Court name
Supreme Court of Zimbabwe
Case number
SC 40 of 2005
Civil Application 55 of 2005

Net One Cellular (Pvt) Ltd. v 56 Net One Employees and Another (55/05) (SC 40 of 2005, Civil Application 55 of 2005) [2005] ZWSC 40 (20 March 2005);

Law report citations
Media neutral citation
[2005] ZWSC 40


REPORTABLE (31)

















Judgment No
SC 40/05


Civil Application No
55/05

















NET ONE
CELLULAR (PRIVATE) LIMITED


v (1) 56 NET
ONE EMPLOYEES (2) THE DEPUTY SHERIFF











SUPREME COURT OF
ZIMBABWE


HARARE MARCH 21,
2005








E.T. Matinenga,
for the applicant





T. Biti, for the
first respondents





No appearance for the
second respondent








Before:
CHIDYAUSIKU CJ, in Chambers









The first respondents in this case are employees of the applicant.
I shall refer to the applicant as the employer and the first
respondents as the employees. On 20 May 2004 the employees gave the
employer notice of their intention to go on strike following
a
failure to negotiate a satisfactory salary increase.





On 15 June 2004 the
employees went on strike. Thereafter the employer conducted
disciplinary proceedings in respect of each of
the employees. As a
result of the hearing the employees were dismissed from their
employment. The employees then filed a complaint
of unfair
dismissal with a Labour Officer. The Officer met both parties but
failed to settle the matter through conciliation.
The matter was
thereafter referred to compulsory arbitration in terms of s 98 of the
Labour Relations Act [Chapter 28:01] (hereinafter
referred to as the
Act).





The arbitrator ruled
in favour of the employees and ordered the employer to reinstate the
employees without loss of benefits.
The employer was dissatisfied
with the arbitrator’s determination and appealed to the Labour
Court in terms of s 98(10) of the
Act. Section 98(10) reads:-






“98. (10) An appeal on a question of law shall lie to the Labour
Court from any decision of an arbitrator appointed in terms of
this
section.”






The Labour Court upheld
the determination of the arbitrator and dismissed the appeal.






The employer appealed to the Supreme Court against the decision of
the Labour Court in terms of s 92D of the Act which provides that:-






“An appeal on a question of law shall lie to the Supreme Court from
any decision of the Labour Court.”









That appeal is yet to be heard by the Supreme Court.






Upon the dismissal of the employer’s appeal by the Labour Court the
employees registered the determination of the arbitrator with
the
High Court in terms of s 98(14) and (15) of the Act which provides:-






“(14) Any party to whom an arbitral award relates may submit for
registration the copy of it furnished to him in terms of subsection
(13) to the court of any magistrate which would have had jurisdiction
to make an order corresponding to the award had the matter
been
determined by it, or, if the arbitral award exceeds the jurisdiction
of any magistrates court, the High Court.





(15) Where arbitral
award has been registered in terms of subsection (14) it shall have
the effect for purposes of enforcement, of
a civil judgment of the
appropriate court.”










Following the registration with the High Court a warrant of
execution was issued by the Deputy Sheriff and the employer’s goods
have been attached. At the hearing of this matter the employees
undertook not to sell in execution the attached property pending
this
judgment.





Before launching the
present Chamber application, a similar application had been made to
the High Court for the stay of execution
pending the determination of
the appeal by the employer against the decision of the Labour Court
to the Supreme Court. The application
for the stay of execution was
dismissed by OMERJEE J. In dismissing the application the learned
judge reasoned as follows:-






“As a matter of law the grounds on which an arbitral award may be
set aside were the subject of determination in the case of Catering
Employers Assoc. of Zimbabwe v Zim Hotel and Catering Workers Union &
Anor
2001 (2) ZLR 388(S). At page 391 the Supreme Court stated
as follows:-






‘An arbitral award may be set aside by the High Court only if –






(a) the party making the application furnishes proof that:






(i) a party to the arbitration agreement referred to in Article 7 was
under some incapacity; or the said agreement is not valid
under the
law to which the parties have subjected it or, failing any indication
on that question, under the law of Zimbabwe; or





