Zimbabwe Commercial Farmers’ Union v Tapiwa Nyamakura

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/ 675/2016
HARARE, 19 SEPTEMBER 2016 &
CASE NO LC/H/APP/286/2016
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/ 675/2016

HARARE, 19 SEPTEMBER 2016 &			CASE NO LC/H/APP/286/2016

4 NOVEMBER 2016

In the matter between:-

ZIMBABWE COMMERCIAL FARMERS’ UNION			APPLICANT

Versus

TAPIWA NYAMAKURA							RESPONDENT

Before the Honourable Murasi J

For the Applicant	P Kawonde

For the Respondent	T D Muskwe

MURASI J:

The applicant seeks an order for stay of execution of the arbitral award of Honourable Dzviti issued on 17 December 2015. This is in terms of section 92 E (3) of the Labour Act [Chapter 28:01]. The application has been made pending the determination of the appeal filed with this Court under Case No. LC/H/15/2016.

The brief facts of the matter are as follows. Respondent was employed by the applicant as one of its managers. Respondent tendered his resignation from employment as he alleged that applicant had not been honouring its duty to pay wages for services rendered. Respondent had been allocated a motor vehicle for use during the subsistence of the employment contract. On resignation, respondent did not hand over the said motor vehicle alleging that he was holding it as a lien pending the payment of his arrear salaries in full by the applicant. The matter ended up in arbitration. The arbitrator was called upon to decide on three issues namely:

a. 	whether the dirty hands doctrine applied in respect of the respondent for holding on to applicant’s motor vehicle.

b. 	the quantum owed by the applicant with respect to arrear salaries and leave days.

c. 	whether or not set-off should apply in respect of the respondent’s alleged salary arrears as against the damages due to applicant for the unlawful withholding of the motor vehicle.

The arbitrator determined that respondent had not approached the tribunal with ‘dirty hands’ as that doctrine did not apply. The arbitrator further ruled that there was no ‘set-off’ in the circumstances. Finally, the arbitrator made the determination that the applicant should pay to the respondent the sum of $8723-33 as arrear salaries. It should be mentioned at this stage that meanwhile, the applicant had made application to the High Court under Case No. HC 2319/15 for the recovery of the said motor vehicle. Applicant’s grounds of appeal seek to have the Court overturn the decision of the arbitrator in respect of his findings on the three Terms of Reference referred to above.

Mr Kawonde for the applicant stated that he abided by the documents filed of record and had nothing to add. Mr Muskwe for the respondent informed the Court that respondent had taken certain steps in executing the arbitral award and lamented the fact that the matter was not being finalised early. Mr Muskwe also submitted that the grounds of appeal were not on points of law but on facts. He further stated that the issue of set-off was not applicable in the present case and that the arbitrator had exercised his judicial discretion properly.

I will proceed to determine first whether the grounds of appeal are on points of law. The first ground of appeal attacks the finding by the arbitrator on the ‘dirty hands’ doctrine. It is my view that a finding whether a legal principle applies to a set of facts in an issue of law. It cannot be said that because the arbitrator then dealt with the facts of the matter, it became an issue to be determined on the facts. The arbitrator had to understand the legal principle involved and apply it to the facts. Whether or not he was correct in coming up with the decision is a legal issue and thus becomes a point of law. The second ground of appeal alleges that the arbitrator disregarded the evidence that was provided leading to a misdirection. The issues raised need to be ventilated in order to arrive at a judicious decision. The last issue of set-off is clearly a point of law. The question of whether the arbitrator was correct in deciding that ‘set-off’ did not apply is a legal issue. I am of the view that applicant has indeed raised ‘triable’ issues which should be considered on appeal.

The main guiding principle in applications of this nature is whether real and substantial justice will be achieved by the granting of the application or refusal to grant it. It is trite that an appellant has a right to appeal and test the correctness of the decision of a lower court or tribunal before being expected to satisfy the judgment appealed against. It is clear that execution of a judgment will negate the right referred to above. A court should always consider whether such an application is bona fide and has not been made with the intention to gain time or harass the other party. The court has to consider the following issues:

The potentiality of irreparable harm to either party.

The prospects of success on appeal

The balance of hardship or convenience

The above legal tenets were confirmed by MAKARAU JP (as she then was) in Old Mutual Life Assurance Company (Pvt) Ltd v Makgatho HH 39-07 where she had this say:

“The position as stated in the decided cases appears to me to be as follows:

1.	 An appellant has an absolute right to appeal and to test the correctness of the decision of the lower court before he or she is called upon to satisfy the judgment appealed against.

2.	Execution of the judgment of the lower court before the determination of the appeal will negate the absolute right that the appellant has and is general not permissible.

3. 	Where, however, the appellant brings the appeal with no bona fide intention of testing the correctness of the decision of the lower court, but is motivated by a desire to either buy time or to harass the successful party, the court, in its discretion, may allow the successful party to execute the judgment notwithstanding the absolute right to appeal vesting in the appellant.

4. 	In exercising its discretion, the court has regard to the considerations suggested by CORBETT JA in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 at 545.

5.	…

6. 	An application for leave to execute pending appeal cannot be determined solely on the basis that the appellant has no prospects of success on appeal, especially where the whole object of the appeal is defeated if execution were to proceed (See Wood N.O. vs Edwards & Anor 1966 RLR 335.).”

What emerged from the oral submissions is that applicant’s approach to the High Court was successful. This means that the High Court determined that the applicant was entitled to the return of the motor vehicle which respondent has in his possession. Mr Muskwe stated that it was respondent’s intention to apply for the reinstatement of the appeal in the Supreme Court. This means that presently there is no appeal against the High Court decision. What is the significance of the decision of the High Court? Without pre-empting what will come out of the appeal before this Court, it means that the decision of the arbitrator in two of the Terms of Reference is clearly appealable. Even though the applicant does not raise the issue in the grounds of appeal, it is doubtful that the arbitrator had jurisdiction to deal with the issue of ‘set-off’ in respect of the motor vehicle. I am of the view that the issue pertaining to the motor vehicle was supposed to be dealt with by the appropriate court which has jurisdiction to deal with it under the rei vindicatio. As stated by ZIYAMBI JA in Joram Nyahora v CFI Holdings Private Limited S-81-14, the Labour Court, and by extension the arbitrator, is empowered to deal with matters brought to it ‘in terms of the Act’. The Labour Act clearly specifies the matters the Labour Court has jurisdiction over. The Learned Judge had this to say at page 7 of the cyclostyled judgment:

“Nor is there contained in section 89 any provision expressly authorising the Labour Court to deal with an application, such as in the instant case, for common law remedy of rei vindicatio. Such applications fall squarely within the jurisdiction of the High Court.”

As already stated elsewhere in this judgment, the High Court has determined that the motor vehicle should be returned to the applicant. Respondent has refused to do this by approaching the Supreme Court on appeal. In this regard I am of the view that applicant has prospects of success on appeal and the balance of convenience favours that interim relief be granted in the present circumstances.

In the result and for the aforestated reasons the Court is of the view that the application ought to be granted.

The court makes the following order:

1. 	The application for interim relief pending the determination of the appeal be and is hereby granted.

2. 	The execution of the arbitral award of Honourable Dzviti be and is hereby stayed pending the determination of the appeal in Case No LC/H/15/16

3. 	Each party to meet its own costs.

Kawonde Legal Services, applicant’s legal practitioners

Muskwe & Associates, respondent’s legal practitioners.