award https://old.zimlii.org/taxonomy/term/9596/all en San He Mining Zimbabwe (Private) Limited v Magwenzi & 2 Others (HH 439-19, HC 4944/19 REF CASE NO. HC 2466/19) [2019] ZWHHC 439 (19 June 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/439 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>SAN HE MINING ZIMBABWE (PRIVATE) LIMITED</p> <p>versus</p> <p>ALEC MAGWENZI</p> <p>and</p> <p>RUNAKO MARODZA AND OTHERS</p> <p>and</p> <p>THE SHERIFF FOR ZIMBABWE. NO.</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE 18 &amp; 19 June 2019</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>T Chagudumba</em> with <em>B Hwachi</em>, for applicant</p> <p><em>C Chinyama</em>, for respondents</p> <p> </p> <p> </p> <p>            TAGU J: The relief sought by the applicant on an urgent basis in this case is couched in the following terms-</p> <p>      ‘‘TERMS OF FINAL ORDER SOUGHT</p> <ul> <li>That you show cause why a final order should not be made in the following terms:-</li> </ul> <ol> <li>That the default judgment granted by the Honourable Mrs Justice Tsanga in the above Honourable Court in Case Number HC 2466/14 on the 17th May 2019 and any writ of execution issued pursuant thereto be and is hereby stayed pending the final outcome of the application for rescission of judgment to be made by the Applicants in the Labour Court under case No. LC/H/APP/382/19.</li> <li> </li> </ol> <p>INTERIM RELIEF SOUGHT</p> <ul> <li>Pending conformation or discharge of this Provisional Order, the Applicant is granted the following interim relief;</li> </ul> <ol> <li>The 3rd Respondent, or his lawful deputy, be and is hereby ordered not to remove Applicant’s property from Tengenenge Farm, Guruve pending confirmation of this order.</li> <li>There shall be no order as to costs.</li> </ol> <p>SERVICE OF PROVISIONAL ORDER</p> <ol> <li>Applicants’ legal practitioners are hereby authorized to serve the provisional order on the respondents.”</li> </ol> <p>            The facts as appears from the papers as well as submissions by the parties’ counsels are that on the 22nd of February 2019 the applicant was served by the Sheriff for Zimbabwe to appear before the Labour Officer A Magwenzi on the 4th of March 2019 at 0900hrs. The Sheriff’s return of service reads as follows-</p> <p>“Notice of set down for Respondent served on a male adult – a Chinese National who received service at the address for service. He refused to identify himself by name at 13:00 hrs setdown 04/03/19 at 09hrs.”</p> <p>            On the 4th of March 2019 the applicant failed to appear before the labour Officer. The first respondent then obtained an order by default before the labour Court. The first respondent then approached this court and registered the labour court order as an order of this court for enforcement purposes. The order was granted as unopposed in chambers. A perusal of the file shows that the applicant was served with a Chamber application for registration of the arbitral award but chose not to file a notice of opposition. I say so because the certificate of service in HC 2466/19 reads as follows:-</p> <p>       “I JONATHAN GATSI a legal clerk in the employ of MESSER’S CHINYAMA AND PARTNERS, the legal practitioners of record for the Applicant do hereby certify that on the 25th of March 2019, at 12:01hrs I served a copy of chamber application upon Solomon Kanyangara a security guard in the employ of the 1st Respondent who acknowledged receipt by signing the chamber application.</p> <p>DATED AT HARARE THIS 16th Day of April 2019</p> <p>                                                                                 JONATHAN GATSI</p> <p>I, CHARLES CHINYAMA, a legal practitioner of record for the Applicant do hereby certify that I have satisfied myself by personal enquiry of JONATHAN GATSI who is a responsible person in my employ that the service of the aforesaid document has been effected.</p> <p>DATED AT HARARE THIS 16th DAY OF APRIL 2019.</p> <p>                                                                               CHARLES CHINYAMA”</p> <p> </p> <p>Following the default order which was again granted by this Honourable Court referred to above the first respondent proceeded to instruct the third respondent to attach applicant’s goods to satisfy the order against applicant. To that end the third respondent attended at applicant’s mine in Guruve and prepared an inventory of applicant’s movable goods at the said premises thus judicially attaching them for sell. The removal of the goods was penciled for the 12th of June 2019 as the Sheriff had already attended at applicant’s mine and inventoried applicant’s property. This attachment then jolted the applicant who was in deep slumber to file the present application for stay of execution as well as an application for rescission of the judgment granted by this court.</p> <p>The applicant’s basis for the applications being that it did not see any of the court papers in relation to this matter. It only became aware of the case when applicant’s property was attached on the 7th of June 2019 when it was advised that the Sheriff was attaching applicant’s property. It then filed the present application on the 11th June 2019. It further argued that the court orders which were granted in default were erroneously granted as the first respondent’s lawyer Charles Chinyama had no right of audience before the court since he did not hold a valid practising certificate and that it was not served with notices of set down in both the Labour Court and the High Court.</p> <p>At the hearing of this matter Mr Charles Chinyama produced his practicing certificate for the year 2019 that had initially been withheld by the Law Society of Zimbabwe. He raised three preliminary points the major one being that this matter was not urgent as the applicant was aware of proceedings since 28th June 2018 when the draft ruling was made on behalf of the respondents but sat on its laurels until the property was attached. He therefore submitted that the applicant did not enjoy any prospects of success on the application for rescission. According to him urgency in this matter was self-created. He prayed that this application be dismissed with costs on an attorney and client scale.</p> <p>            Having heard submissions by counsels and perusing papers filed of record the court is of the view that the urgency in this matter is self- created and it is not the sort of urgency contemplated by the rules. See <em>Kuvarega</em> v <em>Registrar General and Anor</em> 1998 (1) ZLR 188(H).</p> <p> I therefore, agree with Mr Chinyama that since 28th June 2018, and having ignored the notices of set down the attachment of property could not have been the basis of urgency. The applicant is to blame for the default judgments made by the Honourable courts. Applicant became aware of draft ruling and felt it was at peace. It was served to appear before the labour court but failed to do so thinking it was at peace. Was served with application for registration of arbitral award but did not file notice of opposition thinking it was at peace. Now that the property has been attached it wants to cry foul.  I uphold the point in <em>limine</em> that this application is not urgent. It is ironic that applicant only saw writ of execution but failed to see other notices of set down. The application is dismissed with costs without dealing with the merits.</p> <p> </p> <p>            IT IS ORDERED THAT</p> <ol> <li>The application is hereby dismissed.</li> <li>The applicant to pay 1st Respondent’s costs on a legal practitioner and client scale.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Atherstone &amp; Cook</em>, applicant’s legal practitioners</p> <p><em>Chinyama and Partners</em>, respondents’ legal practitioners.            </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/439/2019-zwhhc-439.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24037">2019-zwhhc-439.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/439/2019-zwhhc-439.pdf" type="application/pdf; length=118982">2019-zwhhc-439.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span> Thu, 18 Jul 2019 12:39:24 +0000 admin 9367 at https://old.zimlii.org Augur Investments OU v Faircot Investments (Private) Limited t/a T& C Construction & Another (SC 8/19, Civil Appeal No. SC 170) [2019] ZWSC 8 (11 February 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/8 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>     (9)</strong></p> <p><strong>        </strong></p> <p><strong>AUGUR     INVESTMENTS     OU</strong></p> <p><strong>v</strong></p> <p><strong>(1)      FAIRCLOT     INVESTMENTS     (PRIVATE)     LIMITED     t/a     T &amp; C     CONSTRUCTION     (2)     D.L.     CRUTTENDEN</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA; MAVANGIRA JA; BHUNU JA</strong></p> <p><strong>HARARE, OCTOBER 16, 2017 &amp; FEBRUARY 11, 2019</strong></p> <p> </p> <p><em>T. Zhuwarara </em>with<em> N. Chamisa</em>, for the appellant</p> <p><em>D.Ochieng</em>, for the respondents</p> <p>  </p> <p><strong>GWAUNZA JA</strong>        </p> <p>[1]        This is an appeal against the whole judgment of the High Court dismissing the appellant`s application for the setting aside of an arbitral award in terms of Article 34(2) of the UNCITRAL Model Law as set out in the Arbitration Act [<em>Chapter 7:15</em>].</p> <p>  </p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>[2]        The appellant is a company incorporated in terms of the laws of Mauritius and it carries on the business of property finance and development in Zimbabwe. The first respondent is a duly registered company in terms of the laws of Zimbabwe and is in the business of performing civil contracting services. The second respondent is an arbitrator. In June 2008, the appellant was contracted by the City of Harare to manage the upgrading and extension of the Airport Road. By agreement dated 25 and 26 March 2013, the appellant subcontracted the first respondent to carry out civil engineering works on the Airport Road. At the time of entering into the agreement, the appellant acknowledged indebtedness to the first respondent in the sum of US$ 3 340 500 for previous work done and equipment hire charges.</p> <p> </p> <p>[3]        In terms of clauses 1.3 and 3.1 of the agreement, payment to the first respondent for its services was to be by way of land and should the land option fall away, payment was to be made in cash within a limited time period. It was also a term of the agreement that the consideration due to the first respondent was to be payable when the land pledged as security was sold or the appellant was in the position to make a cash payment. It was recorded that the appellant had commenced the rezoning of the land and would use its best endeavours to rezone, subdivide and develop it. It is common cause that the land pledged as security was not registered in the name of the appellant, nor was it sold to realise the amount owed to the first respondent, as envisaged by the parties. Pursuant to the agreement, the first respondent carried out works on the Airport Road at the cost of US$ 4 800 000. Despite demand, the appellant refused, failed or neglected to pay the debt due to the first respondent for a period of almost two years then. It is now close to 5 years.</p> <p> </p> <p>[4]        Aggrieved, the first respondent purported to cancel the agreement between the parties by way of a letter dated 14 April 2014 and thereafter a dispute arose.  In terms of the contract, the matter was referred to arbitration before the second respondent. Before the arbitrator, the first respondent sought an award for payment of the US$ 4 800 000 debt or alternatively an order of <em>quantum meruit</em> for work carried out on behalf of the appellant. The first respondent demanded that it be paid in cash and in its statement of claim, gave the reason that the land option had fallen away as evidenced by the appellant’s failure to pay its dues by way of cash, transfer of land or a combination of the two. Further, that the appellant did not in any event, own the land it had tendered as security for the payment of the debt in question. In response, the appellant did not contest the debt but challenged the method of repayment as well as the timing of it.</p> <p> </p> <p>[5]        It would appear that in view of the above, the main issue placed before the arbitrator for determination was whether or not the land option had fallen away and if so whether payment was to be made by way of cash. The arbitrator found for the first respondent and issued the following award:</p> <ol> <li>That the respondent shall pay the Claimant US$ 3 340 500,00 (three million five hundred and forty thousand and five hundred United States dollars) not later than Friday 4 April 2015.</li> <li>That the respondent shall pay the Claimant US$ 1 459 500,00 (one million four hundred and fifty-nine thousand and five hundred United States dollars) not later than Thursday 4 June 2015. This payment may be made in land of equivalent value but, whether in cash or land, the payment must be made not later than Thursday 4 June 2015.</li> <li>That the costs of the Arbitration being the Arbitrator`s fee and the costs of the hearing be paid in equal shares by the parties.</li> <li>That the parties shall bear their own legal costs.</li> <li>That the application for an order of <em>quantum meruit</em> fails.</li> </ol> <p> </p> <p>[6]        Dissatisfied with the award, the appellant approached the court <em>a quo</em> with an application to set it aside in terms of Article 34(2)(b)(ii) of the Arbitration Act, on the basis that the award was contrary to public policy as the arbitrator had decided on matters which were not placed before him. This related to the issue of the effect of the cancellation of a contract relating to the land pledged by the appellant <em>in casu</em>, entered into between the appellant and the City of Harare. The court <em>a quo</em> dismissed the application and reasoned that the arbitrator did not deal with issues outside those referred to him and consequently that the award did not offend against public policy. In support of this finding the court <em>a quo</em> held that it was, in fact, the appellant who had introduced the issue of the contract with the City of Harare. The court <em>a quo</em> further found that the second respondent`s decision to award payment in cash was not outrageous since the land used as security did not belong to the appellant. </p> <p> </p> <p>[7]        Aggrieved by this order, the appellant noted an appeal to this Court on grounds that in my view raise two questions for determination, and these are:</p> <p>1.   Whether or not the arbitrator decided on issues that were not placed before him;                and</p> <ol> <li>Whether or not the arbitral award was contrary to public policy.</li> </ol> <p> </p> <p><strong>THE APPELLANT`S ARGUMENTS ON APPEAL</strong></p> <p>[8]        It was argued for the appellant that it was common cause that payment due to the first respondent was to be made in land rather than in cash. It was also argued that the statement of claim by the first respondent set out the case that the agreement had been terminated and since the land used as security was not registered in the appellant`s name, the land option had fallen away. The appellant claims that this is the case it was supposed to meet and answer at the arbitration proceedings but however the second respondent found for the first respondent by making out a case that had neither been pleaded nor argued. In particular, the appellant took issue with the fact that the second respondent found that as the main contract between the appellant and the City of Harare had been terminated, the agreement between the parties effectively came to an end. That was never the case that was pleaded or argued by the first respondent. It was therefore alleged that the second respondent made out a case for the first respondent and substituted the first respondent`s cause of action with his own, resulting in fundamental injustice which was also an affront to the public policy of Zimbabwe.</p> <p> </p> <p><strong>THE RESPONDENTS` ARGUMENTS ON APPEAL</strong></p> <p>[9]        The first respondent argued that the appellant is not disputing the debt owed to it which has been outstanding for a number of years. It was also argued that the appellant exhibited dishonourable conduct by offering land which did not belong to it as “security” for the repayment of the debt. This was because the land could not be sold and was thus never at any point, security for the debt.  The first respondent also denies that the award is contrary to public policy and stresses that the appellant undertook to pay the debt by June or July 2014 through a transfer of land but this has not been done. As a result, the US$ 4 800 000 remains owing.  As regards the argument that the arbitrator dealt with issues not before him, the first respondent argued that the arbitrator correctly identified the issues for determination and one of these was whether or not the land option had fallen away.</p> <p> </p> <p><strong>WHETHER OR NOT THE ARBITRATOR DECIDED ON ISSUES THAT WERE NOT BEFORE HIM</strong></p> <p>[10]      It is the appellant`s argument that the second respondent went outside his terms of reference and raised <em>mero motu</em> the issue of the cancellation of the contract between the appellant and the City of Harare. The argument is that this issue was neither raised nor argued by the parties thus the second respondent ought not to have made a pronouncement on it or premised his arbitral award thereon.</p> <p> </p> <p>[11]      The arbitrator did indeed find that the agreement between the parties was terminated by virtue of the termination of the main contract between the appellant and the City of Harare. However, in his award, the arbitrator pointed out that there was on the record before him minutes of a meeting between the appellant and a third party, which recorded the fact of such termination. Further, that the document had been prepared by the appellant, and was introduced at the hearing before the arbitrator, with no objections being raised. The court <em>a quo</em> also noted that a copy of the agreement in question, between the appellant and the City of Harare, was part of the record before that court.</p> <p>Thus, far from finding that the arbitrator had dealt with issues falling outside his terms of reference, the court <em>a quo</em> stated as follows in its judgment:</p> <p>“I have perused the statement of claim and response. It is the applicant (appellant <em>in casu</em>) in its response which introduced the issue of its contract with the City of Harare ….</p> <p>On page 299 of the record is an agreement between City of Harare and the applicant.</p> <p>I therefore fail to understand the complaint by the applicant. It is my view that the arbitrator did not deal with issues outside referral.”</p> <p>           </p> <p>            Against this background, it is in my view correctly argued for the first respondent that the arbitrator pronounced on, and premised his finding as to, the termination of the agreement between the parties, based on evidence and submissions that were clearly placed before him.</p> <p> </p> <p>[12]     The first respondent argues that in any case whether or not the agreement was alive was irrelevant to the question of whether payment in cash was due. In terms of clause 3.1 of the agreement, so the argument goes, the ‘cash settlement’ was to come into effect only upon the land option falling away, a conclusion that the arbitrator duly pronounced. I am persuaded by this argument, not least because the appellant itself indicated that it understood the ‘land falling away’ option, as an alternative basis for the claim filed against it. This much is made clear on a reading of para 9 of the appellant’s founding affidavit <em>a quo</em>:</p> <p>“First respondent claimed payment in the sum of US$4.8 million based on a written agreement. As appears from the statement of claim, it was alleged that the agreement had been cancelled or alternatively, the land option envisaged by the parties had fallen away…”   (<em>my emphasis</em>)</p> <p>[13]      A perusal of the first respondent`s statement of claim confirms the appellant’s assessment of the first respondent’s claim. The point was clearly made in its statement of claim, that the land which had been used as security for the debt did not belong to the appellant and thus did not constitute valid security. Further that as a result, the land option had fallen away. The relevant part of the statement of claim reads as follows:</p> <p>            “25.     