE, 10 SEPTEMBER 2013,
CASE NO LC/H/132/2013
6 FEBRUARY 2014 &28 FEBRUARY
JUDGMENT NO LC/H/93/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/93/2014

HARARE, 10 SEPTEMBER 2013, 		   CASE NO LC/H/132/2013

6 FEBRUARY 2014 &28 FEBRUARY

2014

In the matter between:-

ZIMBABWE ANTI-CORRUPTION					APPLICANT

Versus

SERVIOUS KUFANDADA 						1STRESPONDENT

And

ANTHONY GONGA							2ND RESPONDENT

And

VICTOR MASIMBA							3RD RESPONDENT

And

GEORGE CHIVI							4TH RESPONDENT

And

ISHMAEL MUKWASI						5TH RESPONDENT

And

COURAGE NYAMAJIWA						6TH RESPONDENT

And

BESTEN MATOPE							7TH RESPONDENT

And

SONENI CHAVIZHA						8TH RESPONDENT

And

ADAMU WELEMU							9TH RESPONDENT

And

MATHEW SITHOLE							10TH RESPONDENT

And

ISAAC TAKAWIRA							11TH RESPONDENT

And

ANTHONY MAHWAMBA						12TH RESPONDENT

And

CHARLES CHARUMA						13TH RESPONDENT

And

CHARLES SEPE							14TH RESPONDENT

And

ARTWELL MPOFU							15TH RESPONDENT

And

LOVEMORE FINDI							16TH RESPONDENT

And

PATRICK MADIYE							17TH RESPONDENT

And

GEORGE MURWISI							18TH RESPONDENT

And

ESNATH KATSAMBA						19TH RESPONDENT

And

AUGUSTINE MAHWANA						20TH RESPONDENT

And

ROCKIE EMMANUEL MUTUNAMI					21ST RESPONDENT

And

TERRENCE KURWAKUMIRE					22ND RESPONDENT

And

OLIVER MUZHINGI						23RD RESPONDENT

And

FORBES FARAI MUPOTSA					24TH RESPONDENT

And

WELLIE R C KUNYENDA						25TH RESPONDENT

And

FRANCIS CHUMA							26TH RESPONDENT

Before The Honourable L Kudya:   Judge

For the Applicant	Advocate Mpofu (Legal Practitioner)

For the Respondent  J Mambara (Legal Practitioner)

KUDYA J:

This is an application for leave to appeal to the Supreme Court in a matter where this court upheld the point in limine which was raised by the respondent employees against the appellant employer. The point was basically to do with the fact that the appellant employer had appealed to the Labour Court before seeking leave to have the arbitral award which it was appealing against stayed/suspended pending the hearing of the appeal.

Alternatively the respondent employees had argued that if the employer was not seeking leave for the stay of the arbitral award, it should then comply with the award pending appeal so as to give effect to the legal position that an appeal against an arbitral award does not suspend the operation of the award unless a stay has been successfully applied for same. See s 92 E of the Act.

In its judgment of 27 September 2013, this court held that the point in limine was merited. It consequently ordered as follows:

“1.	That all the points in limine being with merit be and are hereby upheld with costs.

2.	The appeal by the appellant is consequently struck off the roll for non-compliance in respects set out by the points in limine.”

Judgment of 27 September 2013 was handed down by Judges MURASI and KUDYA Mrs sitting together but when leave application came, it was inadvertently placed before Judge KUDYA only hence instant judgment is on submissions made before Judge KUDYA only.

It is against this order that the applicants intend to appeal to the Supreme Court. In compliance with rule 36 of the Labour Court Rules, it is imperative that the party wishing to appeal seeks leave to do so from the court which handed down the judgment against which an appeal is sought. It is in this spirit that the applicants brought this application which is the subject of this judgment.

For an applicant to succeed on such an application he/it needs to demonstrate two things. These are mainly that the appeal it intends to make is on a point of law and that there are prospects of success on the appeal on the matter.

