Zimbabwe Cricket Union v Andrew Muzamhindo & Another

IN THE LABOUR COURT OF ZIMBABWE                   JUDGMENT NO. LC/H/315/2013
HELD AT HARARE ON 5th APRIL, 2013                 CASE NO. LC/ H/381/2009
In the matter between



ZIMBABWE CRICKET UNION                                –            Applicant
And

ANDREW MUZAMHINDO                                     –            1st Respondent
And
THE DEPUTY SHERIFF-HARARE                     -              2nd Respondent



Before The Honourable L. Kudya, President
For Applicant      - T.P Machiridza (Legal Practitioner)
For Respondent     - A. Mapanzure (Legal Practitioner)




KUDYA, L.

      This is an application for the urgent stay of arbitral award which was

issued in favor of the 1st Respondent and registered with the High Court

followed by attempted execution by the 2nd Respondent.



      Facts of the case are that the 1 st Respondent hereinafter referred to as the

employee found himself before arbitration on a claim which he had against the

Applicant hereinafter referred to as the employer.         The Arbitrator made an

order in favour of the employee.        Armed with that order, the employee

registered the same with the High Court. After the registration of the award,

execution of the same commenced with the involvement of the Deputy Sheriff

the 2nd Respondent. It is at this stage that the Applicant approached this court
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with an application to have the arbitral award stayed and also an application for

the reinstatement of its appeal against the arbitral award.

       The appeal in question had been dismissed by the Labour Court on the

basis that the employer had not filed its heads on time and also on the ground

that the employer had been absent on the date of set down despite service on it

to attend on that day. The basic thrust of the Applicant’s application is that the

arbitral award was flawed since it awarded the employee damages in foreign

currency yet the claim had occurred during the Zimbabwean dollar era. It is its

argument that since the arbitral award was flawed to that extent it cannot be

made to stand hence its registration and attempted enforcement were all a

nullity. It argued further that since the arbitral award is a nullity to that extent,

nothing estops this court from entertaining this application.



       The Respondents on the other hand argue that, the application for stay of

execution is improperly before the court taking into account the fact that that

the arbitral award had already been registered by the High Court thus

effectively becoming a High Court order which this court had no jurisdiction to

set aside .



       They also argue that, since the application to have the appeal reinstated

came way after the award had been registered by the High Court it is therefore

of no force or effect and it does not put the application properly before the

court. They argue further that, in any event the reinstatement application is

also flawed as it was made way out of the timelines provided by the rules, some

18 months later hence, even if it were merited the inordinate delay attendant to

it as well as the failure to seek condonation first before lodging such an


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application means that there is no appeal before the court, which means that

the application for stay is therefore improperly before this court.



      The Respondents contend further that, even if the application for stay was

properly before the court it is however without merit. This is so because the

arbitral award in question was not appealed against successfully to entitle the

court to hold that execution should be stopped. Further to that, they argue that

the order sought by the Applicants has the effect of a declaration which this

court is not empowered to hand down. In essence they argue that asking this

court to declare that the arbitral award was irregular and of no force or effect

means that effectively this court would be declaring the order null and void yet

the Labour Act which sets out the court’s jurisdiction does not grant it such

powers. In the premises, they prayed that the application for stay of execution

be dismissed with costs on a higher scale as it is an abuse of court process by

the Applicant.



      The powers of the Labour Court are set out clearly in Section 89 of the

Labour Act Chapter 28.1. That section is clear that issuing of declaration orders

is not one of the functions of this court and an application to have exercise of

such powers is clearly outside the mandate of this court.



      Turning to the issue of suspension of orders by the High Court, it is also

clear that the Labour Court is creature of statute and it does not have powers to

overturn the ordered of a court above it, in this case the High Court.        As

correctly observed by the Respondents once an order is registered with the

High Court or Magistrates Court it becomes an order that court. Consequently


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the power to stay that registered order rests on the court which registered the

award in question. The court is satisfied that on this basis alone at the outset

the application is improperly before the court and it should therefore fail.



       The arguments about the nullity or otherwise of the arbitral award are of

no moment in this case more so where there was no proper appeal before this

court at the time of the registration of the award. In any event the court is

satisfied that the unexplained 18 months delay attendant on the matter is in

sync with the Respondent’s argument that this is a desperate attempt by the

Applicant to frustrate the enforcement of the award which by the Applicant’s

conduct is replete with evidence that it never seriously wanted to contravene it.

Over and above it the court notes that the sluggish manner in which the

Applicant conducted self where it defaulted both in the main case and also at

registration of the award smacks of lack of seriousness on the Applicant’s part.

The law is clear that only the vigilant will be protected by it. Applicant can

therefore not cry foul where it has authored its own problems. In a nutshell, it is

clear that instant application is without merit and it should therefore fail.



It is therefore ordered that

The application for stay of execution being without merit be and is hereby

dismissed with costs.



Signed

L. KUDYA --------------------

President Labour Court




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Messrs Manase and Manase –Applicant’s Legal Practitioners

Kantor and Immerman- Respondent’s Legal Practitioners




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