In an email dated 11 September 2014 (enclosed as Annexure 14) T&amp;C       offered to settle the outstanding debt with Augur by way of (a) cash    payment, or (b) by way of transfer of ownership of land to T&amp;C or (c) a             combination of the two. Augur failed to respondent to this proposal.</p> <p> </p> <p>            26.       In the circumstances, the “land option” has   fallen away as Augur does      not own the land it secured and, further, Augur has not consented           to         the transfer of land to T&amp;C. In fact, T&amp;C is unaware whether Augur        owns any land.</p> <p> </p> <p>            27.       Pursuant to clauses 3.1, 6.1B and 6.3 the       admitted debt of          US$ 4.8 million is due and owing.” (<em>my emphasis</em>)</p> <p> </p> <p>[14]      That the issue of the land option was uppermost in the arbitrator’s mind is confirmed in the following concise statement contained in his award:</p> <p>“The particular issues are whether or not the ‘land option’ has fallen away and what is the duration of the ‘limited time period’ both as identified in clause 3.1. In my view these are inextricably linked.”</p> <p> </p> <p>Thus, while the second respondent opined that the termination of the main contract between the City of Harare and the appellant had the effect of terminating the agreement between the appellant and the first respondent, he also considered the land issue, including the timing of the cash payment.  He found that the land option in respect of ‘the old debt,’ unlike the ‘new debt,’ had indeed fallen away. His conclusions are clearly premised on this finding as stated in para 5.5 and 5.5(<em>sic</em>) of the arbitral award:</p> <p>            5.5       As set out in 4.21 above, I consider the respondent has had more than         adequate time to demonstrate progress towards settling this    debt.    Accordingly, I conclude that the land option has fallen away in respect            of the old debt and that the time has come for a cash payment.</p> <p>            5.5       So far as the new debt is concerned I consider that sufficient time has         not yet elapsed to enable me to consider that the land option has fallen       away and I shall make allowance for this in the award.</p> <p> </p> <p>[15]      It would appear from his award though, that the arbitrator used the estimated date of the termination of the contract between the parties, as an aid in assessing whether or not adequate time to demonstrate progress towards settling the debt in terms of para 3.1 of the agreement, had elapsed.  I do not find anything amiss in this approach, given that the evidence was there before him and that he could, in any case have made the same assessment of time without reference to the supposed date of the termination of the parties’ agreement. The arbitrator was not called upon to determine the date from which the land option could be considered as having fallen away. All he had to do was determine whether ‘a limited time period’ had elapsed from the time events on the ground suggested to the first respondent that the land option had fallen away. The first respondent’s statement of claim in my view was instructive in that respect.</p> <p> </p> <p>[16]      It is accepted that an arbitrator, unlike a court of law, is not allowed to venture outside their terms of reference when making a determination, as highlighted as follows by FOURIE J, in <em>Bidoli v Bidoli</em> [2010] ZAWCHC 39 at 30:</p> <p>“An arbitrator, unlike a court, has no inherent power to decide issues or make orders that go beyond the issues which have been referred to arbitration and the pleadings filed pursuant thereto. In <em>Hos+Med Medical Aid Scheme v Thebe Ya Bophelo Healthcare Marketing &amp; Consulting (Pvt) Ltd and Others</em> [2007] ZASCA 163; 2008 (2) SA 608 (SCA), LEWIS JA put it as follows at para 30:</p> <p>            "In my view it is clear that the only source of an arbitrator's power is          the arbitration       agreement between the parties and an arbitrator        cannot stray beyond their submission where the parties have expressly             defined and limited the issues, as the parties have done in this case to         the matters pleaded. Thus the arbitrator... had no jurisdiction to decide a           matter not pleaded."</p> <p> </p> <p>(See also <em>Inter Agric (Pvt) Ltd v Mudavanhu &amp; Ors</em> SC 09/15)</p> <p>[17]      The appellant itself acknowledges that the issue of mode of payment to the first respondent was key to a resolution of the dispute and stated the following in its Answering Affidavit to the application in the court <em>a quo</em>:</p> <p>“A genuine dispute existed between the parties. The central issue was whether or not the First Respondent was entitled to payment in a form other than land, and if so, when such payment was to be made.”</p> <p> </p> <p>In view of the foregoing, I find that the appellant’s submission that the second respondent made a case for the parties and premised his findings on issues that were not before him, to be without any basis. The point must be made that even if the arbitrator had indeed premised his award also on the finding that the contract between the City Council and the appellant automatically terminated the parties’ contract, the validity of the conclusion would still stand. It is at law not uncommon for a single determination to be premised on more than one finding in the same dispute.</p> <p>            This issue is accordingly determined against the appellant.</p> <p>  </p> <p><strong>WHETHER OR NOT THE AWARD IS AGAINST PUBLIC POLICY</strong></p> <p>[18]      In terms of the law, an arbitral award can be set aside in terms Article 34(2) of the UNCITRAL Model Law as set out in the First Schedule to the Arbitration Act [<em>Chapter 7:15</em>].  It reads as follows in relevant part:</p> <p>“(2)      An arbitral award may be set aside by the High Court only if;</p> <ol> <li> </li> </ol> <p>                                    . . .</p> <ul> <li>the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions 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</li> </ul> <p>. . .</p> <p>                                    (b)        the High Court finds that—</p> <p> </p> <ul> <li>the subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or</li> <li>the award is in conflict with the public policy of Zimbabwe.” (<em>my emphasis</em>)</li> </ul> <p> </p> <p>[19]      The test to be applied in determining whether an award is in conflict with public policy was set out by this Court in <em>Zimbabwe Electricity Supply Authority v Maposa</em> 1999 (2) ZLR 452 (S) at 466 E-G where GUBBAY CJ said:</p> <p>“Under article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it.</p> <p>The same consequence applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”</p> <p> </p> <p>[20]      The gravamen of the appellant`s attack on the arbitral award is that the second respondent made a case for the first respondent by considering an alternative and completely unfounded basis upon which the appellant`s liability was premised, that is the termination of its contract with City of Harare.</p> <p> </p> <p>[21]      I have already determined, as did the court <em>a quo</em>, that there is no basis to the above           allegation. On the evidence before the court, the arbitrator’s determination clearly did             not turn on the issue concerning the effect that the cancellation of the agreement             between the appellant and Harare City Council might have had on the parties’          agreement. This was   notwithstanding the fact that the matter had been placed before      the arbitrator by the appellant itself. Rather, and as demonstrated above, the             determination properly turned on the issue of whether or not the land option had fallen      away.  That being the case, I find that the applicant failed to furnish proof, as required in terms of Article 34(2) of the Model Law, that the award dealt with a dispute not contemplated by or not falling within the terms of the submission to arbitration, nor that      it contained decisions on matters beyond the scope of the submission to arbitration.</p> <p> </p> <p>[22]      To the extent that the appellant may be questioning the correctness of the conclusions that were reached by the second respondent, it is settled that in setting aside an award, the court is not concerned with its correctness. Rather the concern of the court is whether or not the award goes beyond mere faultiness to constitute a palpable inequity. In <em>Peruke Investments (Pvt) Ltd v Willoughby`s Investments (Pvt) Ltd &amp; Anor</em> 2015 (2) ZLR 491 (S) at 499H-500F PATEL JA held as follows:</p> <p>“As a rule, the courts are generally loath to invoke this ground except in the most glaring instances of illogicality, injustice or moral turpitude.  In the words of GUBBAY CJ in the <em>locus classicus</em> on the subject, <em>ZESA</em> v <em>Maposa</em> 1999 (2) ZLR 452 (S) at 465D-E:</p> <p> </p> <p>“In my opinion, the approach to be adopted is to construe the public policy defence, as being applicable to either a foreign or domestic award, restrictively in order to preserve and recognise the basic objective of finality in all arbitrations; and to hold such defence applicable only if some fundamental principle of the law or morality or justice is violated.”</p> <p> </p> <p>In that case the learned judge went on to state that he could not find anything outrageously illogical or immoral in the reasoning or conclusions reached by the arbitrator, to warrant a different conclusion.</p> <p> </p> <p>[23]      I respectfully associate myself with the sentiments of the learned judge in this case and find that they may properly be applied to the circumstances of this case.  There is no indication in <em>casu</em>, and based on the circumstances, that the second respondent`s award is irrational or outrageously immoral or illogical. (See also <em>Zesa v Maposa </em>1992(2) ZLR 452(S)).</p> <p> </p> <p>[24]      It is pertinent to reiterate that from the time that the dispute arose right up to the appeal     before this Court, the appellant has not disputed that it owes the first   respondent money        for work done, in the amount of US$ 4 800 000.  Nor can the appellant deny that payment of this amount to the first respondent, in cash, was within the contemplation    of the parties. This is put beyond doubt if regard is had to para 3.1 of their agreement,      which reads as follows:</p> <p>“Should the land option fall away then a limited time period will apply for the cash settlement to come into effect. T &amp; C Construction will have the option to opt out of the land security if so required” (<em>my emphasis</em>)</p> <p> </p> <p>[25]      In the premises and given that in terms of the arbitrator’s award, the appellant was ordered to pay a sum of money that it admitted to owing, the argument that such an award is contrary to public policy, is clearly not sustainable. The award is not one to be characterised as having far reaching public consequences that would hurt the conception of justice in Zimbabwe. Nor can it be said to have violated a fundamental principle of the law, morality or justice. The contrary could be said to be true, given that the first respondent performed its part of the contract and in the process, incurred expenses running into millions of dollars. These expenses have still not been paid close to 5 years after the contract was entered into.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>[26]      The court <em>a quo</em> cannot be faulted in its finding that no case had been proved for the          setting aside of the arbitral award of the second respondent<strong>. </strong>As demonstrated above,<strong>      </strong>the award is not in conflict with the public policy of Zimbabwe. The appeal has no merit            and ought to fail.</p> <p> </p> <p>[27]      Accordingly, it is ordered as follows:</p> <p>                        “The appeal be and is hereby dismissed with costs.”</p> <p> </p> <p> </p> <p><strong>MAVANGIRA JA:</strong>               I agree</p> <p>    </p> <p> </p> <p><strong>BHUNU JA:</strong>                           I agree</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Costa &amp; Madzonga</em>, appellant`s legal practitioners</p> <p> </p> <p><em>Gill, Godlonton &amp; Gerrans</em>, respondents` legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/8/2019-zwsc-8.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=47261">2019-zwsc-8.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/8/2019-zwsc-8.pdf" type="application/pdf; length=154571">2019-zwsc-8.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arbitration-agreement">Arbitration agreement</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration-appeal">Arbitration appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arbitrator">Arbitrator</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/setting-aside-award">setting aside award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/setting-aside-award">setting aside award</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1996/6">Arbitration Act [Chapter 7:15]</a></div></div></div> Mon, 24 Jun 2019 07:17:34 +0000 admin 9331 at https://old.zimlii.org Synohydro Zimbabwe (Private) Limited v Townsend Enterprises Private Limited & 2 Others (SC 27/19, Civil Appeal No. SC 73/19) [2019] ZWSC 27 (28 February 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/27 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE</strong><strong>   (25)</strong></p> <p> </p> <p> </p> <p> </p> <p>    <strong>SYNOHYDRO     ZIMBABWE     (PRIVATE)     LIMITED              </strong></p> <p><strong>v</strong></p> <ol> <li><strong>TOWNSEND ENTERPRISES PRIVATELIMITED(2)DAVID WHATMAN N.O(3)THE SHERIFF OF ZIMBABWE N.O</strong></li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, 18 &amp; 28 February, 2019</strong></p> <p> </p> <p> </p> <p> </p> <p><em>K. Kachambwa</em> with <em>C Shava</em>, for the applicant</p> <p><em>C. McGowan</em>, for the first respondent</p> <p>Second &amp; third respondents in default</p> <p> </p> <p> </p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>MAKARAU JA</strong>:            This is an urgent chamber application for stay of execution in terms of r 73 of the Supreme Court Rules 2018 as read with Rule 244 of the High Court Rules, 1971.</p> <p> </p> <p>On 19 December 2018, the High Court handed down a judgment registering an arbitral award against the applicants. The judgment also dismissed an application by the applicant to set aside the arbitral award. The applicant became aware of the judgment on 29 January 2019 after the first respondent had caused the third respondent to attach its equipment and assets to satisfy the debt. On 31 January, the applicant’s legal practitioners advised the first respondent’s practitioners that they intended to appeal against the judgment and were accordingly filing an application for condonation and extension of time within which to note the appeal.  In the same letter, the applicant inquired whether the first respondent was inclined to stay execution in light of the applicant’s intention to appeal the judgment. Whilst the first respondent’s practitioners responded to the letter, they did not advise on whether or not they were inclined to stay execution as requested. To avoid the attached property being removed, the applicants issued a security bond in terms of the High Court Rules.</p> <p> </p> <p>The application for condonation was filed on 5 February 2019 and was duly served on the respondents. The applicant once again made inquiry of the first respondent as to whether or not it was inclined to stay execution. It gave the first respondent up to 8 February to respond. Instead of responding to the inquiry, the first respondent, on 11 February, caused further attachment of the applicant’s property. On 13 February, 2019, the applicant filed this application.</p> <p> </p> <p>In the application, the applicant contends that the matter is urgent, that it has prospects of success in the application for condonation and that the balance of convenience favours the granting and not the denial of the interim protection that it seeks. On this basis, the applicant seeks an order staying execution pending the determination of its application for condonation and extension of time within which to note an appeal.</p> <p> </p> <p>At the hearing of this application, it was common cause that the application for condonation and extension of time within which to note the appeal is now ready for hearing and is simply awaiting set down.</p> <p>The application was opposed on four main grounds. Firstly, it was contended that the matter is not urgent. Secondly, it was argued that the application was improperly before me. The first respondent contended, thirdly, that the applicant’s prospects of success in the application for condonation and extension of time to note the appeal are not bright and lastly, it was argued that the balance of convenience favours the denial of the application.</p> <p> </p> <p>It is convenient that I deal with this application on the basis of the four grounds of opposition that have been advanced by Mr <em>McGowan</em> for the first respondent, but not in the order in which he presented them as the second ground goes towards jurisdiction and should be dealt with first.</p> <p> </p> <p><strong>Whether or not the application is properly before this court</strong></p> <p>It was contended on behalf of the first respondent that the applicant ought to have applied for the judgment against it to be rescinded in the court <em>a quo</em> as a default judgment. The basis of this contention is a statement by the applicant in its founding affidavit in the application for condonation contending that the effect of the striking out of the opposing affidavit in the application for registration of the award was that the application was granted unopposed. To this extent, the contention proceeds, it was a default judgment yet the order of the court <em>a quo</em> did not reflect this state of affairs and gives the impression that the order was granted on the merits.</p> <p> </p> <p>It is common cause that the court<em> a quo</em> upheld the point in <em>limine</em> raised by the first respondent that the deponent to the applicant’s affidavit was incompetent to swear positively to the contents of the applicant’s affidavits. Having done so, it dismissed the application by the applicant and granted the application by the first respondent.  It is therefore not in dispute that the court <em>a quo</em> did not render a  judgment in default of appearance or of filing relevant papers in the two matters but dismissed the one and granted the other after hearing arguments from the parties on the basis of papers filed of record.  The court considered that the applicant was properly before it and accepted argument from it on the point <em>in</em> <em>limine</em>.  It follows therefore, that the judgment that it rendered thereafter on that point cannot by any imagination be described as a default judgment as envisioned by the High Court Rules. The applicant was clearly before the court and did not default in the filing of any papers.  It was simply not persuasive in its argument before the court <em>a quo</em> on the point <em>in limine</em>. The ensuing judgment was made in its presence, on the basis of its papers but against it.