(ii) the party making
the application was not given proper notice of the appointment of an
arbitrator or of the arbitral proceedings
or was otherwise unable to
present his case; or





(iii)the award deals
with a dispute not contemplated by or not falling within the terms of
submission to arbitration, or contains
decisions on matters beyond
the scope of the submission or arbitration, provided that, if the
decision on matters submitted to arbitration
can be separated from
those not so submitted, only that part of the award which contains
decisions on matters not submitted to arbitration
may be set aside;
or





(iv) the composition of
the arbitral tribunal or the arbitral procedure was not in accordance
with the agreement of the parties, unless
such agreement was in
conflict with a provision of this Model Law from which the parties
cannot derogate, or, failing such agreement,
was not in accordance
with this Model Law.






(b) The High Court finds, that –






(i) the subject-matter of the dispute is not capable of settlement by
arbitration under the law of Zimbabwe; or





(ii) the award is in
conflict with the public policy of Zimbabwe.






Those are the only grounds on which an arbitral award may be set
aside by the High Court.’





I also had regard to
the contents of the judgment of the Labour Court dated 10th
February 2005. Sight must not be lost of the fact that the essence
of the matter with which this application is concerned arises
from an
arbitral award. As such the only basis upon which a superior court
may interfere with an arbitral award is on the grounds
set out in
Article 34(2) outlined above. The grounds upon which the decision
of an arbitrator may be set aside are very limited.
Furthermore,
the applicants did not establish any grounds upon which a superior
court may interfere with the decision made. On
this basis alone I
was not persuaded in the grant of a stay of execution. The issue of
the correctness or otherwise of the quantum is not before me.





That dispute could be
referred back to the Labour Court for clarification.”









The employer noted an appeal against the judgment of OMERJEE J.
That appeal is pending before this Court. In an effort to prevent
the sale in execution of its attached property before the
determination of its appeal against the judgment of OMERJEE J and the
appeal
against the judgment of the Labour Court the applicant filed
the present Chamber application. The relief sought is essentially
that there should be no sale in execution until the two appeals noted
to this Court have been determined. The application is opposed
by
the employees. Mr Biti, for the first respondents, took the
preliminary point that this Court has no jurisdiction to hear the
matter. He argued that the
Chamber application can only be made to
a court with original jurisdiction. This Court only enjoys original
jurisdiction in respect
of applications made in terms of s 24 of the
Constitution. On that basis alone, this application should be
dismissed.






The Chamber application before me is, in effect, an application to
stay the sale in execution of the employer’s property pending
the
hearing by this Court of an appeal against the judgment of OMERJEE J
and the judgment of the Labour Court.





The first issue to be
resolved is whether I have jurisdiction to entertain this Chamber
application? This application is not one
that involves original
jurisdiction. It is ancillary to two appeals this Court is already
seized with. Once this Court is seized
with a matter it has
inherent jurisdiction to control its judgment. See South Cape
Corporation v Engineering Management Services
1977 (3) SA 534 and
the cases referred to in that case. The inherent jurisdiction to
control the court’s judgment includes, in
my view, jurisdiction to
control the court’s process, that is, jurisdiction to determine
whether or not execution of a judgment
should be permitted pending
the hearing of an appeal. I will assume jurisdiction in this case
on that basis. I can also assume
jurisdiction in terms of s 25 of
the Supreme Court Act [Chapter 7:13]. I shall revert to this
proposition later. It is trite
that at common law a party cannot
execute a judgment appealed against, see South Cape Corporation,
supra
. The party wishing to execute despite the appeal can,
however, approach the court a quo, if it has such
jurisdiction, for leave to execute despite the noting of an appeal.
In the present case the employees simply sought
execution after
registering the award without first seeking leave of the court to do
so. The employer sought, unsuccessfully, an
order from the High
Court to stop the execution. The employees, after registering the
arbitrator’s award with the High Court,
should have applied for
leave to execute after the noting of an appeal. In this regard
CORBETT JA, in South Cape Corporation, supra, at pp 544H -545H
had this to say:-