In like manner issues of the balance of convenience to either party and the court are also looked into so that ultimately the decision to grant or deny leave gives effect to the interests of justice in the main.

At the commencement of the hearing of the instant application the respondent employees raised objection to the filing of supplementary heads of argument by the applicant relying on rule 19 (6). They thus construed further papers as including even supplementary heads of argument.

In reaction to that, the applicant argued that supplementary heads were distinct from further papers indicated in the rule. It argued that if that were the position then parties could then be precluded from raising points on authority not stated in the papers originally filed of record in a matter.

It is worth pointing out that both on the objection and the rest of the submissions, counsel for both parties cited extensive authority and presented before the court voluminous prepositions therein. The court is therefore indebted to both counsels in that respect. Due to the density of the submissions and the authorities this court has no intention of repeating those as they appear clearly on the face of the record and deserve no repetition at all.

After hearing argument on the objection the court overruled the objection and indicated that the reasons for that over ruling would follow in the main judgment. These are they:-

A reading on rule 19 (6) shows clearly that a party cannot file further papers on the papers after heads are filed. A literal interpretation of this rule would clearly distinguish further papers from further heads of argument. For this simple reason the court is satisfied that s 19 (6) was not intended to oust the filing of supplementary heads of argument. In that respect the court is satisfied that the applicant could safely file same without seeking leave as these did not mean to introduce any new issues but merely to amplify the existent heads. To that extent the objection being without merit, it be and is hereby overruled.

In any event, the objection was of a technical nature to the extent that allowing it would delay the conclusion of the submissions on the merits of the matter. In that respect it was also just and proper that the objection be overruled and matter proceed on merits of application.

Turning now to the main merits of the application basically two arguments were placed before this court by the parties.

On one hand the applicant argued that the conflicting decisions in the Sibangilizwe Dhlodlo v Deputy Sherriff Marondera & Ors HC-H-76-11 and the case of  Kingdom Bank Workers Committee v Kingdom Bank Holdings HC-H-302-11show clearly that there are two approaches to the question of whether pending on appeal the arbitral award should be stayed or not. For practical purposes this presents serious difficulty to the parties before the court who have to decide which authority to rely on in their matter.

That with respect, creates uncertainty in the law and calls for a definite position on the two scenarios which are posited as of now. Stemming from the divergent positions it is imperative that the Supreme Court puts such issues to rest so that there can be certainty in the usage of the law by the litigants.

Besides, to close the door for one party based on a technical point which the Supreme Court can definitely rule on would not in the court’s view be in the interests of justice.

On the other hand, the respondents argument that, legislature made it clear in the rule complained about that appeals to the Labour court do not suspend the operation of the award unless it is stayed. What this presents for practical purposes is a situation where the legislature intention speaks to something different from what the interpreters of the law say it is.

A strict interpretation of the rule would lead to the absurd result that even where facts are deserving, one can be denied relief on the technical ground of the dirty hands principle. The court is therefore inclined to adopt the narrow approach and allow the Supreme Court to deal with the matter and set out a final position which can guide this court and other courts alike.

From a convenience perspective, whilst the leave would not be decisive on the matter, it would at least give the Superior Court a chance to interrogate issues which though technical on the face of it may have serious far reaching consequences if the matter is not heard on the merits and disposed of technically.

For the above reasons, the court is satisfied that instant application is one where it is necessary for the Supreme Court to come in and state the correct position definitively so that, matters are not unnecessarily delayed by such technical niceties.

In the light of the afore going, the court is satisfied that the instant case is a good case for grant of leave but with each party bearing its own costs.

IT IS ORDERED THAT

Application for leave to appeal to Supreme Court being merited, it be and is hereby granted.

Each party to bear own costs.

L KUDYA

JUDGE – LABOUR COURT

Mutamangira &Associates, applicant’s legal practitioners

Mambara &Partners, respondents’ legal practitioners