</p> <p> </p> <p>It appears to me that having struck off the applicant’s papers, the court <em>a quo</em> ought to have either dealt with the matter on the merits, or refer it to the unopposed roll for a “proper” default judgment to be entered against the applicant. It did neither.</p> <p> </p> <p>As matters stand, the only way that the applicant could have had the correctness of the judgment against it tested was by way of an appeal. It could not conceivably have done so by way of an application for rescission of the judgment as argued for and on behalf of the first respondent.</p> <p> </p> <p>Notwithstanding that the applicant itself may have incorrectly referred to the judgment of the court <em>a quo</em> as a default judgment, I find that it was not a default judgment capable of correction by way of rescission. I further find that applicant, once having made an application to this Court for condonation of late filing of its appeal and an extension of time within which to note the appeal, is properly before this Court in this application. The jurisdiction of this Court in this matter is not inherent but is ancillary to the application for condonation that this Court is seized with. It is the settled position at law that once this court is seized with a matter, it is then imbued with inherent jurisdiction to control and protect its processes and this includes jurisdiction to stay the judgment appealed against. (See <em>Net One Cellular (Private) Limited v 56 Net One Employees &amp; Anor</em> SC 40/05).</p> <p> </p> <p><strong>Urgency</strong></p> <p>Clearly the matter before me is urgent. What has created the urgency is the first respondent’s unwillingness to advise the applicant in time its intention to proceed with execution notwithstanding the filing of the application for condonation and extension of time within which to note an appeal. Had that intention been communicated to the applicant when it was solicited on 29 January 2019, this application may have been filed earlier than it eventually was.</p> <p> </p> <p>I am constrained by the facts of this matter to note in passing that it is eminently ethical practice for legal practitioners to be upfront with colleagues and advise them of client’s instructions, especially when an indulgence sought is not being granted. To the contrary, it is sharp practice, one that this Court frowns upon, for legal practitioners not to respond to a direct inquiry on an indulgence sought, and then surreptitiously proceed with the course of action which is the subject of the inquiry.</p> <p> </p> <p>As correctly contended on behalf of the first respondent, the need to act in this matter arose on 29 January 2019 and the applicant would have been at fault had it failed to take action then in the absence of any explanation. The applicant has however taken the court into its confidence and has explained all the steps that it took during this period, including the issuance of a security bond and the sending of the two unrequited written inquiries to the first respondent on whether or not it was inclined to suspend execution pending the determination of the application for condonation.</p> <p> </p> <p>It is on the basis of the above that I view this matter as being urgent.</p> <p> </p> <p><strong>Prospects of success</strong></p> <p>It was contended on behalf of the first respondent that the applicant’s prospects of success on appeal are not bright.</p> <p> </p> <p>In considering this factor I am aware that another court is yet to consider the same prospects of success on appeal when it determines the application for condonation of late filing of the appeal and extension of time within which to file the appeal. I am however comforted by the fact that my findings herein are not binding on that other court.</p> <p> </p> <p>The applicant contends that the court <em>a quo</em> erred in several respects.</p> <p> </p> <p>It argued in the main, that the court <em>a quo</em> erred in holding that a director of a company who had read the arbitral award, the record of proceedings and had access to the records and other institutional memory of the company could not depose to an affidavit in an application to set aside the award and to the opposing affidavit in an application to register the award. Its main contention was that corporations, being persons in perpetuity and lacking corpus, can only be represented in legal proceedings by authorised officers and a director, so authorised is competent to depose to an affidavit on behalf of the corporation. In circumstances where a corporation is so represented, it cannot be said that it has no voice before the court and only the other party will be heard.</p> <p> </p> <p><em>Per contra,</em> the first respondent argued that the director who represented the applicant in the proceedings <em>a quo</em> did not participate in the negotiation of the arbitral agreement, was not a witness to the arbitration proceedings, did not attend the meetings where the dispute was discussed and did not set out the basis of his knowledge of the facts that he deposed to in the two affidavits. On account of this failing, it is argued that the court <em>a quo</em> correctly held that the applicant’s affidavits in both matters be struck off.</p> <p> </p> <p>There is clearly an argument in the two competing contentions advanced by the parties that may detain the Supreme Court. There is no ready answer to each of them and the court will have to rely on one or more underlying legal principles in company law and in the interpretation of the rules of procedure to resolve the argument.</p> <p> </p> <p>The contention by the applicant that a corporation can be represented by any of its authorised directors who has access to company records and other reservoirs of institutional memory  has some prospects of success on appeal.</p> <p> </p> <p>Having found that there is an argument relating to one of the grounds of appeal is sufficient basis for a finding that there are prospects of success in the application for condonation. On this basis alone, I would grant the relief sought in the application. For completeness of the record though, I will briefly consider the other grounds upon which the judgment of the court <em>a quo</em> has been attacked.</p> <p> </p> <p>It has further been argued on behalf of the applicant that the court <em>a quo</em> erred in registering an award that does not sound in money. The award was not attached to the application and I am none the wiser as to its contents. In opposition to this averment by the applicant I expected a vehement denial by the first respondent of the allegation. It was not there. Instead, the argument advanced was that the applicant was aware of the amount of the award, presumably from some other sources that are not the judgment nor the award itself. Assuming that the complete information is placed before the court determining the application for condonation of late filing of the appeal and extension of time within which to note the appeal, this may be another arguable position to be referred to the Supreme Court for determination.</p> <p> </p> <p>It was yet and further argued that the court <em>a quo</em> erred in rendering a judgment without reasons.</p> <p> </p> <p>After summarising the arguments of the first respondent, the court <em>a quo</em> in a rather terse judgment held that it was “<em>accordingly persuaded that the opposing papers, such as they are in case no HC 1186/18 ought to be struck out ….”</em></p> <p> </p> <p>The court <em>a quo</em> made a similar statement regarding the founding affidavit in the application for setting aside the arbitral award.</p> <p> </p> <p>Applicant contended that the above did not constitute “reasons” for the decisions that the court finally made. <em>Per contra,</em> the first respondent argued that the statements coming as they do immediately after the court <em>a quo</em> had summarised the arguments of the first respondent, the statements must be read as an endorsement of those arguments which then constitute the reasons for the decisions made. Again, there is content in both arguments that may detain the Supreme Court.  The court may find that the court <em>a quo</em> misdirected itself by not clearly articulating its reasons for judgment  and may consequently  find that the <em>ratio decidendi</em> of the court <em>a quo</em> cannot be and should not be discerned from the opposing arguments as argued for and on behalf of the first respondent. In my view, this argument enjoys some prospects of success on appeal.</p> <p> </p> <p>Finally, it is argued on behalf of the applicant that the court <em>a quo</em> made two contrary findings regarding costs. In the body of the judgment the court made a finding that it ordered that the applicant bears the costs of the two applications on the higher scale. It proceeds to give reasons for the decision and in doing so, ultimately orders that the applicant bears costs only in the one matter on the ordinary scale while in the other, each party is to bear its own costs.</p> <p> </p> <p>Mr <em>McGowan</em> for the first respondent has sought to downplay the apparent contradiction regarding costs by submitting that the contradiction can be corrected under r 449 of the High Court Rules 1971. It is not necessary that I comment on whether this course of action is feasible or not. What is clear to me is that the Supreme Court also enjoys    jurisdiction on appeal to decide on whether or not the contradictory pronouncements by the court <em>a quo</em> on the issue of costs was an irregularity meriting its attention and possible rectification.</p> <p> </p> <p>On the whole, I am satisfied that the application for condonation for the late noting of appeal and extension of time within which to note the appeal has some prospects of success on one or more of the grounds raised by the applicant.</p> <p> </p> <p><strong>Balance of convenience</strong></p> <p>An application for stay of execution pending the determination of some other process by the court is a hybrid application. It combines the factors that a court takes into account when considering an application for an interim interdict generally and the factors that a court considers when granting an indulgence in an exercise to control and protect its own proceedings. (see <em>Makaruse v Hide and Skins Collectors (Pvt) Ltd</em> 1996 (2) ZLR 60 (S) and <em>TM Supermarkets (Private) Limited v Avondale Holdings (Private)Limited and Another</em> SC 37/17. In both instances, the court must always bear in mind the balance of convenience or more importantly, where the interests of justice lie.</p> <p> </p> <p>Comparing itself to the biblical David against an international corporation that it likened to Goliath, the first respondent has painted a vivid picture of a small local company that is being brought to its knees by the delays in receiving payment from an arbitral award that it has been awarded and has since had registered. Against the proceeds of projects that are worth at least US1,2 billion, the amount due to the first respondent in the sum of US1,5 million, appears trifling and will or should not cause a financial dent to the applicant.</p> <p> </p> <p>If this was the only factor that I had to consider, I would have been persuaded by the submission made by the first respondent regarding the crippling effect that delay has had on its operations, to be on its side and deny the application. Taking into account all the factors cumulatively as I must, I find myself on the applicant’s side. The applicant has exhibited utmost good faith in the manner in which it has proceeded after learning of the judgment against it, it has taken out a security bond and has tried to engage the first respondent regarding the stay of execution of the judgment <em>a quo</em> in vain. Further the period of the interim order sought is fairly short as the order will hold only up to the determination of the application for condonation.  Yet further, there are clear challenges with the judgment <em>a quo</em> that may need commenting on and possible rectification by this court before the judgment can be executed upon.</p> <p> </p> <p><strong>Disposition and costs</strong></p> <p>It is my finding that it is in the interests of justice that pending the determination of the application for condonation for late noting of appeal and extension of time within which to note the appeal, execution be stayed.  The applicant has succeeded in this application. It is entitled to its costs. No argument was advanced by either side as to why the ordinary incidence of costs following the cause, should not apply.</p> <p> </p> <p>Accordingly, I make the following order:</p> <ol> <li>The application is granted with costs.</li> <li>Execution of the judgment in case no HC825/13 is hereby stayed pending determination of the application for condonation and extension of time within which to note an appeal filed under case no SC41/19.</li> </ol> <p> </p> <p> </p> <p><em>Manokore Attorneys</em>, applicant’s legal practitioners.</p> <p><em>Machekano Law Practice</em>, 1st respondent’s legal practitioners.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/27/2019-zwsc-27.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33971">2019-zwsc-27.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/27/2019-zwsc-27.pdf" type="application/pdf; length=184340">2019-zwsc-27.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/setting-aside-award">setting aside award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li></ul></span> Mon, 10 Jun 2019 08:29:08 +0000 admin 9312 at https://old.zimlii.org Pomelo Mining Private Limited v Annandale Trust & Another (HH 33-19, HC 4914/18 X Ref HC 7296/18 X Ref 9967/18) [2019] ZWHHC 33 (23 January 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/33 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>POMELO MINING (PVT) LTD</p> <p>versus</p> <p>ANNANDALE TRUST</p> <p>and</p> <p>ADDINGTON BEXLEY CHIKOMBORERO CHINAKE N.O</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 29 November 2018 &amp; 23 January 2019</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p><em>R.R. Nyapadi, </em>for the applicant   </p> <p><em>T.S. Manjengwah</em>, for 1st respondent</p> <p>No appearance for  2nd  respondent</p> <p> </p> <p>MUZOFA J: The applicant and the first respondent entered into a joint venture agreement ‘the agreement’ to explore, prospect, extract and beneficiate minerals. The first respondent was the registered owner of the entire issued share capital in a company known as Beatrice Mine (Pvt) Ltd “the company”. In terms of the agreement, the applicant was the primary financier. Clause 4.1 of the agreement provided that upon signing of the agreement the applicant was to advance a loan to the company in the sum of $500 000 in defined tranches for the completion of phase one of the project. In terms of Clause 4.4 upon payment of the initial loan the first respondent was to off load 74% of the shares in the company to the applicant so that the shareholding structure was 26% for the first respondent and 74% for the applicant. After the completion of phase one, the applicant was supposed to advance to the company a sum of $4 000 000-00 (four million dollars) for capital and working capital requirements to commence and complete phase two of the project. The applicant provided the initial $500 000 and the 74% shares were duly transferred to it. When phase one was complete, the first respondent alleged that the applicant failed to provide the $4 000 000 -00 for the second phase. The first respondent subsequently cancelled the agreement on account of the breach. A dispute thereafter arose as to whether there was a breach of the agreement. The dispute was referred to arbitration in terms of the agreement. The second respondent was the appointed arbitrator.</p> <p>The parties appeared before the second respondent and the applicant raised preliminary issues challenging the appointment or suitability of the second respondent. The preliminary points were dismissed. In the main the second respondent confirmed the cancellation of the agreement and granted the consequential relief. The applicant, dissatisfied by both the procedural and substantive findings by the second respondent, filed two applications with this court HC 4914/18  in terms of article 13 of the Arbitration Act (<em>Chapter 7:15</em>) ‘the Act’ and HC 9967/18 in terms of article 34 of the Act. The first respondent also filed an application for registration of the arbitral award in terms of article 35 of the Act. By consent of the parties the three matters were consolidated. This judgment therefore relates to the three matters and HC 4914/18 shall be treated as the main matter and parties shall be referred accordingly.</p> <p>At the hearing of this matter the applicant raised a preliminary issue that the first there was no first respondent before the Court. It was submitted for the applicant that the deponent to the first respondent’s opposing affidavit was not properly authorized to represent it. Applicant insisted on the production of the first respondent’s Trust Deed to verify whether the alleged trustees who authorized the deponent to the first respondent’s affidavit were indeed trustees. Further that one HRJ Skinner said to be a trustee was not properly appointed therefore he could not authorize the deponent to represent the applicant. Mr. Manjengwah for the first respondent attempted to sanitize the process by explaining over the bar that the other trustee had resigned in April 2017 it became necessary to appoint another trustee.</p> <p>The Trust Deed and a document confirming the appointment of HRJ Skinner as a trustee were produced. The Trust Deed has two trustees Martin Meyer Miedler ‘Miedler’ and Lionel Arthur John Skinner. Nothing was produced to show that Miedler had resigned. The document produced is vague it is worded,</p> <p>‘16th June 2017</p> <p>A meeting was held at No 3 Thornburg Avenue, Harare to appoint Mr. HRJ Skinner as a trustee of Annandale Trust.</p> <p>Mr. H.R.J Skinner resides at No 236, Dandaro, Borrowdale, and Harare.</p> <p>The trustees are therefore Mr. L.A.J. Skinner and Mr. H R J Skinner.’</p> <p>It was then signed by the said trustees. The letter leaves two things to conjecture, was it the resolution appointing HRJ Skinner or not, who were the participants in that meeting? However it was not specifically denied by the first respondent that HRJ Skinner took part in his appointment. That being the case, l accept that the appointment process was flawed and therefore his appointment was null and void.LAJ Skinner therefore cannot rely on a resolution that was not properly made. I note in passing that the Trust Deed provides that in the event that one trustee remains, it is competent for that one trustee to appoint trustee(s) clause 7.2 thereof. That should not be the end of the matter; the Court should satisfy itself whether it is truly the applicant that is litigating. It is trite that the principles applicable to Corporations on representation do not apply to Trusts see <em>Mafirambudzi Family Trust</em> v <em>Madzingira and others</em> HH 338/18<strong>.</strong> The court should ask itself if indeed LAJ Skinner is representing the applicant.</p> <p>The court accepts that a Trust may be sued in its name in terms of O 2 r 7 and 8 of the High Court Rules. A trustee can represent a trust by virtue of his position as a trustee. The Court has to satisfy itself that it is the Trust that is pursuing the matter. LAJ Skinner is a trustee in terms of the Trust Deed. That should cloth him with the authority to represent the applicant. It was submitted for the applicant that LAJ Skinner did not indicate that his authority is derived from being a trustee but that his authority is derived from the resolution. Since he was not properly authorized the matter should be dismissed on that basis. I do not agree with the submission, it is clear from the Trust Deed that LAJ Skinner is a trustee and the Court cannot just disregard that fact. Even if it is not specifically indicated in the affidavit that the authority is derived from the fact he is a trustee, the Trust Deed confirms so and he can therefore ably represent the applicant. Secondly the applicant and the first respondent’s relationship dates back to November 2014 when the agreement was signed. LAJ Skinner represented the first respondent and all the obligations placed on the first respondent were to be undertaken by LAJ Skinner. The applicant did not question LAJ Skinner’s authority then. It is my considered view that even discarding the inadequate authorization through the resolution which is not applicable to Trusts, LAJ Skinner has authority to represent the applicant by virtue of being a trustee. The Court is satisfied that it is the applicant litigating in this matter. The preliminary point is dismissed.