“Whatever the true position may have been in the Dutch Courts, and
more particularly the Court of Holland (as to which see Ruby’s
Cash Store (Pty) Ltd v Estate Marks and Another
1961 (2) SA 118
(T) at pp 120-3), it is today the accepted common law rule of
practice in our Courts that generally the execution
of a judgment is
automatically suspended upon the noting of an appeal, with the result
that pending the appeal, the judgment cannot
be carried out and no
effect can be given thereto, except with the leave of the Court which
granted the judgment. To obtain such
leave the party in whose
favour the judgment was given must make special application. (See
generally Olifants Tin “B” Syndicate v De Jager 1912 AD
377 at p 481; Reid and Another v Godart and Another 1938 AD
511 at 513; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA
589 (AD) At 667; Standard Bank of SA Ltd v Stama (Pty) Ltd
1975 (1) SA 730 (AD) at p 746.) The purpose of this rule as to the
suspension of a judgment on the noting of an appeal is to prevent
irreparable damage from being done to the intending appellant, either
by levy under a writ of execution or by execution of the judgment
in
any other manner appropriate to the nature of the judgment appealed
from (Reid’s case supra a p 513). The Court to
which application for leave to execute is made has a wide general
discretion to grant or refuse leave and,
if leave be granted, to
determine the conditions upon which the right to execute shall be
exercised (see Voet, 49.7.3; Ruby’s Cash Store (Pty) Ltd
v Estate Marks and Another supra
a p 127). This discretion is
part and parcel of the inherent jurisdiction which the Court has to
control its own judgments (cf.
Fismer v Thornton, 1929 AD 17
at p 19). In exercising this discretion the Court should, in my
view, determine what is just and equitable in all the
circumstances,
and, in doing so, would normally have regard, inter alia, to
the following factors:






(1) the potentiality of irreparable harm or prejudice being sustained
by the appellant on appeal (respondent in the application)
if leave
to execute were to be granted;





(2) the potentiality of
irreparable harm or prejudice being sustained by the respondent on
appeal (applicant in the application) if
leave to execute were to be
refused;





(3) the prospects of
success on appeal, including more particularly the question as to
whether the appeal is frivolous or vexatious
or has been noted not
with the bona fide intention of seeking to reverse the
judgment but for some indirect purpose, e.g. to gain time to harass
the other party; and





(4) where there is the
potentiality of irreparable harm or prejudice to both appellant and
respondent the balance of hardship or convenience,
as the case may
be.






See in this connection Ruby’s case, supra a pp 127-8;
also Rood v Wallach 1904 TS 257 at p 259; Weber v Spira
1912 TPD 331 at pp 333-4; Rand Daily Mails Ltd v Johnston
1928 WLD 85; Frankel v Pirie 1936 EDL 106 at pp 114-6; Leask
v French and Others
1949 (4) SA 887 (C) at pp 892-4; Ismail v
Keshavjee
1957 (1) SA 684 (T) at pp 688-9; Du Plessis v Van
der Merwe
1960 (2) SA 319 (O).) Although most of the cases just
cited dealt with the exercise of the Court’s discretion under a
statutory
provision or Rule of Court, the statute or Rule concerned
did not prescribe the nature of the discretion except in broad
general
terms (eg secs 36 and 39 of Proc. 14 of 1902 (T) empower the
Court to give directions as






‘may in each case appear to be most consistent with real and
substantial justice’






and the same general approach would be appropriate to the exercise of
a discretion under the aforementioned rule of practice.”






Authorities clearly
establish that at common law a decision of a lower court in respect
of which an appeal has been noted cannot be
executed upon. It can
only be executed upon after leave to execute has been granted. No
such leave was applied for nor granted
in casu.





On the facts of the
present case, as I have already stated, there was no application to
execute the arbitrator’s determination despite
the noting of an
appeal. It is the employer who sought to stay the execution on the
grounds that an appeal had been noted. In
my view the employer was
entitled to a stay of execution by operation of the law once the
employer noted an appeal.






