Category: Labour Court Procedure

This article is based on Chapter 3 of the “Contemporary Employment Law in Zimbabwe, First Edition”.

1.1.         Introduction

The Labour Court plays a crucial role in protecting the rights of workers and ensuring that labour laws are upheld. In some cases, urgent chamber applications may need to be made to the court to address pressing labour issues.^[1] An urgent chamber application is a request made to the court for an urgent hearing of a matter that cannot wait for the normal court process. The position regarding urgent applications is outlined in Document Support Centre [Pvt] Ltd v Mapuvire^[2] as follows:

“Urgent applications are those where, if the courts fail to act, applicants may well be within their rights to suggest dismissively to the court that it should not bother to act subsequently, as the position would have become irreversible to the prejudice of the applicant.”

Such applications are thus usually made in cases where there is a risk of irreparable harm or where there is a need for urgent relief. Urgent chamber applications are as a result dealt with expeditiously.

1.2.         The Relevant rule

Rule 18 outlines what must happen if a party is facing an urgent labour dispute and they feel compelled to urgently approach the Labour Court for relief. A party is required to apply to the court and indicate that the matter is urgent.^[3] The application must be accompanied by an affidavit in which the applicant outlines the urgency^[4] of their dispute.^[5] If a lawyer is representing the applicant, it is expected that a certificate of urgency is filed by the lawyer. Once an urgent matter has been received by the Registrar, the rules require that the matter be brought to the attention of the judge.^[6]

A judge may then direct that the application be served on the Respondent(s) upon receiving the application from the Registrar.^[7] Rule 18 (5) is quite robust as it allows a judge to ensure that a matter is heard in a manner that the judge considers appropriate. The provision is in our view more robust and highly suits the labour dispute resolution process as it ensures that disputes are resolved as soon as practicable in tandem with the court’s position Document Support Centre [Pvt] Ltd v Mapuvire cited above.

1.3.         What constitutes urgency?

What constitutes urgency has been defined and elaborated by the courts.^[8] It entails that the Applicant must not delay in the enforcement of their rights. This can best be explained by the South African case of Workforce Staffing (Pty) Ltd v Sadan and Others in which the employer had to hire a private investigator to ascertain if its former employees were violating a restraint of trade agreement entered between the parties. Immediately after the violation was confirmed the Applicant sought recourse on an urgent basis. The court recognized the urgency of the matter under that circumstance.^[9] It also recognised that a restraint of trade enforcement is generally an urgent matter.

It is crucial to note that urgent chamber applications should only be made in cases where there is a genuine need for urgent relief.^[10] The court will not grant such applications if they are frivolous or vexatious. It is also essential to ensure that all the necessary documents and evidence are provided to the court when making such applications.

In Secretary for Higher and Tertiary Education v College Lecturers Association of Zimbabwe & 14 Others,^[11] the court argued that there was no urgency in the matter because the applicant was aware of a judgement that became the subject of urgency for more than a year. Prior knowledge that a matter is urgent and not doing anything about it removes the urgency of the case. Urgency that is self-created by the applicant will not be supported by the courts. In Jiba v Minister of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) paragraph 18, it was remarked that “it is equally trite that an applicant is not entitled to rely on an urgency that is self-created when seeking a deviation from the rules”.

Further, it is noted that an urgent application does not work where there is a proper alternative remedy available. In Maphalle v National Heritage Council and Others,^[12] the Labour Court of South Africa dismissed an urgent application on the basis that the applicant had an alternative remedy in the form of unfair dismissal proceedings.

Prejudice against the applicant is not the only factor that may allow for the granting of an urgent application. It has been held that the urgency must not only come from prejudice that the applicant may suffer. The court must be put in a position where it is aware that the matter cannot wait.^[13]

1.4. Circumstances that may warrant an urgent application.[14]

There are several situations where an urgent chamber application may be an appropriate procedure to make use of in the Labour Court of Zimbabwe. Each case will depend on its circumstances, but arguably, the following circumstances may warrant the procedure of an urgent chamber application:

1. Relief that is Interdictory or declaratory in Nature

An interdict is an order granted by the court to prevent a party from doing something. The Labour Court is not statutorily allowed to grant interdicts or declaratory orders in the manner provided for in the High Court Act. This does not however preclude the court from issuing relief that is interdictory and declaratory in nature.[15] In the labour context, interdictory and declaratory reliefs may be used to prevent an employer from acting against an employee in a manner that may be harmful or discriminatory.^[16] An employee who has been unfairly dismissed may seek relief to prevent the employer from replacing him or her before the dispute has been resolved. In the same vein, the employer may want to urgently stop an employee from working for a competitor in violation of a restraint of trade agreement.[17] Every case will depend on its facts.