</p> <p>In HC 4914/18 the applicant requests this court to decide on the challenge brought before the second respondent which was dismissed. According to the applicant’s founding affidavit the second respondent was not properly appointed as an arbitrator in terms of clause 14 of the agreement, he lacked the qualifications agreed to by the parties , he was compromised in the arbitration proceedings and that the first respondent’s legal practitioners were conflicted.</p> <p>The first respondent denied all the allegations raised by the applicant. In its pleadings the first respondent stated that notice was given in terms of the agreement and the applicant was aware of the referral to arbitration, that the second respondent possessed the required qualifications, that the second respondent was not compromised the applicant failed to substantiate its claim of bias and that the perceived conflict of interest in respect of first respondent’s legal practitioners is not relevant to this application. Nothing was filed for the second respondent.</p> <p>Where a party seeks to challenge a tribunal, Article 13 of the Act provides for the challenge procedure. Parties are at large to agree on a procedure to challenge an arbitrator. In the absence of such an agreement a party who intends to challenge an arbitrator shall do so within fifteen days after becoming aware of the constitution of the arbitral tribunal. Where such a challenge is made the arbitral tribunal shall decide on the challenge. In terms of subsection (3) thereof in the event that the challenge is dismissed the aggrieved party may request this court to decide on the challenge. A reading of that article implies that the challenge is exclusively meant to challenge the arbitral tribunal only. Applicant’s challenge that first respondent’s legal practitioners are conflicted is not provided for in terms of article 13 and therefore irrelevant for the purposes of this application as correctly pointed out for the first respondent. I shall deal with the issues raised in the application.</p> <p><em>Whether adequate notice was given in terms of the agreement</em></p> <p>Clause 14 of the agreement provides,</p> <p>‘In the event of any dispute, claim or disagreement of whatever nature or however arising in relation to the agreement contained herein, the aggrieved party shall be entitled, after giving the other party seven days notice, to refer the matter to the Commercial Arbitration Centre in Harare</p> <p> </p> <p>14.1 the President for the time being of the Centre shall appoint an arbitrator to hear the dispute….”</p> <p> </p> <p>The applicant alleged that it was not given the seven days notice. The first respondent alleged that the notice was given in November 2017. In any event a challenge in terms of Article 13 of the Act should be confined to the grounds as set out in Article 12 (2) of the Act. I did not hear Mr <em>Nyapadi </em>controvert this submission. The wording of Article 12 (2) implies that an arbitrator may be challenged only where there are doubts in respect of his impartiality, independence or does not possess qualifications as agreed by the parties. See <em>Mukuruva </em>v <em>Hon Ms E Mganyani</em> <em>and Anor </em>HH 87/17. The challenge based on the time lines that parties agreed to does not fall within the contemplation of the said article.</p> <p>            Even if the court were to assume for a moment that the challenge is within article 12 (2) of the Act, the applicant still has no case. It is not in dispute that on 23 November 2017 the first respondent’s legal practitioners wrote a letter to the applicant’s legal practitioners. In that letter the first respondent expressed its intention to cancel the agreement due to the breach of agreement. The last paragraph of the letter indicated,</p> <p>            “In the event that your client disputes the cancellation of the joint venture Agreement, please       kindly let us know so that we may refer the matter to the Commercial Arbitration Centre for    the appointment of an arbitrator.”</p> <p> </p> <p>            By letter dated 30 November 2017, the applicant’s legal representatives replied and indicated that there has always been a dispute regarding the breach and noted,</p> <p>            “We thus advise that you proceed in terms of the agreement.”</p> <p> </p> <p>            In essence the response by the applicant’s legal practitioners shows that there was a dispute and the first respondent was at liberty to refer the matter to arbitration. The letter dated 23 November 2017 coupled with the first respondent’s response was notice that the matter will be referred to arbitration. It is not envisaged that a notice should be elegantly drafted; a notice is simply that, to advise the other party of the intended referral. The first respondent cannot allege that it was not aware that the matter was to be referred to arbitration anytime after the lapse of seven days from the 30th of November 2017.The first respondent referred the matter to arbitration on the 13th of December 2017 when the seven days had lapsed. The first arbitrator was appointed on 15 December 2017. The court accepts that adequate notice was given to the applicant in terms of clause 14 of the agreement.</p> <p><em>Whether the second respondent possessed the qualifications agreed by the parties.</em></p> <p>            The applicant submitted that the pleadings filed of record show that the parties agreed to appoint a retired judge to arbitrate over the dispute between the parties as provided for in Art 11 (2) of the Act. For the first respondent it was submitted that the parties did not agree to such qualifications and alternatively the parties engaged on the appointment of a retired judge but did not agree.</p> <p>            In the agreement the parties agreed that the sitting President of the Commercial Arbitration Centre ‘the Centre’ shall appoint an arbitrator to hear the dispute. No specific qualifications are provided. The agreement has a variation clause which provides that any variation of the agreement shall be binding only if reduced to writing and signed by each of the parties. The applicant contended that clause 14 was varied but the court was not shown the signed variation. The pleadings show that the matter was referred to the Centre and the President appointed Mr Lloyd on 15 December 2017 to arbitrate. There was no engagement or talk of a retired judge then, even as far back as November 2017 when  the applicant was put on notice about the referral. According to the second respondent, he was appointed on 26 January 2018. This was properly done in terms of the agreement. On 30 January 2018 the applicant’s legal representatives wrote to the first respondent’s legal representatives advising that their client preferred a retired judge to preside over the matter. At the time the applicant engaged the first respondent with a view to have a retired judge appointed the second respondent had been appointed in terms of the agreement. The communications between the parties show that the parties engaged but no agreement was reached. There is no variation to talk about firstly because the parties did not reduce anything into writing as per the agreement secondly the engagements were not conclusive. The parties did not therefore agree to any qualifications. The second respondent was appointed in terms of the agreement.</p> <p><em>Impartiality of the second respondent </em></p> <p>In evaluating bias or partiality on the part of an arbitrator the applicable test is an objective one. The question is whether there is a real likelihood of bias, whether a reasonable or right thinking man would believe that there was such likelihood. The court does not have to consider the subjective circumstances of the arbitrator that he could still conduct himself partially where some improper conduct is shown to exist. In <em>EBA Zimbabwe (Pvt) Ltd</em> v <em>Old Mutual Unit Trusts (Pvt) Ltd and Another</em> HH 556/09 Patel J (as he then was) cited the case of <em>International Airport Authority of India</em> v <em>Bali &amp; Another</em> (1988) LRC (Comm) 583 at 587-588 wherein the court elaborated the approach to be taken that ,</p> <p>“It is well said that once the arbitrator enters into arbitration, the arbitrator must not be guilty of any act which can possibly be construed as indicative of partiality or unfairness. It is not a question of the effect which misconduct on his part had in fact upon the result of the proceeding, but of what effect it might possibly have produced. It is not enough to show that, even if there was misconduct on his part, the award was unaffected by it, and was in reality just; the arbitrator must not do anything which is not in itself fair and impartial. ….</p> <p>It is well settled that there must be a real likelihood of bias and not mere suspicion of bias before the proceedings can be quashed on the ground that the person conducting the proceedings is disqualified by interest. … There must be reasonableness in the apprehension of bias in the mind of the party. The purity of administration requires that the party to the proceedings should not have apprehension that the authority is biased and is likely to decide against the party. But we agree with the learned judge of the High Court that it is equally true that it is not every suspicion felt by a party which must lead to the conclusion that the authority hearing the proceedings is biased. The apprehension must be judged from a healthy, reasonable and average point of view and not on the mere apprehension of any whimsical person.</p> <p> </p> <p>The apprehension should not be remote or far- fetched it must be real to a reasonable man. The onus is on the applicant to demonstrate such bias. In this case the following issues were raised.</p> <ul> <li>That the second respondent is currently engaged by NSSA as its legal practitioner, NSSA is interested in 51% of the shares in Beatrice Mine (Pvt) Ltd.</li> <li>That one Vela the NSSA Chairperson then offered to buy the shares and is a friend to the second respondent.</li> <li>That the second respondent refused to release the audio recording of the hearing of May 10, 2018.</li> <li>That the second respondent did not respond to the applicant’s objections and the legal representative’s correspondence raising issue with his appointment.</li> </ul> <p>In response the first respondent denied the allegations.</p> <ul> <li>That NSSA did not intend to buy the shares in Beatrice Mine (Pvt) Ltd, the minute produced show that alternative funding partners were being engaged.</li> <li>That the applicant failed to show that Vela and the second respondent were friends. In any event there is no evidence that Vela had offered to buy the shares. The dispute between the applicant and the first respondent relates to the breach of contract and not the sale of shares.</li> <li>That the audio file was irrelevant to the proceedings and thus the application for its production was correctly dismissed.</li> </ul> <p>It is common cause that neither NSSA nor Vela was before the second respondent. A reading of the minutes wherein NSSA was referred to, in my view does not confirm that NSSA was interested in 51% of the shares in the company. It is recorded at p 95 of HC9967/18 that;</p> <p>“Mr. Holme asked whether Annandale had other funding options that had not been shared with Pomelo. Mr LAJ Skinner confirmed that there had been discussions with the NSSA Fund and that these discussions had been shared with Pomelo verbally.”</p> <p> </p> <p>The minutes do not show any interest by NSSA in the 51% shares as alleged. The funding model was not disclosed whether it was by way of a loan or acquisition of the shares. The minutes do not show that the discussions had materialized into something tangible. In my view even if the respondent was NSSA’ legal representative, the issue about NSSA’s interest is remote and fanciful to be relied upon to establish bias.</p> <p>It is indeed correct that the minutes indicate that NSSA was being engaged for funding. In its submission before the second respondent the first respondent actually submitted that Vela had offered $7 000 000 for the shares in the company. The offer was made on the 23rd of August 2017 there was no evidence that Vela was still interested. The applicant submitted that Vela and the second respondent were friends. It was challenged to provide the basis of the submission before the second respondent but nothing was produced except that as NSSA’s legal practitioner it used to get instructions from Vela. That in my view is not enough to establish the friendship as alleged. That was just a professional association. In the absence of further information on Vela and second respondent’s personal association l find it difficult to believe that the friendship was established. Even before this Court I did not find anything to suggest that Vela and the second respondent were very good friends. This is an allegation based on conjecture and is not sustainable. I noted that at one point the first respondent alleged that Vela did not make the offer for the $ 7 million but JCI. There is a contradiction there, but nothing turns on it, the bottom line is that it was not shown that Vela is a good friend to the second respondent. In any event in its written submission before the second respondent, in paragraph 7.4.1 the applicant unconditionally withdrew the suggestion that second respondent was a good friend of Vela.</p> <p>Indeed the objective test is premised on the mythical uninterested bystander’s impression after hearing the facts. In my view the facts set out should have substance; there must be some veracity in the facts. Bias cannot be based on suspicions or some spurious allegations otherwise adjudicators may cease to function. In this case NSSA had no vested interest in the outcome of the arbitration process, at least from the facts before the court. There was therefore no likelihood of bias on the part of the second respondent even if he was professionally linked to NSSA. The friendship with Vela was not shown. I find no merit in the point.</p> <p> </p> <p><em>The audio recording</em></p> <p>            According to the applicant the pre-arbitration hearing of 10 May 2018 was audio recorded by the second respondent. The applicant requested for the recording, the request was declined. The audio recording was important to the applicant so that it may know and confirm what transpired in order to furnish its counsel with the particulars of the hearing. Applicant said such refusal was extremely unreasonable and dubious. No further information was provided to substantiate applicant’s conclusion.</p> <p>            I agree with first respondent’s submissions, the refusal is of no relevance. The applicant does not allege anything that transpired at the pre-arbitration hearing that substantiates the second respondent’s bias as alleged. There is no allegation that the written ruling did not capture the true essence of the proceedings or that it is inadequate without the audio recording. I find nothing in the refusal to provide the audio recording to support the bias alleged. Nothing turns on this point.</p> <p><em>Response to objections</em></p> <p>            Applicant submitted that it wrote letters to the second respondent objecting to his appointment but no response was received from second respondent therefore there was a likelihood of bias.</p> <p>In terms of Article 13 (2) of the Act, within fifteen days of becoming aware of the constitution of the arbitral tribunal or after becoming aware of circumstances set out in Article 12 (2) an aggrieved party is at liberty to send a written statement of the reasons challenging the tribunal. Where the arbitrator does not withdraw from such office the arbitral tribunal shall decide on the challenge.</p> <p>            It is on record that the applicant raised issues with the arbitral tribunal, the second respondent. In his ruling in respect of the preliminary points he clearly indicated that he gave directions for parties to appear twice but the applicant did not appear. On the third pre-arbitration meeting the applicant appeared and formally presented its objection.</p> <p>            I do not read article 13 (2) to oblige an arbitrator to respond to the written statements of objections without hearing parties. In this case it is not evidence of bias for the second respondent to require the parties to appear and formally be heard on the preliminary objections. It is still within the tenets of the <em>audi alterem partem</em> to hear both parties. I do not see how the failure to respond is a show of bias. In terms of Article 13 (2) the second respondent was obliged to decide on the challenge. The second respondent decided to hear both parties before making a determination and I cannot fault him for the procedure adopted.</p> <p>            After an analysis of all the factors raised by the applicant, it is clear that the general impression is that there was no likelihood of bias. The second respondent’s decision cannot be impugned.</p> <p>            In HC 9967/18 the applicant challenges the arbitral award in terms of Article 34 of the Act that the applicant was unable to present its case that the arbitral procedure adopted was not as agreed by the parties and the model law, that the award is against the public policy of Zimbabwe and that the arbitrator may have been corruptly induced.</p> <p>            Article 34 (2) (a) (ii) gives this court power to set aside an award where a party was unable to present its case. In terms of Article 25 (b) where respondent, without sufficient cause fails to communicate its statement of defence the arbitral tribunal shall continue with the proceedings.</p> <p>            In this case it is evident from documents filed of record that after the second respondent dismissed the preliminary points raised by the applicant; he gave directions on how the matter should proceed. The applicant was to file its response/statement of defence by no later than 4.00 pm on 28 May 2018. Instead of doing so, the applicant filed an urgent chamber application with this court seeking a stay of the arbitral proceedings, which was within its rights to do. On 11 July 2018 the application was dismissed. That meant the matter was to proceed before the second respondent. Apparently the second respondent had set down the matter for trial on 11 July 2018 at 9.00 a.m the date the urgent chamber application was heard. Parties appeared before the second respondent and the matter was postponed to 16 July 2018 by consent. It is in dispute whether this was for trial or not. That issue is not relevant in the determination of this point. The applicant wrote to the second respondent objecting to the fact of the notice of set down for trial. It indicated that its legal practitioner of choice would be before the High Court in an urgent matter and therefore would not be able to attend the arbitration proceedings at the appointed date and time. True to its letter there was no appearance for the applicant on 16 July 2018 neither was there a statement of defence filed.</p> <p>            Article 18 and 19 of the Act provides the fundamental procedural aspects of the proceedings before an arbitral tribunal. Parties must be treated equally and should be given full opportunity to present their cases pursuant to the right to be heard. Procedurally the parties are at liberty to agree on the procedure to be followed in the absence of such an agreement, subject to the model law the arbitral tribunal may conduct the proceedings in such a manner as it considers appropriate. The tribunal can exercise its discretion as long as parties present their cases fully.