The arbitrator made a
determination. The employer appealed against that determination in
terms of s 98(10) of the Act. The effect
of the noting of that
appeal was to suspend execution of the arbitrator’s determination
pending a decision of the Labour Court.
When the Labour Court
dismissed the appeal the employer appealed to the Supreme Court in
terms of s 92D of the Act. The noting
of that appeal had the effect
of suspending the judgment of the Labour Court and the arbitrator’s
determination. The only circumstances,
in terms of the Act, where
the noting of an appeal does not suspend a determination in a labour
dispute are set out in s 97 of the
Act which provides as follows:-






“97 Appeals to Labour Court






(1) Any person who is aggrieved by –






(a) any determination or direction of the Minister in terms of
section twenty five, forty, fifty-one, seventy-nine or
eighty-two, or in terms of any regulations made pursuant to
section seventeen;





(b) a determination
made under an employment code in terms of section one hundred and
one
; or





(c) the conduct of the
investigation of a dispute or unfair labour practice by a labour
officer; or





(d) the conduct of any
proceedings in terms of an employment code;






may, within such time and in such manner as may be prescribed, appeal
against such determination or conduct to the Labour Court.





(2) An appeal in terms
of subsection (1) may –






(a) address the merits of the determination or decision appealed
against;





(b) seek a review of
the determination or decision on any ground on which the High Court
may review it;





(c) address the merits
of the determination appealed against and seek its review on a ground
referred to in paragraph (b).






(3) An appeal in terms of subsection (1) shall not have the effect
of suspending the determination or decision appealed against
.





(4) Pending the
determination of an appeal the Labour Court may make such interim
determination in the matter as the justice of the
case requires.”
(emphasis is mine)









None of the appeals in this case were made in terms of s 97(1) of
the Act and thus protected from suspension upon the noting of
an
appeal.





The determination of
the arbitrator was registered with the High Court in terms of s
98(14) and (15) of the Act.










In terms of the Act, when the employees registered the arbitrator’s
award it acquired the same status as a High Court judgment.
A High
Court judgment in respect of which an appeal has been noted is not
executable until the appeal is determined. Execution
before an
appeal is determined is only permissible upon the leave of the court
a quo. The record clearly shows that no such leave was
granted. Consequently the arbitrator’s determination, by
operation of law,
is not executable. What the High Court considered
and adjudicated upon was an application to stay execution which stay
of execution
was, in my view, already in existence by operation of
law, having been triggered by the noting of an appeal. I have
serious doubts
about the correctness of the judgment of OMERJEE J in
refusing to grant the stay of execution which was already in
existence by operation
of law. I would have no difficulty if he had
come to the same conclusion in an application for leave to execute
pending appeal
and upon consideration of the relevant factors in such
an application. I leave these issues open as they have to be
determined
by this Court when it determines the appeal against the
judgment of OMERJEE J.






Section 25 of the
Supreme Court Act provides as follows:-






“25 Review powers





(1) Subject to this
section, the Supreme Court and every judge of the Supreme Court shall
have the same power, jurisdiction and authority
as are vested in the
High Court and judges of the High Court, respectively, to review the
proceedings and decisions of inferior courts
of justice tribunals and
administrative authorities.





(2) The power,
jurisdiction and authority conferred by subsection (1) may be
exercised whenever it comes to the notice of the Supreme
Court or a
judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision notwithstanding
that
such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.





(3) Nothing in this
section shall be construed as conferring upon any person any right to
institute any review in the first instance
before the Supreme Court
of a judge of the Supreme Court, and provision may be made in rules
of court, and a judge of the Supreme
Court may give directions
specifying that any class of review or any particular review shall be
instituted before or shall be referred
or remitted to the High Court
of determination.”






The Deputy Sheriff
has issued a warrant of attachment and intends to remove and sell in
execution the employer’s property on the
basis of a judgment that
has been appealed against therefore not executable. This is an
irregularity that calls for rectification
in terms of s 25 of the
Act.





For the avoidance of
doubt I do not wish to be understood to be expressing the view that
the employer’s appeal has merit. I
am simply making the point
that a judgment appealed against is not executable without the leave
of the court.





In the result the
warrant of the Deputy Sheriff to attach the applicant’s property
which appears on page 84 of the record is set
aside. To that extent
the application succeeds. Costs follow the result and the employees
are ordered to pay the costs.

































Gula-Ndebele and
Partners
, applicant’s legal practitioners





Honey &
Blanckenberg
, first respondent's legal practitioners