Urgent reinstatement

In some cases, an employee may seek urgent reinstatement if they have been unfairly dismissed or suspended from work. This may be necessary if the employee is facing financial hardship or if there is a risk of irreparable harm. In such cases, an urgent chamber application may be made to the court to seek an order for immediate reinstatement pending the finalisation of the dispute.

Urgent payment orders

An urgent payment order is a request that can be urgently made to the court for an order to compel an employer to pay outstanding wages or benefits owed to an employee. This may be necessary if the employee is facing financial hardship or if there is a risk of irreparable harm. An urgent chamber application may be made to the court to seek an order for immediate payment pending the finalization of the dispute.

 Urgent injunctions

An injunction is an order granted by the court to prevent a party from doing something or to compel them to do something. In the labour context, injunctions are often used to prevent an employer from taking action that may be harmful or discriminatory towards an employee. For example, an employee who has been subjected to sexual harassment may seek an injunction to prevent the employer from continuing such conduct. Further, an employee may urgently want to compel a LO or a DA to finalise a dispute.

1.5.         Bottom line

Urgent chamber applications play a crucial role in ensuring that urgent labour issues are addressed promptly by the Labour Court of Zimbabwe. These applications should only be made in cases where there is a genuine need for urgent relief and all necessary documents and evidence should be provided to the court. The court will deal with such applications expeditiously to ensure that justice is served.

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[1]              In Dilwin Investments [Pvt] Ltd v Jopa Enterprises Co Ltd HH 116/98 the court said: “A party who brings proceedings urgently gains a considerable advantage over persons whose disputes are being dealt with in the normal course of events. This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants. For instance, where, if it is not afforded, the eventual relief will be hollow because of the delay in obtaining it.”

[2]              Document Support Centre [Pvt] Ltd v Mapuvire 2006 [2] ZLR 240 [H].

[3]              Rule 18(1) of the Labour Court Rules, 2018.

[4]              The importance of an affidavit in urgent applications was explained in Solidarity obo Members and Others v SEESA (PTY) Ltd (J 37/22) [2022] ZALCJHB 111 wherein the South African Labour Court noted that a case of urgency must be shown in the founding affidavit failure of which the application must fail.

[5]              Rule 18(2) of the Labour Court Rules, 2018.

[6]              Rule 18(3) of the Labour Court Rules, 2018.

[7]              Rule 18(4) of the Labour Court Rules, 2018.

[8]              See Kalayi Sikhaphakhapha Njini & Berthilde Juliet Njini v Solwayo Ngwenya and Bulawayo City Council HB 190/11 where it was held that: “The court can only exercise its discretion in determining the urgency of the matter at hand and that discretion can only be exercised on the basis of facts.”

[9]              See Workforce Staffing (Pty) Ltd v Sadan and Others (J488/23) [2023] ZALCJHB 107 on paragraph 13 wherein the court observed that: “Clearly, the applicant did not rest on its laurels when its letter to the third respondent was not favoured with the response. It went ahead to contract the services of the private investigator and his findings enabled it to launch this application. In my view, the respondent’s contention that urgency has been squandered by the dilatory conduct on the part of the applicant is devoid of merit. I, accordingly, accept that the matter is urgent and deal with it as such.”

[10]             Document Support Centre [Pvt] Ltd v Mapuvire 2006 [2] ZLR 240 [H].

[11]             Secretary for Higher and Tertiary Education v College Lecturers Association of Zimbabwe & 14 Others LC/H/547/13.

[12]             Maphalle v National Heritage Council and Others (J 929 / 2022) [2022] ZALCJHB 99.

[13]             See Dexprint Investments (Pvt) Ltd v Ace Property and Investments HH 120/02.

[14]             We have deliberately used the word “may” in this subsection because the scenarios we discuss herein are hypothetical but not necessarily remote.

[15]             In TN Harlequin Luxaire Limited V Mberikunashe Masvimbo and 14 Others SCB 84-22 it was held: “While s 14 of the High Court Act captures this remedy in its broadest and classical form as a “gentle order” which may be issued with or without any consequential relief, there is absolutely no doubt in my mind that the Labour Court in its daily operations does routinely issue declaratory orders, holding, for example, that an employee has been wrongfully dismissed or certain actions constitute unfair labour practices and then proceeding to grant consequential relief.” (Own Emphasis).

[16]             In Chris Stylianou (2) Fred Driver and Sons (Private) Limited (3) D.R. Hendry (Private) Limited v Moses Mubita and 25 Others SC 7/17 it was argued that the Labour Court of Zimbabwe being a creature of statute does not have the powers to issue an interdict.

[17]             See Workforce Staffing (Pty) Ltd v Sadan and Others discussed above.

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:

1. 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.
2. 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.
3. 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:

1. 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.

2. 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]

3. 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.

4. The parties must file their heads of arguments.

5. 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.

6. 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.

7. 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.

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[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.