</p> <p>            The applicant filed a request for further particulars on 18 June 2018, well after the date within which it was supposed to file its statement of defence. Apparently the first respondent did not file any response but wrote a letter to the applicant declining to provide such further particulars. I will revert to the request for further particulars in due course. The applicant was aware of the date of 16 July 2018 wherein it was supposed to appear. The arbitral tribunal’s sittings are of equal power and force. They are not supposed to be disregarded simply because applicant was appearing before the High Court. The applicant did not even seek the arbitral tribunal’s indulgence for a postponement in its letter or even by appearance. It is common practice that even if a letter is written it is mandatory that a party either in person or through its legal representative appears to make a formal application for a postponement. Failure to appear before an arbitral tribunal has its attendant legal consequences. Before this court the applicant argued that everyone has a constitutional right to be represented by a legal practitioner of its choice. That is the correct position of the law. That right does not give a litigant the right to disregard proceedings or not comply with directions. It is within the arbitral tribunal’s powers to  give directions which are generally designed to expedite the proceedings in accordance with his arbitral brief and in particular , with the provisions of Article 25(d) of the Model Law which empowers him to ‘ give directions ,with or without conditions , for the speedy determination of the claim’.</p> <p>            Since the applicant did not request for a postponement, there was no way the second respondent could have granted a postponement. The applicant was given an opportunity to present its case but it snubbed it, it cannot cry foul before this court. It was for the applicant to appear on 16 July and seek a postponement or make a case based on its request for further particulars. There was no one to motivate the request for further particulars and I cannot hold the second respondent to task for not considering the request for further particulars. Indeed the award does not indicate that a request for further particulars was made. However the determinant factor is not that, the determinant factor is that the applicant did not appear on 16 July to motivate its case. The arbitral tribunal would not have had any option but to proceed with the matter.</p> <p> There was no good and sufficient cause for the applicant not to act to protect its rights.</p> <p>            In its heads of argument the applicant included numerous issues to bolster its case. That the award misrepresented that applicant was present. This is irrelevant, it is clear in the body that the applicant was not in attendance. That the applicant and its legal practitioner’s names are on the face of the award cannot be construed strictly to mean they were in attendance.</p> <p>            The applicant referred to the correct position at law on the status of a request for further particulars <em>NEC Construction Industry</em> v <em>Zimbabwe Nonteng International (Pvt) Ltd</em> SC 59/15 and how a response to such should be made, it cannot be by way of correspondence <em>Allied Bank</em> <em>Ltd</em> v Celeb Dengu &amp; Another SC 52/16.The fact that the applicant had requested for further particulars did not entitle it or cannot be a good and sufficient reason not to appear before the second respondent. In the absence of the proper filing of the further particulars the applicant had options available to it to pursue, it chose not to. The applicant was given opportunity to present its case and unilaterally decided not to be heard.</p> <p>            The second challenge is in terms of Article 34 (2) (a) (iv) that the arbitral procedure was not in accordance with the parties’ agreement and the model law. In its heads of argument applicant literally threw in a lot more contentions that there were no reasons for the award, that there was no notice of the second respondent’s appointment, that the <em>audi alterem partem</em> rule was not observed. I have addressed most of the issues in this judgment, the applicant was given notice. The second respondent set out the basis for proceeding in the absence of the applicant on page 17 of the record the last paragraph thereof, the second respondent recorded.</p> <p>            “No papers have been filed on the merits for and on behalf of the respondent (applicant herein). Respondent also willfully absented itself from the resumed hearing that had been set down by the consent of the parties’ respective legal practitioners of record. Respondent has chosen to keep its case (if any) to itself.”</p> <p>            In my view that paragraph shows that the applicant did not appear and the second respondent found that the non appearance was willful. That should be sufficient for the purposes of arbitration to show the reason why the process proceeded. Although some elaboration could have helped but it cannot be said there were no reasons. The applicant alleged that there was no notice of the second respondent’s appointment. It is evident that such notice was given. The applicant’s letter dated 30 January 2018 to Wintertons confirms such notice to have been given the first paragraph noted;</p> <p>            “we refer to the email from the commercial arbitration centre to your office and ours dated           January 17 and 23, 2018 respectively.”</p> <p> </p> <p>            The email referred to is the notice from the Centre. In its heads of argument the applicant said it did not participate in the appointment of the second respondent. Indeed the applicant did not participate because the parties agreed that the Centre through its President shall appoint an arbitrator. It is trite that Courts do not make contractual terms for parties; its role is to hold each party accountable according to the agreed terms. On the right to be heard, this court has disposed of that issue. There is no merit even on those numerous points raised under article 34 (2) (iv) of the Act.</p> <p>            The third challenge is that the award violates the public policy of Zimbabwe because the second respondent ordered cancellation of the contract and no restitution was ordered. Applicant underscored the principle of restitution in integrum that a party cancelling an agreement is obliged to tender back what it received from the guilty party on the authority of <em>Hall-Thermotenk Natal (Pty) Ltd</em> v <em>Hardman</em> 1968 (4) SA 818 (D).</p> <p>            Article 34 (5) (b) provides that an award is against public policy if it breaches rules of natural justice. Numerous cases have amplified what public policy entails. In <em>ZESA</em> v <em>Maposa </em>1999 (2) ZLR 452 referred to by the first respondent Gubbay CJ (as he then was) said it is where;</p> <p>            “some fundamental principle of law or morality or justice is violated”</p> <p>           </p> <p>and at 466 E – H the court cautioned;</p> <p>            “An award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or in law. In such a situation the court would not be justified in setting the award aside.”</p> <p> </p> <p>In <em>Peruke Inv (Pvt) Ltd</em> v <em>Willoughbys Inv (Pvt) Ltd and Another</em> SC 11/15 the court said the public policy ground should be applied in the most glaring instances of illogicality, injustice or moral turpitude’ and also that</p> <p>            “Under article 34 or 36 the court does not exercise an appeal power and either uphold or set        aside or decline to recognize and enforce an award by having regard to what it considers should    have been the correct decision.”</p> <p> </p> <p>            The two cases are authority that the courts will not lightly interfere with an award on the grounds of public policy unless the award or its effects offends the roots of the concept of justice or morality in Zimbabwe.</p> <p>            In this case the applicant’s basis is that the first respondent did not offer restitution. I note that in fact when the first respondent cancelled the agreement on the 23rd of November 2017 offered to tender the amount invested into company, although the amount was not explicitly stated. In its claim before the second respondent the first respondent did not offer such restitution. In all the cases I have had recourse to on restitution there is no authority for the position that where an innocent party does not tender restitution, the claim cannot succeed. It is for the aggrieved party to counter claim restitution in the absence of such an offer.</p> <p>            The facts of this case remain in dispute as to whether the money paid to the company was a loan or meant to purchase the shares. The issue was not before the Court for determination. However, what the agreement shows is that the company was separate from the applicant and the first respondent. The first respondent initially held 100% of the shares in the company. The applicant was to advance an initial loan to the company of $500 000 which would result in applicant getting 74% of the shares in the company. It is not in dispute that the money was paid and shares issued. It is the act of advancing the loan to the company that gave applicant entitlement to the shares. The further $4 000 000 (four million dollars) was also a loan to the company. The loans were to be repaid in terms of clause 4.6. The shares were therefore issued to the applicant in terms of the agreement. The money paid was not to buy shares but a loan to the company. <em>Prima facie</em> therefore there was nothing gained by the first respondent. The second respondent properly addressed the issue before him as to whether there was a breach. There is ample documentary evidence showing that the applicant failed to provide the $4 000 000 for the second phase of the project in terms of the agreement. For instance on 16 August 2015 the first respondent by letter highlighted the breach and requested that the applicant remedy the breach, this was not done. Thus on 23 November 2017 the first respondent cancelled the agreement. I find nothing against the public policy of Zimbabwe. The agreement was cancelled in terms of the agreement.</p> <p>                        Although in the applicant’s affidavit the fourth challenge  was in terms of Article 34 (2) (b) (ii) as read with article 34 (5) of the Act there were no further submissions to demonstrate that the award was induced by fraud or corruption. It was just a bare allegation which cannot be considered further. The application should be dismissed in its totality.</p> <p> </p> <p>In HC 7290/18 the first respondent seeks the registration of the award issued by the second respondent.</p> <p>            In its opposing affidavit the first respondent raised a preliminary issue that HC 4914/18 the challenge in terms of Article 13 (3) should be heard first. The matter has been disposed of herein. It also raised issue on the authority of the LAJ Skinner to represent the applicant that has also been disposed of herein. On the merits the first respondent raised the issue that it was not heard. That issue I have addressed in this judgment and therefore cannot stand in the way of registration. That the award is against public policy, the issue has been dismissed. In essence the grounds for opposing registration were raised in HC 4914/18 and HC 9967/18 which applications I have disposed of in this judgment. There is no legal basis to disallow the registration of the award.</p> <p>            As a rule, costs follow the cause and courts do not easily accede to a prayer for an award of costs beyond the ordinary scale. The rule may be departed from where the unsuccessful party’s conduct has been unreasonable see <em>Borrowdale Country Club</em> v <em>Murandu </em>1987 (2) ZLR 77 (H).</p> <p>            In HC 9967/18 the first respondent requested for costs on a higher scale. No basis was laid for such a request. There is no evidence of unreasonableness or some reprehensive conduct by the applicant. Similarly in HC 4914/18 there is no evidence of abuse of court process it was within the applicant’s rights to approach the court. The applicant’s conduct before the first respondent indeed left a lot to be desired but that cannot be said of its conduct before this court.</p> <p>            From the foregoing the following order is made.</p> <ol> <li>The application under HC 9967/18 be and is hereby dismissed with costs.</li> <li> The application for setting aside of the arbitral award HC 4914/18 is hereby dismissed with costs.</li> <li>The arbitral award issued by the Honourable Mr ABC Chinake dated the 1st of August 2018 be and is hereby registered as an order of this court.</li> <li>The cancellation of the Joint Venture Agreement between applicant and the first respondent was lawful and the said cancellation is hereby confirmed.</li> <li>The applicant shall sign all and any documents that may be necessary to facilitate the return to the first respondent the 74% shares currently registered in its name and held in the JV Company within seven (7) days of the date hereof, falling which the deputy sheriff shall be entitled to sign such documents on its behalf;</li> <li>The applicant shall remove its Directors from the Board of Directors of the JV Company within seven (7) days of the date hereto; falling which their appointment be and is hereby set aside with effect from the 8th day of August 2018 and the Deputy Sheriff shall be entitled to sign such documents on their behalf.</li> <li>The first respondent shall pay the costs of and incidental to the Arbitration on the scale utilized in the High Court for contested litigation matters.</li> <li>That respondent shall pay costs of this application.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Muza and Nyapadi</em>, applicant’s legal practitioners</p> <p><em>Wintertons</em>, 1st respondent’s legal practitioners</p> <p>           </p> <p>           </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/33/2019-zwhhc-33.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=39943">2019-zwhhc-33.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/33/2019-zwhhc-33.pdf" type="application/pdf; length=192527">2019-zwhhc-33.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/hr">HR</a></li><li class="vocabulary-links field-item odd"><a href="/tags/have-his-cause-heard-fair-trial">Have his cause heard (fair trial)</a></li></ul></span><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arbitrator">Arbitrator</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/challenge-impartiality">challenge to impartiality of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/setting-aside-award">setting aside award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/referral-matter">Referral of matter to</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/have-his-cause-heard-fair-trial">Have his cause heard (fair trial)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2014/338">Mafirambudzi Family Trust v Madzingira &amp; Others (HC 1522/13) [2014] ZWHHC 338 (27 May 2014);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2017/87">Mukuruva v Hon. Maganyani (Arbitrator) &amp; Another (HH 87 - 17 HC 5550/15) [2017] ZWHHC 87 (08 February 2017);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/59">NEC (Construction Industry) v Zimbabwe Nantong Int. (Pvt) Ltd. (Civil Appeal No. SC 616/15) [2015] ZWSC 59 (20 October 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2016/52">Allied Bank Ltd. v Dengu &amp; Another (52/2016 Civil Appeal No. SC 503/15) [2017] ZWSC 52 (30 June 2016);</a></div><div class="field-item even"><a href="/node/2044">Peruke Inv. (Pvt) Ltd v Willoughbys Inv. (Pvt) Ltd &amp; Another (Civil Appeal No. SC 208/14) [2015] ZWSC 11 (18 March 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1996/6">Arbitration Act [Chapter 7:15]</a></div></div></div> Thu, 31 Jan 2019 14:35:37 +0000 admin 9261 at https://old.zimlii.org Infralink (Private) LImited v The Sheriff of Zimbabwe N.O & 2 Others (HH 1-19, HC 11550/18) [2019] ZWHHC 1 (20 December 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/1-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>INFRALINK (PRIVATE) LIMITED</p> <p>versus</p> <p>THE SHERIFF OF ZIMBABWE N.O</p> <p>and</p> <p>CENTRAL SOURCES MANAGEMENT CONSULTANTS (PVT) LTD t/a TAX MANAGEMENT SERVICES</p> <p>and</p> <p>NMB BANK LIMITED</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAKUNYE J</p> <p>HARARE, 17 December 2018 &amp; 20 December 2018</p> <p> </p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p><em>R. G Zhuwarara, </em>for the applicant</p> <p><em>R Mabwe</em>, for the 2nd respondent</p> <p> </p> <p> </p> <p> </p> <p>CHITAKUNYE J. The applicant approached this court on a certificate of urgency seeking an interim relief couched as follows:</p> <p>Pending the return date, the execution of the garnishee order in case number</p> <p>HC 9556/18 and any execution whatsoever of the order in case number HC 150/17 be and is hereby stayed.</p> <p>The final order was couched as follows:</p> <ol> <li>The execution of the default judgment granted in case number HC150/17 be stayed pending determination of application for rescission of judgment filed under case number HC 8334/18</li> <li>Costs of suit shall be costs in the cause in the application for rescission under case number HC 8334/18.</li> </ol> <p>The circumstances under which the application was made were that;</p> <p>The second respondent obtained an arbitral award dated 6 October 2016 against the applicant for monies due. When the debt remained unsatisfied the respondent applied for the registration of the arbitral award with this court. On 26 February 2018 a hearing for the registration of the award was held under case HC 150/17. At the conclusion of the hearing court did not pass its ruling, it instead adjourned to await the determination of an application for setting aside of the arbitral award in question under case number HC 62/17 which applicant had filed.</p> <p>On 19 July 2018, the application for setting aside the arbitral award was dismissed in default of the applicant. On 24 July 2018 second respondent through its legal practitioners wrote to the judge who had been seized with the registration of the award advising that the application for setting aside of the arbitral award had been dismissed so could the judge proceed to make his ruling on the application for registration of the award,.  On the strength of the said correspondence, on 27 July 2018, the judge in question granted an order registering the award as an order of this court. That order dated 27 July 2018 reflected that applicant was in default hence it was a default order.</p> <p>On 12 September 2018 applicant filed an application for rescission of the default judgement in terms of rule 449(1) of the High Court Rules, 1971 seeking to rescind the judgement in HC 150/17. On 8 November 2018 applicant applied for the set down of the application in question.</p> <p>In the meanwhile after obtaining the default judgement, second respondent obtained a writ of execution and instructed the sheriff to execute. On 20 September 2018 the sheriff attempted execution at applicant’s address of service and made a <em>nulla bona</em> return after the sheriff failed to identify assets belonging to the applicant as the premises were also occupied by ZINARA.</p> <p>It was after the <em>nulla bona</em> return that respondent applied for and obtained a garnishee order on 26 November 2018 which it then tried to enforce. As a consequence third respondent informed applicant of the garnishee order and this led to the applicant approaching this court on a certificate of urgency to stop the enforcement of the garnishee order.</p> <p>The applicants alleged that the need to act arose on 13 December 2018 when it was informed by third respondent of the garnishee order which garnishee order had been obtained without its knowledge.