Ingwebu breweries loses court appeal

Ingwebu breweries loses court appeal
Published: 21 July 2015 (1459 Views)

THE BULAWAYO labour court has dismissed an appeal by Ingwebu breweries in a case in which the brewery was challenging an arbitral award in favour of its former manager Makhosini Khumalo.

Management had earlier on failed to attend the arbitral hearing involving a deadlock over a retrenchment package.

The appellant, Ingwebu breweries was not in attendance at the arbitration hearing where the respondent Khumalo attended and a default award was handed in favour of the employee.

In giving the default award, the arbitrator said Ingwebu Brewries had failed to attend the hearing despite having been properly notified to attend.

"The claimant applied for a default award which is hereby granted as below in accordance with its prayer."

Ingwebu through their defense counsel took up the matter on the grounds that the arbitrator erred at law in dealing with the matter when he had no jurisdiction to do so.

"The labour officer's conciliation was null and void as the conciliation should have been by a designated agent. The referral to the arbitrator was therefore tainted with illegality, rendering the process null and void," said the appellant's defence
counsel.

The appellant also indicated that the arbitrator failed to follow Article 25 (C) of the Arbitration Act, Chapter 7:02 and so erred at law by not considering the matter on the merits despite the appellant's absence.

"The arbitrator erred at law by going beyond his terms of reference. All he was asked to do was to determine whether or not there was a deadlock on retrenchment package negotiations. The arbitrator erred at law by going outside his mandate, the matter being one for retrenchment, at law he is not a
retrenchment authority and so could not assume that role."

However in his ruling Labour Court judge Evangelista Kabasa dismissed the matter with costs.

"I do not think the fact that the grounds of appeal zeroed in on the merits and not the fact that the appellant was not heard changes anything.

"In any case the absence of the appellant led to the arbitrator's failure to address his mind to all the issues. I can therefore safely say "but for the appellant's absence at the hearing, the arbitrator would have heard submissions and applied his mind to the merits of the matter," said Justice Kabasa.

She said the impropriety of the decision was not the deciding factor regarding the appropriate recourse available to the appellant, adding that the Ingwebu breweries loses court appeal important consideration was the fact that this was a default judgment, which could not be appealed against.

"I must say I also considered the undesirability of allowing appeals against default judgements as I am of the view that this may open flood gates for litigants "ignoring" arbitration hearings and then approaching the Labour Court on appeal arguing that the award is bad at law anyway and should therefore not be allowed to stand," Kabasa ruled.

She added; "I earlier on posed a question which I said I would answer after looking at the two Supreme Court judgments. The question being, can one appeal against a default judgment if they show that the judgment is bad at law and cannot stand? The answer is no. I do not see this as a valid exception to the precedent set by the Supreme Court decisions, to the effect that one cannot
appeal against a default judgment."

"In the result, the appellant should seek the rescission of the default judgment. The appeal is accordingly dismissed, with costs," he ruled.

- Byo24News

Tags: Ingwebu,
 0

You May Like These Videos

Comments

There are no comments.

Latest stories

PHOTOS: Job Sikhala becomes an instant internet joke

by Social media | 03 October 2019 | 148 Views

America says it is worried about Zimbabwe

by Mandla Ndlovu | 03 October 2019 | 173 Views

Madinda Ndlovu to be discharged tomorrow

by Staff reporter | 03 October 2019 | 124 Views

What are behavioral disorders and how can they be managed?

by Temba Munsaka | 03 October 2019 | 127 Views

Government speaks on Robert Mugabe's body parts

by Mandla Ndlovu | 03 October 2019 | 206 Views

Zacc recovers $100m property from looters

by Staff reporter | 03 October 2019 | 125 Views

WATCH: Mnangagwa apologises for destroying Zimbabwe satire

by Mandla Ndlovu | 03 October 2019 | 115 Views

Mphoko's application for release of passport dismissed

by Staff reporter | 03 October 2019 | 93 Views

Zanu-PF restructuring exercise begins

by Staff reporter | 03 October 2019 | 94 Views

Petrotrade declares $1.5 million dividend

by Staff reporter | 03 October 2019 | 85 Views

MSU, Zupco seal bus deal

by Staff reporter | 03 October 2019 | 122 Views

Mnangagwa to open ZMF conference

by Staff reporter | 03 October 2019 | 105 Views

High Court sets EcoCash hearing date

by Staff reporter | 03 October 2019 | 101 Views

Mphoko barred from leaving Zimbabwe

by ZimLive | 03 October 2019 | 105 Views

CIO agents monitor Jonathan Moyo in Kenya

by Mandla Ndlovu | 03 October 2019 | 306 Views

Acie Lumumba targets criminals around Mnangagwa

by Mandla Ndlovu | 03 October 2019 | 271 Views

$100 limit for cash-out transactions

by Staff reporter | 03 October 2019 | 205 Views

ANC starts anti-sanctions campaign

by Staff reporter | 03 October 2019 | 140 Views

ZESN calls for political parties regulation

by Staff reporter | 03 October 2019 | 123 Views

We've no forced labour evidence on Zimbabwe diamonds, says US Embassy

by Staff reporter | 03 October 2019 | 135 Views

Ex-ZPC board chairman freed on bail

by Staff reporter | 03 October 2019 | 122 Views

Cyber Bill seeks to safeguard citizens

by Staff reporter | 03 October 2019 | 104 Views

Cassava launches Vaya tractor services

by Staff reporter | 03 October 2019 | 137 Views

MDC Alliance boycott slammed

by Staff reporter | 03 October 2019 | 85 Views

10-man Bulawayo Chiefs stun Harare City

by Staff reporter | 03 October 2019 | 109 Views

Zimbabwe has a reputational problem, says US

by newzimbabwe | 03 October 2019 | 118 Views

MDC Alliance walk of shame

by Nduduzo Tshuma | 03 October 2019 | 137 Views

MDC councillors want suspension of Cowdray Park projects

by Staff reporter | 03 October 2019 | 107 Views

RBZ floats $300m additional TBs

by Staff reporter | 03 October 2019 | 100 Views

Teenagers rob soldier

by Staff reporter | 03 October 2019 | 116 Views

Duo rape corpse, get death sentence

by Staff reporter | 03 October 2019 | 122 Views

Mnangagwa to fly out for the zenith times

by Staff reporter | 03 October 2019 | 100 Views

Chamisa's MPs approach court to reverse 5 months allowance garnish

by newzimbabwe | 03 October 2019 | 69 Views

Zimra official forges Customs papers

by Staff reporter | 03 October 2019 | 53 Views

Zifa courts two nations for Warriors' friendlies

by Staff reporter | 03 October 2019 | 40 Views