Zimbabwe Open University v Gideon Magaramombe and Deputy Sheriff Harare N.O.

The respondent, a former employee of the appellant, was granted an arbitral award on 10 January 2011 declaring his termination unlawful and ordering reinstatement or damages. The appellant appealed to the Labour Court and applied for suspension of the award pending the appeal. Before this was heard, the respondent sought quantification of damages, which the Arbitrator granted on 22 August 2011, awarding $77,302.00. The appellant appealed this second award on 22 September 2011 and applied for suspension. The respondent simultaneously applied to the High Court for registration of the award. On 1 November 2011, the Labour Court granted an interim determination suspending execution of the award pending the appeal, believing the application was unopposed. The High Court registered the award on 15 November 2011. The respondent then filed for rescission of the interim determination on 2 December 2011 but took out a writ of execution on 11 January 2012 before this was determined. The appellant urgently applied to the High Court to suspend the writ on 27 January 2012, which was dismissed as not urgent on 1 February 2012. The appellant appealed, and the Chief Justice granted an interim order suspending execution on 22 February 2012. On 18 January 2013, the Labour Court rescinded its 1 November 2011 interim order. The respondent then sought to introduce this rescission as further evidence on appeal.

• Whether the order of rescission of the Labour Court's interim determination constitutes 'further evidence' that could be adduced on appeal
• Whether evidence that came into existence after the decision appealed against can be admitted as further evidence under Rule 39(4) of the Rules of the Supreme Court
• Whether the Labour Court had jurisdiction to grant an interim determination suspending an arbitral award before the High Court registered it
• Whether a subordinate court (Labour Court) could interfere with processes of the High Court through its interim determination
• The proper test and requirements for admitting further evidence on appeal

The application to lead further evidence was dismissed with costs.

Evidence that was not in existence at the time the decision appealed against was made cannot constitute 'further evidence' for purposes of Rule 39(4) of the Rules of the Supreme Court. The first requirement of the test for adducing further evidence on appeal - that the evidence must have been available but not obtainable with reasonable diligence at trial - presupposes that the evidence existed at the relevant time. Once it is established that evidence sought to be adduced did not exist when the issue was determined, there is no need to consider the other requirements of the test. The Labour Court, when seized with an appeal against an arbitral award, has jurisdiction to grant an interim determination suspending the enforcement of that award, even before the High Court registers it, and such suspension renders the award ineffective for purposes of registration.

The Court made observations about the nature of the High Court's function in registering arbitral awards, describing it as a 'quasi-administrative function.' The Court also commented that the respondent's proposition that the Labour Court, as a subordinate court, had no power to grant an interim determination that would interfere with High Court processes was 'startling.' The Court noted that the Labour Court was in the best position to decide whether the appeal against the arbitral award had prospects of success, being the court seized with that appeal. The Court observed that at the time the High Court purported to register the award, 'there was in fact no award to register' because it had been suspended by a court with proper jurisdiction.

This case is significant in Zimbabwean civil procedure for clarifying the strict temporal requirements for admitting further evidence on appeal. It establishes that evidence coming into existence after the decision appealed against cannot qualify as 'further evidence' under the Rules, regardless of its relevance to the underlying issues. The case also addresses important questions of concurrent jurisdiction between the Labour Court and High Court in matters involving arbitral awards, confirming that the Labour Court's jurisdiction to suspend an award it is reviewing on appeal is not subordinated to the High Court's administrative function of registering such awards. This preserves the Labour Court's ability to effectively manage appeals before it and grant appropriate interim relief.