</p> <p>The second respondent opposed the application. In its opposition second respondent raised some <em>points in</em> <em>limine</em>; namely that there is no proper application as the form filed by applicant is not signed and dated. The certificate of urgency is also not dated. The second point was that the matter was not urgent at all.</p> <p>The second respondent also argued that there were material non-disclosure.</p> <p>1 no proper application</p> <p>Counsel for second respondent argued that the purported application is not signed and dated and the certificate of urgency is not dated. As a consequence of these omissions the application is a nullity. The applicant’s counsel on the other hand whilst conceding the omissions contended that such omissions did not invalidate the application as the irregularities did not prejudice the respondent.</p> <p>A perusal of the copies of the application filed of record shows that it was signed but not dated. The same for the certificate of urgent. Such omission on its own would not be fatal to the application as indeed no prejudice would be suffered by respondent. The failure to endorse the date when the application and certificate of urgency were signed may be viewed as technical errors with no impact on the substance of the application. I did not hear respondent to allege that it had suffered any prejudice as a result of the omissions. In <em>Gardiner v Survey Engineering (PTY)Ltd</em> 1993(3)SA 549 court cited with approval the words of  CLOETE J as he then was ) in <em>Uitenhage Municipality v Uys</em> 1974 (3) SA 800 (E) at 805D-F wherein the learned judge stated that:</p> <p>“The principle has repeatedly been laid down in our courts that the Court is entitled to overlook, in proper cases, any irregularity in procedure which does not work any substantial prejudice to the other side(see <em>The Civil Practice of the Superior Courts in South Africa</em> 2 ed by <em>Herbstein and van</em> <em>Winsen</em> at 356 and the authorities there cited.) In <em>Trans-African Insurance Co. Ltd v Maluleka</em> 1956 (2) SA 273(A) at 278 SCHREINER JA says:</p> <p>“.. technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.”</p> <p>Whilst the raising of irregularities is not objectionable it is important to demonstrate the prejudice occasioned by such irregularities. This should not, however, be taken as a licence for lackadaisical approach to pleadings by legal practitioners. In <em>casu</em>, respondents counsel did not indicate what prejudice respondent will suffer except to insist that applicant’s legal practitioner should have sought court’s indulgence and not seek to take it as given that such irregularity will always be condoned. That is a valid point. It is however my view that the explanation by applicants counsel and his request for court’s indulgence is adequate.</p> <p>The next <em>point in limine</em> pertains to material non-disclosure. Respondent’s counsel averred that applicant is not being truthful but is taking court for granted.  Counsel alluded to at least two instances of material non-disclosure. The first is that applicant deliberately did not disclose that there had been a previous attempt to execute on the judgement granted by Mangota J on 20 September 2018. The return of service in respect of this attempted service shows that execution was resisted by ZINARA. The attempt was made at ZINARA premises where applicant is housed and so in respondent’s view applicant must have been aware of this.</p> <p>Another factor pointing to the fact that applicant must have been aware is the fact that in its founding affidavit for application for rescission of a default judgement applicant had stated that ZINARA and Applicant are one and the same. Though this assertion was not correct as the two are different, the point against applicant is that the two entities share the same premises and applicant’s chief executive officer and other officials are said to be housed at the ZINARA premises where execution was attempted.</p> <p>The second material non-disclosure pertains to applicant’s assertion to the effect that this urgent chamber application is predicated on an application for rescission of a default judgement, and the reason for that default judgement was that applicant had appeared before a different judge who was seized with a matter involving ZINARA. According to paras 5.11 and 5.12 of applicants founding affidavit, the error was because ZINARA and Infralink are one and the same entity so, naturally, reference to ZINARA was also taken to mean Infralink. As a consequence the applicant mistakenly appeared before a judge dealing with a matter in which ZINARA was a party believing it was its case.</p> <p>Such an explanation is hard to accept because clearly ZINARA is a public entity whilst Infralink is a private entity; the two are not the same and applicant was not able to show any proceedings where the two were cited interchangeably. Clearly applicant was not being truthful.</p> <p>The applicant’s response to this point was to the effect that reference to ZINARA and applicant being one and the same entity was a mistake; how such a mistake could have occurred was not explained.</p> <p>In <em>Graspeak Investments (Pvt) Ltd v Delta Operations (Pvt) Ltd and Another</em> 2001 (2) ZLR 551 (H) court held that:</p> <p>“an urgent application is an exception to the <em>audi alteram partem</em> and, as such, the applicant is expected to disclose fully and fairly all material facts known to him or her. Legal practitioners should always bear this in mind before certifying that a matter is urgent. Although the court has discretion to grant or dismiss an application even where there is material non-disclosure, the court should discourage urgent applications, whether ex parte or not, which are characterised by material non-disclosure, mala fides or dishonesty…”</p> <p> </p> <p>The above sentiments entail that court can still exercise its discretion despite the material non-disclosure. It is however important to consider the circumstances of each case and the effect of such non –disclosure.</p> <p>In <em>casu,</em> the material non-disclosure affects the question of when the need to act arose which is an aspect in the next <em>point in limine</em>.</p> <p>Lack of urgency</p> <p>The respondent argued that the need to act arose when the arbitral award was granted on 27 July 2018 because from that date applicant was aware respondent would seek to enforce the order. If that did not alert applicant, then the attempted execution on the 20th September 2018 must surely have alerted applicant that respondent was intent on enforcing the order. In this regard the applicant’s contention that it was not aware of the attempted execution was trashed as not truthful at all as ZINARA and Applicant share same premise and that was the address for service and execution. Respondent’s counsel averred that applicant sought to hide behind ZINARA instead of meeting its obligations. That false sense of success that it had avoided payment of the judgement debt by using the disguise of ZINARA and ensuring that the sheriff could not attach its property through claims that all the property housed at ZINARA house belonged to ZINARA was no saviour. This false sense of success was not enough to show that applicant was not aware of the attempted execution. Applicant up to this date has not disputed that it is based at that address and that is its address of service. The service by the sheriff must be taken for the truth of what happened. The Sheriff went to the address of execution and made a <em>nulla bona</em> return.</p> <p>Despite the attempted service, which in my view must have come to the notice of the applicant, applicant did not deem it fit to apply for stay of execution. Applicant was only jolted to act against execution upon learning that respondent had obtained a garnishee order.</p> <p>Whilst the applicant referred to its action in applying for rescission of judgement on 12 September 2018, that in my view was not the sort of conduct expected when it became clear on 20 September that respondent had attempted to execute.</p> <p>It is clear to me that but for the garnishee order, applicant would not have sought this order, yet that debt had been outstanding since the registration of the arbitral award on</p> <p>27 July 2018.</p> <p> The question of what constitutes urgency has been debated in these courts for long and what emerges is that each case must be taken on its own circumstances. The broad circumstances were enunciated in such cases as the <em>Kuvarega </em>v<em> Registrar &amp; Anor</em> 1998 (1) ZLR 188; <em>Dextiprint</em> <em>Investments (Pvt) Ltd </em>v<em> Ace Property Investment company</em> HH 120/2002. In this latter case court alluded to the fact that:</p> <p>“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. This court has laid down the guidelines to be followed. If by its nature the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with that matter on an urgent basis. Further, it must also be clear that the applicant did on his own part treat the matter as urgent. In other words if an applicant does not act immediately and waits for doomsday to arrive, and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis.”</p> <p>See also <em>Madzivanzira &amp; Ors </em>v<em> Dexprint Investments (Pvt) Ltd &amp; Anor</em> 2002 (2) ZLR 316 (H).</p> <p>In <em>Document support Centre (Pvt) Ltd </em>v <em>Mapuvire</em> 2006(1) ZLR 240 (H) at 244C -D </p> <p>MAKARAU JP (as she then was) opined that:</p> <p>“In my view , urgent applications are those where if the courts fail to act, the applicants may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so to the prejudice of the applicant.”</p> <p> </p> <p>It is thus clear that what constitutes urgency is not only the arrival of the day of reckoning but also that when the need to act arises the matter cannot await or else applicant will suffer irreparable harm. It is not every harm or inconvenience that constitutes irreparable harm. It is thus upon applicant to satisfy court that he/she will suffer irreparable harm if the relief is not granted.</p> <p>In<em> casu</em>, the applicant did not treat the matter as urgent. If anything applicant’s conduct seems to be one of buying time.</p> <p>The other aspect related to the issue of urgency is that a litigant will be alleging that if the relief is not granted they will suffer irreparable harm. In <em>casu,</em> the garnishee order was to attach funds in applicant’s account and nothing more. In para 8.10 applicant puts the irreparable harm anticipated in these words:</p> <p>‘It is clear that the Applicant’s financial proprietary and/or economic interests are under threat of impairment in circumstances where the underlying basis for the granting of judgement in default to the second respondent was not justified.’</p> <p> </p> <p>I am not satisfied that such is the envisaged irreparable harm. This assertion by applicant simply dovetails with prior paragraphs in which it makes it clear that its borne of contention is the manner in which the garnishee order was granted and that it had applied for rescission of the default judgement. Applicant does not state clearly what irreparable harm it would suffer which warrants this matter to be determined on urgent basis; failure of which it can be said court should not bother. The funds that will have been garnished can always be recovered should applicant succeed in rebutting the second respondent’s claim. It is high time debtors realised that diving and ducking in avoidance of creditors is not a solution to the debt, but is a recipe for further and even more embarrassing forms of execution.</p> <p>In conclusion I am of the view that the circumstances of this matter do not make a good case for urgency.</p> <p>Accordingly, the application is hereby struck off with applicant to pay cost on the ordinary scale.</p> <p> </p> <p> </p> <p><em>Mutamangira &amp; Associates</em>, applicant’s legal practitioners</p> <p><em>C Nhemwa &amp; Associates</em>, 2nd respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/1/2019-zwhhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30745">2019-zwhhc-1.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/1/2019-zwhhc-1.pdf" type="application/pdf; length=143141">2019-zwhhc-1.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/enforcement">enforcement</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/setting-aside-award">setting aside award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/chamber-application">chamber application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span> Tue, 22 Jan 2019 09:12:10 +0000 admin 9248 at https://old.zimlii.org Mashonganyika v Justice George Smith (Retired) N. O & 3 Others (HH605-18, HC11495/17) [2018] ZWHHC 605 (03 October 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/605 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                                                                                                              </p> <p>FARAI MASHONGANYIKA</p> <p>versus</p> <p>JUSTICE GEORGE SMITH (RETIRED) N.O</p> <p>and</p> <p>TRIBAC (PVT) LTD</p> <p>and</p> <p>BRIAN COCKER</p> <p>and</p> <p>ROY MANUEL</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 17 July and 3 October 2018</p> <p> </p> <p> </p> <p><strong>Opposed Matter</strong></p> <p> </p> <p><em>W. Chinamora</em>, for applicant</p> <p><em>D Ochieng</em>, for 2nd respondent</p> <p><em>J Wood</em>, for 3rd and 4th respondent</p> <p> </p> <p> </p> <p>            TAGU J: This is an application for the setting aside of an Arbitral Award that was handed down by the first respondent which Arbitral Award is dated the 7th of August 2017 and was only availed to the applicant’s legal practitioners on 12 September 2017. The application is based on the applicant’s view that the afore-said award offends the public policy of Zimbabwe.</p> <p> It is settled law that an arbitral award ought to be set aside if its enforcement would offend the public policy of the land. See <em>ZESA</em> v <em>Maphosa</em> 1999 (2) ZLR 452 at p 466 where it was held that if an arbitral award that constitutes an affront to the conception of justice of a fair- minded person, then such award must be set aside. See also the seminal case of <em>Delta Ops (Pvt)</em> <em>Ltd</em> v <em>Origen Corp (Pvt) Ltd</em> 2007 (2) ZLR 81 (S) at p 88E.</p> <p>The facts of the matter are that the second respondent funded the growing of tobacco by the applicant and the forth respondent through a vehicle named Farm Track (Pvt) Ltd in which both the applicant and forth respondent are directors and shareholders in equal shares. The funding was disbursed pursuant to three agreements signed between applicant and the said Farm Track (Pvt) Ltd. Of the three agreements the third and fourth respondents bound themselves  jointly and severally as surety and co-principal debtors for the monies owed to the second respondent by the said Farm Track. In respect of the third agreement the applicant bound herself as surety and co-principal debtor together with the fourth respondent. Funds were duly disbursed. However, pursuant to a failure to pay back the disbursed funds the first respondent instituted arbitration proceedings against the said Farm Track (Pvt) Ltd and the third and fourth respondents in respect of the first two agreements and against Farm Track (Pvt) Ltd together with applicant and fourth respondent in respect of the third agreement. During the arbitration proceedings the third and fourth respondents raised a preliminary point that they ought to be removed from the proceedings on the basis of vis major. Their allegation was that because they were allegedly excluded from all the farming activities of the said Farm Track (Pvt) Ltd by the applicant the alleged exclusion constituted a vis major. They alleged that by virtue of the conduct of Mrs Farai Mashonganyika, (the applicant), firstly, forcing Mr Roy Manuel, the fourth respondent to resign as a director of the Farm Track (Pvt) Ltd and excluding him from all farming operations, and secondly, forcibly evicting the third respondent Brian Cocker, under threat, and taking complete control of Farm Track (Private) Limited and all farming activities , it is the Farm Track (Pvt) Ltd and the applicant Farai Mashonganyika alone who should be held liable to the Claimant Tribac (Private) Limited. The acts of Mrs Farai Mashonganyika the applicant constituted a vis major since they were entirely dependent on the farming activities of Farm Track (Pvt) Ltd to service the loans and this was accepted by all the parties to the agreement. The learned Honourable Arbitrator (first respondent) issued an interim arbitral award wherein he upheld the preliminary point and ruled that the sureties signed by the third respondent and the fourth respondent in respect of a loan made by the Claimant to the then first respondent (Farm Track (Pvt) Ltd are abolished and are therefore null and void.</p> <p>It is the arbitrators finding that is now being said by the applicant to offend the public policy of Zimbabwe and ought to be set aside.</p> <p>At the hearing of the matter three points <em>in limine</em> were raised by the respondents. The first preliminary point was that the matter was raised out of time. The second point was that there is non-joinder of Farm Track (Pvt) Ltd the principal debtor which makes the application fatally defective and the last point was that the applicant lacked locus standi as she is only a surety. It was argued that the second respondent is the one which has the locus standi.</p> <p>WHETHER MATTER WAS RAISED OUT OF TIME</p> <p>The applicant opposed the first point <em>in limine</em> and relied on the case of <em>Peruke Investments (Private) Limited</em> v (1) <em>Willoughby’s Investment (Private) Limited</em> (2) The Honourable Mr Justice (Retired) A.R. Gubbay SC 11/ 2015 at p 8 of the cyclostyled judgment where Patel JA said:</p> <p>“Secondly, as I have already noted, although the award <em>in casu</em> was said to have been ready for collection on 25 February 2011, it was only released and availed to the first respondent on 14 March 2011, after the question of payment of the arbitrator’s fees had been satisfactorily resolved. Thus, the intervening delay of two and a half weeks was not solely attributable to the first respondent; nor can this delay be regarded as having been unduly lengthy. On these particular facts, it seems to me churlish to penalize the first respondent for having disregarded that short period in computing the prescribed three month period for challenging the award. I would however add that it might be necessary and appropriate to adopt a different approach on a different set of facts, where the delay in securing a copy of the award is significantly inordinate and is entirely due to the supine or calculated dilatoriness of the party concerned.”</p> <p>In <em>casu</em> the award is dated the 7th of August 2017 and was availed to the applicant’s erstwhile legal practitioners on 12 September 2017. The matter was filed on 12 December 2017. Calculating the period from date of delivery to applicant’s erstwhile legal practitioners and the date of filing the period is exactly three months. In my view if there was any delay it cannot be said to have been an inordinate delay. I will dismiss the first point <em>in limine</em>.</p> <p>As to the second point <em>in limine</em> of non-joinder of Farm Track (Pvt) Ltd, this is not fatal to the application. Order 13 Rule 87 (1) of the rules of this Honourable Court, 1971 says:</p> <p>“No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”</p> <p>The fact that another party was not joined in the proceedings does not disable the court from determining the issues in question as they affect the rights and interests of persons who are parties to the cause. I therefore found no merit in the second point <em>in limine</em> and I will dismiss it.