This article is based on Chapter 3 of the “Contemporary Employment Law in Zimbabwe, First Edition”.
1. Introduction
Several types of reliefs may be sought in the Labour Court of Zimbabwe. In some cases, the court may issue an order for the payment of a sum of money or the performance of a specific act such as reinstatement. However, the party against whom the order is made may seek a stay of execution to suspend the enforcement of the order pending an appeal or other legal process. This is usually the case where money is involved. If the stay of execution application is not granted, an aggrieved employee may attach and sell the employer’s property. This is so because the noting of an appeal at the Labour Court does not suspend the operation of the order or arbitral award being appealed against.[1] This section provides a guide on the procedure for obtaining a stay of execution as well as the rules applicable in the Labour Court of Zimbabwe. This application is necessary to prevent irreparable harm from happening to litigants.
1.1. The relevant rule
The relevant rule providing for a stay of execution in the Labour Court is rule 41 which provides as follows:
“(1) Pending the determination of an appeal the Court or a Judge sitting in chambers may, upon application, order a stay of the execution of a decision order or determination appealed against.
(2) In granting a stay of execution, the Court or Judge may fix any such terms as to security for the due performance of an arbitral award, decision, order or determination or any variation thereof as the Court or the judge deems fit.”
The rules thus envisage that an applicant would have first appealed to the court and then apply for a stay of execution of the order or award being appealed against. In considering the application, the judge may order such terms as the judge sees fit.
The general rule in the Zimbabwean jurisdiction is contained in Ndlovu v Zimbabwe Grain Bag[2] wherein the court stated that litigation should run its full course before a litigant can execute a judgement. The general principle is therefore that a stay of execution must be granted thus allowing appeals to be heard.
1.2. Grounds for a Stay of Execution
A stay of execution may be granted on various grounds, including:
- Appeal: The party against whom the order is made may appeal to a higher court, and if there is a likelihood of success on appeal, the court may grant a stay of execution to preserve the status quo pending the outcome of the appeal.
- Irreparable harm: The party seeking a stay of execution may argue that irreparable harm will be suffered if the order is enforced pending an appeal or other legal process. For instance, if the order requires the payment of a hefty sum of money, and the party is unable to pay, enforcement may result in the loss of assets or bankruptcy.
- Extraordinary circumstances: The court may grant a stay of execution if there are special circumstances that warrant it. For example, if the party against whom the order is made is seriously ill or has suffered a bereavement, enforcement may be stayed to allow them time to recover.
1.3. Procedure for Obtaining a Stay of Execution
To obtain a stay of execution in the Labour Court of Zimbabwe, the following procedure must be followed:
- File Notice of Appeal: If the party against whom the award or determination is made intends to appeal, they must file a notice of appeal within 21 days from the date of the order. The notice of appeal must state the grounds of appeal and relief sought.[3] The applicant must fulfil the service requirements for the appeal.
- File Application for Stay of Execution Pending Appeal: Once the notice of appeal has been filed, the party seeking a stay of execution must apply for a stay of execution of the order being appealed against with the Registrar of the Labour Court. The application must be supported by an affidavit setting out the grounds for the stay and any evidence in support thereof.[4]
- Serve Application: The application for a stay of execution must be served on all parties to the proceedings.[5] Notably, service can now happen online.
- The parties must file their heads of arguments.
- Hearing: The Registrar will set down the application for hearing before a judge of the Labour Court. The judge will consider the application and any submissions made by the parties before deciding on whether to grant or refuse the stay. As indicated above, labour court hearings can now happen online.
- Conditions: If a stay of execution is granted, it may be subject to conditions, such as payment of security or compliance with certain obligations.[6] In Zimbabwe Open University v Magaramombe & Another SC 20 / 2012, the court ordered the stay of execution but also ordered that the property belonging to the University remain under attachment pending the determination of the appeal. It further ordered that the University remain in possession of the attached property pending the determination of the appeal.
- Duration: A stay of execution may be granted for a specified period or until further order of the court upon the exercise of judicial discretion. In the Magaramombe case, discussed above, the stay of execution was to remain in place until the appeal is determined.
1.4. Factors to be considered
Like any other applications discussed thus far, before the granting of an application for a stay of execution, a court considers several factors. The goal here is to ensure that frivolous applications are not granted.
One factor that the court considers is the risk of irreparable harm. This would be the case if the property of the Applicant were to be executed and later the main appeal is decided in the Applicant’s favour. In the Magaramombe discussed above, the court reasoned that the fact that the Respondent was employed and will not be seriously disadvantaged by the delay of the sale in execution of the applicant’s property meant that he would not suffer irreparable harm.
Another factor considered by the court is the issue of the prospects of success of the main appeal. This was correctly held in the South African case of Ntshangane v Specialty Metals CC(1998) 19 ILJ 1008 (LC).[7] This factor is also decisive in Zimbabwean labour jurisdiction wherein a perusal of caselaw shows the same attitude of the courts.[8] The prospects of success of the main appeal is an important aspect when a court is deciding on whether or not to grant a stay of execution. If prospects of success are high, an application for a stay of execution may be granted on that factor alone. If the prospects are low, the application may be dismissed.
The two factors may not necessarily be proven equally. The court exercises its judicial mind on the factors in question and comes up with a verdict that is appropriate under the circumstances. The relationship between these two factors was explained in the City of Harare v Petros G Chamisa LC/H/43/14 as follows:
“The two elements referred to, however, must be looked at together. In some cases, the requirement of prospects of success can be so decisive that the application for a stay of execution can be granted or refused on that basis alone. In other cases, the aspect of potential prejudice, should the contested award be executed, can become a decisive factor.”
It is thus important for parties dealing with a stay of execution application to consider these factors at the point of drafting their papers i.e., the founding affidavit as well as the response affidavit. Failure to carefully consider these factors can result in a waste of costs and court time.
1.5. Bottom line
An application for a stay of execution is an important procedural route that allows a party to suspend the enforcement of an order pending an appeal or other legal process. In the Labour Court of Zimbabwe, a stay of execution may be granted after considering several factors, including the prospects of success of the appeal, risk of irreparable harm, and any other exceptional circumstances. To obtain a stay of execution, the party seeking it must follow the prescribed procedure, which involves filing an application with the Registrar and serving it on all parties to the proceedings.
[1] Section 48(2) of the Labour Act reads: “A notice of appeal in terms of subsection (1) shall not suspend the operation or effect of the decision appealed against.”
[2] Ndlovu v Zimbabwe Grain Bag HC 1039/02
[3] See rule 19 of the Labour Court Rules, 2017.
[4] See City of Harare v Petros G Chamisa LC/H/43/14 wherein it was held: “The Applicant filed an appeal against the arbitral award on the 17th of July 2013, which appeal is still pending. The noting of the appeal was followed by the filing of this application on the 30th of July 2013.”
[5] See PART II of the Labour Court Rules, 2017.
[6] See rule 41 of Labour Court rules.
[7] The court said: “… To succeed in stay proceedings the applicant must satisfy the court that it has good prospects of success in the pending matter…It is for whoever relies on the pending review argument to instil a well-grounded conviction in the mind of the court that the prospects of success of the review are reasonably good…”
[8] Beauty Chibaya-Nyamasoka v Edward Ruzive and 2 Others HC 2119/15.
good read