</p> <p>The last preliminary point was that the applicant lacks locus standi. In this case the applicant is one of the sureties. Sureties interpose and bind themselves unto and on behalf of the Grower, its successors and assigns jointly and severally as sureties and co-principal debtors for due and punctual payment of any and all amounts due to Tribac and the due and punctual fulfilment by the Grower of all the Grower’s obligations in terms of the agreement they entered. To that extent the applicant has locus standi in this matter. The last point <em>in limine</em> is dismissed.</p> <p>AD MERITS</p> <p>This is an application for the setting aside of an Arbitral Award that was handed down by the first respondent which award is dated the 7th of August 2017 and which was availed to the applicant’s erstwhile legal practitioners on 12 September 2017 which award exonerates the third and fourth respondents who were sureties together with the applicant. The applicant says the award offends the public policy of Zimbabwe.</p> <p> The third and fourth respondents opposed the application while the second respondent indicated that it will abide by the decision of the court. While the applicant did not state in terms of which statutory provision the application is being made, it is trite that an arbitral award may be set aside on the grounds of offending public policy. However, for it to be set aside on the grounds of public policy there must be an allegation that the award was induced by corruption or fraud or that a breach of the rules of natural justice occurred, or that the reasoning or conclusion of the arbitrator goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award. Or alternatively, the applicant needs to show that the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.</p> <p>In <em>casu</em> the applicant’s contention is that the award is palpably iniquitous and offends the mind of a fair-minded person in that the applicant is now being forced to defend and possibly bear a massive debt by herself. The applicant bound herself in the same manner as the third and fourth respondents. It would therefore be manifestly iniquitous for the aforementioned parties to then face different fates. In order to address this injustice the applicant approached this Honourable Court in terms of Article 34 (2) (b) (ii) of Arbitration Act [<em>Chapter 7.15</em>].</p> <p>Whether the arbitrator was right or wrong in his or decision in the celebrated case of  <em>ZESA</em> v <em>Maposa supra</em>, which was quoted with approval in <em>Beazely </em>v <em>Kabell </em>2003 (2) ZLR 198 (S) at 201D-E it was said:</p> <p>“Under article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognize and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequality that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it. The same consequence applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”</p> <p> </p> <p>As to what constitutes an award to be viewed as being contrary to public policy has been decided in a number of cases as I outlined above. In <em>Delta Operations (Pvt) Ltd</em> v <em>Origen</em> <em>Corporation (Pvt) Ltd</em> SC-86-06 the superior court stated that:</p> <p>“An award cannot be held to be contrary to public policy merely because the reasoning or conclusion of the arbitrator are wrong in fact or in law. Moreover, even if it were to be found that the arbitrator‘s decision was erroneous as contended by the applicant, I am not persuaded that his reasoning or conclusions were so flawed as to violate some fundamental principle of law or morality or justice. In my view, the challenged award does not constitute a palpable inequality that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award.”</p> <p>In <em>casu</em> the arbitrator’s finding that there was vis major, given the fact that the applicant herself had caused the third and fourth respondents to be summarily and forcibly evicted from the farming operations from which they were to live and grow tobacco, for purposes of ensuring repayments, which caused them to sign as sureties, cannot be said to offend the public policy of Zimbabwe. For these reasons the application will fail.</p> <p>IT IS ORDERED THAT</p> <ol> <li>The application is dismissed</li> <li>The applicant to pay costs on a legal practitioner and client scale.</li> </ol> <p><em>Atherstone &amp; Cook</em>, applicant’s legal practitioners</p> <p><em>Kantor &amp; Immerman</em>, 2nd respondent’s legal practitioners</p> <p><em>Venturas &amp; Samkange</em>, 3rd and 4th respondents’ legal practitioners       </p> <p>                     </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/605/2018-zwhhc-605.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23156">2018-zwhhc-605.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/605/2018-zwhhc-605.pdf" type="application/pdf; length=175476">2018-zwhhc-605.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/setting-aside-award">setting aside award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/setting-aside-award">setting aside award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/suretyship">SURETYSHIP</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/surety-%E2%80%93-liability">Surety – liability of</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/node/2044">Peruke Inv. (Pvt) Ltd v Willoughbys Inv. (Pvt) Ltd &amp; Another (Civil Appeal No. SC 208/14) [2015] ZWSC 11 (18 March 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1996/6">Arbitration Act [Chapter 7:15]</a></div></div></div> Thu, 01 Nov 2018 08:11:43 +0000 admin 9133 at https://old.zimlii.org Reserve Bank of Zimbabwe v Mufudzi & 3 Others (SC 29/18, Civil Appeal No. 524/14) [2018] ZWSC 29 (26 June 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/29 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (28)</strong></p> <p> </p> <p> </p> <p><strong>RESERVE     BANK     OF     ZIMBABWE</strong></p> <p><strong>v</strong></p> <ol> <li><strong>T. LLOYDMUFUDZI(2)RICHARDUSEYA(3)NYASHACHIKAZAZA(4)WARAIDZOTANDI</strong></li> </ol> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GOWORA JA, BHUNU JA &amp; ZIYAMBI AJA</strong></p> <p><strong>HARARE, JUNE 26 2017 </strong></p> <p> </p> <p> </p> <p> </p> <p><em>V. Mukwachari, </em>for the appellant</p> <p><em>T. Marume, </em>for the respondents</p> <p> </p> <p> </p> <p> </p> <p><strong>ZIYAMBI AJA:</strong></p> <p>[1]       This is an appeal against a judgment of the Labour Court dismissing an application for condonation of the late filing of an application for leave to appeal to the Supreme Court.</p> <p> </p> <p>[2]        It arises from the facts set out briefly hereunder. The appellant, in 2010, embarked on a retrenchment exercise which affected the respondents, among others. Following the usual negotiations with the works council, a retrenchment agreement was concluded between the appellants’ and the respondents’ representatives on 8 December 2010.  Thereafter pursuant to this agreement each respondent was requested to, and did, sign an ‘Acknowledgement Form’ containing the agreed terms of the retrenchment. With specific reference to motor vehicles and lap tops, the agreement provides:</p> <p>“Vehicle    +5years – Drive out</p> <p>                 -5years -  Calculated at book value</p> <p>             Laptop      Take out at book value”.</p> <p> </p> <p>Certain items like housing and clothing allowances were provided for in the following terms:</p> <p>“….Housing Allowance – in terms of Bank Policy.</p> <p>Clothing Allowance – in terms of Bank Policy.”</p> <p> </p> <p> </p> <p> [3]       The above notwithstanding, the appellant refused to avail the vehicles and laptops to the respondents reasoning that in terms of the respondents’ contracts of employment they were not entitled to the same. The dispute was referred to arbitration and the Arbitrator ruled in favour of the respondents.</p> <p> </p> <p>            The appellant’s appeal to the Labour Court was dismissed on 24 October 2012. The judgment is date stamped 30 November 2012. In terms of the Labour Act an appeal on a point of law only lay, with leave, to the Supreme Court. Any application for leave was to be made within 30 days of the date of the judgment. No application was filed within that period.</p> <p> </p> <p>[4]        On the 11 September 2013, the appellant filed an application for condonation of the late filing of an application for leave to appeal to the Supreme Court. The reason for the delay was said to be the failure of the office of the Registrar to notify the appellant or its legal practitioners of the delivery of the judgment. No explanation was given by the appellant as to how it eventually became aware of the judgment. The learned Judge found the delay to be inordinate and the explanation for the delay unreasonable. Regarding the prospects of success, the learned Judge after considering the contents of the retrenchment agreement as set out in the ACKNOWLEDGMENT FORM as read with the judgment sought to be appealed against concluded:</p> <p>“It is, in my view, unlikely that an appeal court will interfere with the findings and conclusions reached in this matter, based on the clear and unambiguous contents of the retrenchment agreement.”</p> <p> </p> <p> </p> <p> An application for leave to appeal against this judgment was dismissed by the Labour Court but subsequently granted by this Court.</p> <p> </p> <p><strong>THE APPEAL</strong></p> <p> </p> <p>[5] The first ground of appeal alleged an error at law by the court <em>a quo</em> in finding that the delay was inordinate and the explanation therefor unreasonable. The second alleged a misdirection at law by that court in ruling that the appellant had no prospects of success on appeal in the main matter.</p> <p> </p> <p>[6]        The appeal runs foul of two legal principles.  The first is s 92F(1) of the Labour Act which provides that an appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court. The second is that the indulgence of condonation is granted or denied at the discretion of the court of first instance and an appellate court will not, except in limited circumstances, interfere with the exercise by the lower court of that discretion.</p> <p> </p> <p>[7]        Regarding the first ground of appeal, merely using the words ‘erred in law’ does not create a point of law. It must clearly appear from the ground of appeal what point of law is sought to be determined. In that connection it has been held that a serious misdirection on the facts would amount to a question of law. A finding that the delay in making an application is inordinate and the explanation for the delay unreasonable, is a factual finding. Such a finding does not qualify as a point of law unless it is grossly unreasonable, that is, unless it is a finding that no reasonable court faced with the same facts would have made. No allegation of gross unreasonableness has been made nor is any apparent on the record. Accordingly, this ground of appeal, not being on a point of law, is invalid.</p> <p> </p> <p> </p> <p>[8]        As to the second ground of appeal, it is vague and embarrassing, to say the least.  The appellant has not indicated in this ground of appeal what point of law is to be determined on appeal. A finding that there are no prospects of success on appeal was made by the court<em> a quo.</em>  Simply to allege a ‘misdirection in law’ by the court without alleging the nature of the misdirection does not advise this Court of the point of law on which its decision is required. The second ground of appeal is also invalid in that it does not disclose a point of law. </p> <p> </p> <p> </p> <p>[9]        In any event, condonation is an indulgence granted at the discretion of the court of first instance and is not a right obtainable on request.  In an application for condonation, a court considers, among other things, the length of the delay, the reasonableness of the explanation for it, the prospects of success, and the need for finality in litigation.  Here, the delay was found to be inordinate, the explanation proffered for the delay unreasonable and the prospects of success non-existent.</p> <p> </p> <p> </p> <p>[10]      Where a discretion has been exercised and a decision arrived at by a court of first instance the principles enunciated in <em>Barros and Anor vs Chimphonda</em> are applicable.  They were stated by GUBBAY CJ as follows:</p> <p>“It is not enough that the Appellate Court considers that if it had been in the position of the primary court, it would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed, and the Appellate Court may exercise its own discretion in substitution…”</p> <p> </p> <p>[11]      The judgment of the court <em>a quo</em> is well reasoned. The learned Judge carefully assessed all the relevant factors.  Nothing was alleged, or proved, to justify interference by this Court with the judgment of the lower court.</p> <p> </p> <p> </p> <p>[12]      It is for the above reasons that, after hearing submissions by counsel, the appeal was dismissed with costs.</p> <p> </p> <p><strong>GOWORA JA:                                  </strong>I agree</p> <p><strong>BHUNU JA:                                      </strong>I agree</p> <p><em>T H Chitapi &amp; Associates, Appellant’s Legal Practitioners</em></p> <p><em>Matsikidze &amp; Mucheche, Respondent’s Legal Practitioners</em></p> <p> </p> <p>[Chapter 28:01]</p> <p>Labour Court Rules 2006, Rule 36</p> <p>Chapter 28:01</p> <p>See Barros &amp; Anor v Chimphonda 1999 (1) ZLR58 (S)</p> <p>Small Enterprises Development Corporaton v David Chemhere SC23/02;</p> <p>National Foods v Mugadza SC 105/1995; Hama v National Railways of Zimbabwe SC 96/1996</p> <p>Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR217 (SC); Vimbai Mbisva v Rainbow Tourism rop Limited T/A Ranbow Hotel &amp; Towers SC 32/09; Leopard Rock Hotel Company (Pvt) Ltd v Van Beek 2000 (1) ZLR 251 (S) at 256 B-C; Chinyange v Jaggers Wholesalers SC 24/03</p> <p>Supra at para [6]</p> <p>  At pp 62F-63A.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/29/2018-zwsc-29.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=37102">2018-zwsc-29.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/29/2018-zwsc-29.pdf" type="application/pdf; length=193058">2018-zwsc-29.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arbitrator">Arbitrator</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/retrenchment">Retrenchment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/salaries-and-wages">Salaries and wages</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Fri, 20 Jul 2018 10:58:40 +0000 admin 8988 at https://old.zimlii.org Khumalo & 2 Others v Ingwebu Breweries (HB 141-17, HC 1273-16) [2017] ZWBHC 141 (08 June 2017); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2017/141 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>    </p> <p>MANDLA KHANYE KHUMALO</p> <p>and</p> <p>SHAME MUTUNGURA</p> <p>and</p> <p>LIVER MDLONGWA</p> <p><strong>versus</strong></p> <p>INGWEBU BREWERIES</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MATHONSI J</p> <p>BULAWAYO 1 JUNE 2017 AND 8 JUNE 2017</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p>1st and 2nd applicants in person</p> <p><em>J J Moyo</em> for the respondent</p> <p> </p> <p> </p> <p>            <strong>MATHONSI J:          </strong>In terms of appearance the applicants are old, but for almost 13 years they have pursued the respondent, their former employer who unlawfully dismissed them in 2004.  They have been relentless in their pursuit for justice and they say since then they have never been employed.  Perhaps they are no longer employable and of course the current depressed economic situation may not have helped their cause.  But then the sooner they sought and obtained alternative employment or other means of livelihood the better.  They cannot expect to continue milking the same poor old cow.  Everything has an end.</p> <p>            The three applicants have, by joint effort, made an application using all the wrong means and filed all the wrong papers seeking in essence an order awarding them interest on certain amounts of money awarded to them by an arbitrator in a labour dispute pitting them against their former employer in respect of unlawful dismissal.  Except that the two arbitral awards, the first made by M Imbayago on 27 September 2010 and the second by S Willie both arbitrators did not award them interest on the amounts due to them.  After having been paid the full amounts due, the applicants have not had enough.  They have now come to this court asking the court to order that they be paid interest on what they have already been paid in terms of the arbitral awards.</p> <p>In his founding affidavit, the first applicant stated that he was employed by the respondent in 1989.  He was unfairly dismissed on 31 December 2004 leading to a labour dispute which was referred to an arbitrator Mason Imbayago.  The latter issued an arbitral award in his and the other two applicants’ favour on 27 September 2006, that they be reinstated without loss of benefits from the date of dismissal, that if reinstatement was no longer tenable the parties negotiate damages in lieu of reinstatement within 21 days and that if negotiations failed they return to him for quantification of those damages.  When reinstatement was not made and the parties did not agree on damages in lieu thereof they indeed returned to Imbayago.  On 27 September 2010 he issued another arbitral award again skirting around the issue.  He ruled that the applicants should be paid their back pay without any loss of pay and benefits from February 2009 to 3 September 2010 and that they should also be paid 12 months salaries as damages in lieu of reinstatement.  Imbayago did not quantify what was due to the applicants.  More importantly he did not award interest on both the back-pay and the damages in lieu of reinstatement.</p> <p>            The applicants did not contest that award but were happy to pocket it as it was. Unable to make use of an award which did not sound in money, the applicants sought to return to the arbitrator for quantification but by then Imbayago had “hung his boots” as they say in the sporting world.  Instead they appeared before another arbitrator S. Willie who, on 9 March 2015 quantified the award directing that the first applicant be paid $13 350-16, the second applicant $20 739-25 and the third applicant $8 186-45.  Significantly Willie did not award interest on those sums and again the applicants did not contest the exclusion of interest by way of appeal or otherwise.  They were happy to register the award for enforcement as it was.  They did not even invoke Article 34 (2) of the Model Law in the Arbitration Act.</p> <p>            In HC 1290/15, the applicants made an application for registration of the award by this court.  Although the order granted by KAMOCHA J on 25 June 2015 is couched as a provisional order, it is the order which registered the arbitral award.  What has caught my attention in that court order is clause 5 which reads:</p> <p>“That the above amounts should be paid in full to each applicant, not later than the end of May 2015, taking into account the period the award was amended.  Failure of which the amount shall accrue interest at the prescribed rate until final payment is done.”</p> <p> </p> <p>            What is the meaning of that clause?  The parties did not address me on that at all.  The first applicant who claimed to speak on behalf of all the applicants submitted that the order of KAMOCHA J did not award interest but only “hinted” on interest.  He busied himself with making submissions on the unfairness of paying what was due to them in instalments submitting that this court should, for that reason, award interest in retrospect on the sums already paid to them.</p> <p>            I have said that the order of KAMOCHA J is couched as a provisional order.  I say this because its preamble reads:</p> <p>            “IT IS ORDERED THAT:</p> <p>            Respondent show cause why the following order should not be made:-</p> <p>            ---.”</p> <p> </p> <p>            Worded as a show cause order, it does not however have a return date.  It also does not indicate when and how the respondent should show cause.  Whatever the case, it is that registration order which the applicants sought to enforce.  They were then paid the sums due to them in instalments.  After being paid they made this application seeking an order that they be paid interest at the rate of 5% per annum on the sums awarded to them by the arbitrator “from 27 September 2010 to the end of 2015, the date of final payment.”</p> <p>            If the order of KAMOCHA J is a final order, and I find it unnecessary to make such a pronouncement given that it was not placed in issue and the parties did not address me on it, then interest was provided for at the registration of the arbitral award.  The portion of the order that I have referred to above can only mean that if the respondent did not pay the sums due to the applicants by “the end of May 2015” then interest was to accrue on any outstanding amount at the prescribed rate from 31 May 2015 up to date of final payment.</p> <p>            It is trite that the rules of interpretation applicable to statutes apply to the interpretation of agreements and indeed any other legal literature like a court order in our case.  The basic rule of interpretation is that words must be given their grammatical and ordinary meaning unless that would lead to an absurdity, or some repugnance or inconsistency with the rest of the document.  In that case the grammatical or ordinary sense of the words may be modified so as to avoid the absurdity or inconsistency but no further.  See <em>Chegutu Municipality</em> v <em>Manyora</em> 1996 (1) ZLR 262 (S) 264 D –E; <em>Madoda</em> v <em>Tanganda Tea Company Ltd</em> 1999 (1) ZLR 374 (S); <em>S</em> v <em>Nottingham Estates (Pvt) Ltd</em> 1995 (1) ZLR 253(S).</p> <p>In this case an order of this court states that in the event that the respondent did not pay the applicants by end of May 2015 the amounts outstanding would accrue interest at the prescribed rate.  The prescribed rate of interest currently stands at 5% per annum.  Therefore interest has been provided by court order.  What the applicants are asking for has been provided already but they want interest to be awarded from 27 September 2010 when this court has already ruled on that aspect.  It is not within the jurisdiction of this court to tinker with a judgment of another judge enjoying the same jurisdiction.  I do not have jurisdiction to examine or review the order made in HC 1290/15 as it was made by a fellow judge of this court enjoying the same jurisdiction as myself.  See <em>Ncube</em> v <em>Nyathi and Others</em> HB 224-16.</p> <p>            To that extent, if the applicants would like interest, perhaps they should consider enforcing that order if at all it is enforceable given what I have already said about it.  The issue of interest may, in that regard be said to be <em>res judicata</em>.  The requisites of <em>res judicata</em> were succinctly set out in<em> Flowerdale Investments (Pvt) Ltd and Another</em> v <em>Bernard Construction (Pvt) Ltd and Others</em> 2009 (1) ZLR 110(S) 116E;</p> <p>            “The essential elements are—</p> <ul> <li>the two actions must be between the same parties;</li> <li>the two actions must concern the same subject matter.; and</li> <li>the two actions must be founded upon the same cause of action.”</li> </ul> <p>It occurs to me that those requirements are met in this case in relation to the order of KAMOCHA J.</p> <p>Lest I be accused of deciding an issue that is not before me, I have already qualified my comments in respect of that order by saying that I have no jurisdiction over it.  The question of whether upon registration of an arbitral award this court can add interest on the award which has no provision for it, cannot be determined by this court for want of jurisdiction.  However, it is the parties who placed that order before me and I am entitled to make the point that it rules on the same issue that the applicants pray for.  It is for that reason that I have related with the principle of <em>res judicata</em>.</p> <p>Although the founding affidavit of the applicants made no reference to a declaratory order, in their answering affidavit they suddenly make reference to such an order.  They attempted to argue that this court should issue a declaratory order that they are entitled to interest.  Unfortunately that cannot be.  It is trite that an application stands and indeed falls on the founding affidavit.  See <em>Mobil Oil Zimbabwe</em> v <em>Travel Forum (Pvt) Ltd</em> 1990 (1) ZLR 67 (H) at 70.  The applicants cannot import the aspect of a declaratory order in the answering affidavit when it was not the basis of the application as contained in the founding affidavit. </p> <p>In any event, I agree with Mr <em>Moyo </em>for the respondent that the application does not make out a case for a declaratory order.  The grant of a declaratory order is provided for in s14 of the High Court Act [Chapter 7:06] in terms of which this court may, at the instance of any interested party, inquire into and determine any existing, future or contingent right or obligation.  In interpreting that provision GUBBAY CJ stated in <em>Munn Publishing (Pvt) Ltd</em> v <em>ZBC</em> 1994 ZLR 337 (S) 343 G- 344 A-E:</p> <p>“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court.  See <em>United Watch and Diamond Co (Pvt) Ltd and Others </em>v <em>Disa Hotels and Another  </em>1972 (4) SA 409 (C) 415<em> infine; Milani and Another </em>v <em>South African Medical and Dental Council and Another </em>1990 (1) SA 899 (T) at 902 G-H.  The interest must relate to an existing, future or contigent right.  The court must not decide abstract, academic or hypothetical questions unrelated to such an interest. ---.  This, then, is the first stage in the determination by the court.  At the second stage of the inquiry, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under s14.”</p> <p> </p> <p>In my view the applicants do not have a right to interest because their rights against the respondent were determined by an arbitrator who excluded interest on what was due to them.  They did not contest that decision which determined what was due to them.  Even if one were to say that the order of KAMOCHA J bestowed the right to interest upon them, that would be cold comfort to the applicants.  All it means is that their rights in that regard have already been determined.  They cannot be a subject of further inquiry.  This is therefore not a case for the exercise of the court’s discretion under s14.</p> <p>What all this means is that the applicants must suffer grief.  I have said that perhaps it is time that they now seriously consider redirecting their energies on other income generating endeavours which are not expecting to ike out a living out of a company that parted ways with them more than 13 years ago.  That may indeed be worth their while.</p> <p>In the result, the application is hereby dismissed with costs.</p> <p> </p> <p> </p> <p><em>Calderwood, Bryce, Hendrie and Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>           </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2017/141/2017-zwbhc-141.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26094">2017-zwbhc-141.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2017/141/2017-zwbhc-141.pdf" type="application/pdf; length=126887">2017-zwbhc-141.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/enforcement">enforcement</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/declaratory-order">Declaratory order</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/order-practice-and-procedure">Order (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/declaratory-order">Declaratory order</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Thu, 12 Jul 2018 07:44:26 +0000 admin 8967 at https://old.zimlii.org Biltrans Services (Pvt) Limited v The Minister of Public Service, Labour & Social Welfare & 6 Others (CCZ 16/16, Constitutional Court Application No. CCZ4/16) [2016] ZWCC 16 (18 May 2016); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2016/16 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p><strong>BILTRANS     SERVICES (PVT)     LIMITED</strong></p> <p>v</p> <ol> <li> </li> <li> </li> <li> </li> <li> </li> <li> </li> <li> </li> <li> </li> </ol> <p> </p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>MALABA DCJ, </strong><strong>ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, </strong></p> <p><strong>GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, </strong></p> <p><strong>GUVAVA JCC &amp; UCHENA JCC</strong></p> <p><strong>HARARE, </strong>MAY 18, 2016</p> <p> </p> <p> </p> <p><em>T Mpofu</em>, for the applicant</p> <p><em>M Chimombe, </em>for the first respondent</p> <p><em>R Dembure</em>, for the second to sixth respondents</p> <p>No appearance for the seventh respondent</p> <p> </p> <p>                        <strong>MALABA DCJ</strong>:        At the end of hearing argument for both parties the court dismissed the application with no order as to costs. It was indicated at the time that reasons for the decision would follow in due course. These are they.</p> <p> </p> <p>The applicant approached the Court in terms of s 85(1) of the Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013 (“the Constitution”), which provides that any person who alleges that any of the fundamental rights enshrined in Chapter IV has been infringed, may approach a court seeking an appropriate relief which a court has discretion to grant. The applicant sought an order declaring invalid ss 92E (2) and 98(14) of the Labour Act [<em>Cap.  28:01</em>], (“the Act”) on the basis that the provisions infringe the fundamental right to equal protection of the law enshrined in s 56(1) of the Constitution.  The applicant also took as an additional point that s 98(14) of the Act infringes the right to fair labour practices enshrined in s 65(1) of the Constitution.</p> <p> </p> <p>The second to the sixth respondents were employees of the applicant until they were dismissed for misconduct.  They were aggrieved by the dismissal and raised a complaint of unfair labour practice with a labour officer, claiming overtime and several other allowances that they alleged the applicant owed them.  When conciliation failed to yield a settlement, the dispute was referred to compulsory arbitration.  The Arbitrator found in favour of the second to the sixth respondents.</p> <p> </p> <p>The applicant filed an appeal with the Labour Court, but failed to file heads of argument, leading to the second to the sixth respondents successfully applying to the Labour Court for dismissal of the appeal for want of prosecution.  The second to sixth respondents then applied to the Arbitrator for quantification of the award.  They were awarded USD$99 882-60.  They then applied to the High Court to have the arbitral award registered as an order of the High Court. The High Court granted the application for registration. </p> <p> </p> <p>The applicant noted an appeal to the Labour Court against the quantification. In the meantime the second to sixth respondents armed with a writ of execution proceeded to attach the applicant’s property.  The applicant immediately filed an application for stay of execution of the writ with the High Court.  The application was dismissed.   This application was then made.</p> <p>Mr<em> Mpofu</em> who appeared for the applicant argued strenuously that s 92E(2) of the Act is inconsistent with Section 56(1) of the Constitution, which provides that all persons are equal before the law and have the right to equal protection and benefit of the law. It was his argument that s 92E(2) of the Act, by providing that an appeal to the Labour Court against a determination or decision did not suspend the determination appealed against,  deprived the party appealing  of the right to equal protection of the law.  Mr <em>Mpofu</em> said it was particularly so since the winning party could then register and execute the award, before the appeal was heard by the Labour Court, thus rendering the appeal academic.  Worse still, if an arbitrator ordered reinstatement, an employer would be forced to work with an employee it had already dismissed, pending the appeal. </p> <p> </p> <p>More importantly, Mr <em>Mpofu</em> argued that s 92 E(2)  does not pass the test of rationality, when it is considered that decisions of superior courts, like the High Court, are suspended by the noting of an appeal, yet arbitrators’ decisions were not subject to the same limitation. According to Mr <em>Mpofu</em> the irrationality became more apparent when one took into account the fact that arbitrators, unlike   Labour Court or High Court Judges, are not required at law to possess any legal qualification, yet they seemed to have <em>carte blanche</em> to adjudicate legal matters and make decisions involving large sums of money and substantial labour entitlements.  </p> <p> </p> <p>In the applicant’s view, s 92E(2) of the Act, by providing that an arbitral award is not suspended by the noting of an appeal, prejudiced the party  appealing.  It infringes the right to equal protection of law enshrined in s 56(1) of the Constitution.</p> <p>Mr<em> Mpofu</em> further submitted that s 98(14) of the Act which provides that an arbitral award may be registered with the High Court or Magistrates Court for enforcement purposes is unconstitutional.  It was his submission that s 98(14), by not providing that upon registration of an award a judge of the High Court may examine the award on the merits, deprives a party against whom the award is made of the protection of the law as enshrined in  s 56(1) of the Constitution, since it reduces a High Court judge to play the role of a clerk who, as a matter of course, must routinely rubber stamp the arbitral awards.  In the same vein, it robbed the High Court of judicial authority vested in it by s 162 of the Constitution.  In the applicant’s view, s 198(14) not only violates ss 56(1) and 162 of the Constitution, it also amounts to an unfair labour standard contrary to s 65(1) of the Constitution.</p> <p>                                                            </p> <p>Mr<em> Chimombe</em> for the first respondent indicated that he would stand guided by the decision of the Court. Mr <em> Dembure</em>  <em>for</em> the second to the sixth respondents argued  that there was nothing unconstitutional about s 92E(2) of the  Act.  It was his submission that s 92E(2) should be read in conjunction with s 92E(3), which provides that the Labour Court may make an  interim determination pending the determination of the appeal.  Failure by a party to exploit the remedy of interim relief does not render s 92E(2) of the Act unconstitutional.</p> <p> </p> <p>With regards to s 98(14) of the Act, Mr <em>Dembur</em>e argued that the provision does not take away the High Court’s authority to decline in appropriate circumstances to register the award. It could not be argued that a High Court Judge is reduced to discharging a clerical function when considering an application for registration of a determination appealed against in terms of s 98(10) of the Act. In any event, he argued, the fact that a party can oppose registration of an award means that both parties are equally protected by the law and there can thus be no question of a violation of s 56(1) of the Constitution.</p> <p> </p> <p>The first question for determination is whether s 92 E(2) of the Act infringes or limits  the right to equal protection of the law enshrined in  s 56(1) of the Constitution. Secondly, whether s 98(14) of the Labour Court is also contrary to the right to equal protection of the law and perpetuates an unfair labour standard.</p> <p> </p> <p>It is the view of the Court that neither section of the Act whose constitutional validity of which is challenged is contrary to the provisions of the Constitution referred to by the applicant. </p> <p> </p> <p>Section 92(E) of the Act provides:</p> <p><strong>“92E Appeals to the Labour Court generally</strong></p> <p>(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.</p> <p>(2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.</p> <p>(3) Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires.”</p> <p> </p> <p> </p> <p>It is clear from submissions made on its behalf that the applicant has fallen into the mistake of reading the provisions of s 92E(2) in isolation from the rest of the section.  Such a piecemeal approach to the law offends against the settled rule of interpretation to the effect that legislative provisions must be read in their context, and construed with proper regard to the subject matter the instrument deals with and the object it seeks to achieve.  A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.  A court must not in expounding a statute be guided by a single sentence or member of a sentence.   It must look to the provisions of the whole law, and to its object and policy.  See <em>Hibbs v Winn</em> 542 US88 (2004) at 101.</p> <p> </p> <p>The provisions of s 92E are all lined up and deal with the same issue, which is an appeal to the Labour Court and its effects and remedies.  In essence, the provisions of the section all colour each other. It would be an error in legislative interpretation to treat s 92E(2) as though it existed in isolation, unaffected by the provisions surrounding it.While Section 92E(2) provides that an appeal against a determination shall not suspend the determination appealed against, equally important is s 92E (3) which empowers the Labour Court, pending the determination of the appeal, to make such interim measures as the justice of the case requires. </p> <p> </p> <p>The net effect is clear. The Legislature clearly sought to protect the interests of both parties. Section 92E (2) protects the winning party by ensuring that the losing party does not initiate frivolous appeals merely to delay complying with the award, which a losing party may be tempted to do if an appeal suspended the award.  Conversely, s 92E(3), provides a safety net for the losing party, by permitting such party, once it has noted an appeal to the Labour Court, to make an application for an interim measure pending the appeal. Such interim measures would take the form of an application for stay of execution or any other appropriate relief to ensure that the judgment appealed against is not executed before the Labour Court has determined the appeal.   In <em>S</em><em>tandard Chartered Bank of Zimbabwe Ltd </em>v <em>Muganhu </em>2005(1) ZLR 43(S) it is stated that:</p> <p>“The object of an interim determination made under s 97(4) of the Act is to give a party in whose favour the determination appealed against was made an interim right which he would otherwise not have because of the noting of the appeal. It may also be to grant the party against whom the judgment was made temporary relief from the burden of the obligation imposed by the determination which he would otherwise not have because of the appeal.<em>” </em>(emphasis added)</p> <p> </p> <p><strong>(</strong>Section 97(4)) was repealed by s 34 of Act 7 of 2005 but the provision on interim measures pending appeal was retained under s 92E(3) of the Act.</p> <p> </p> <p>The argument that s 92E (2) violates the right to equal protection of the law cannot stand, when the Act clearly provides remedies that protect the interests of both parties.  Section 92E(2) has the effect of protecting the rights of the party in whose favour the determination or decision was given whilst the party against whom the determination or decision was given exercises his or her right of appeal.  As a way of providing protection of the rights of the appellant in the event of a successful appeal, s 92E(3) gives such a party an opportunity to secure from the Labour Court an interim  determination suspending the execution of the decision appealed against.  The Labour Court is in a position to strike a balance between the competing interests of the parties.  Both parties have equal opportunity to present their case to the court.  Provision for an interim determination made by the Labour Court if the justice of the case requires is an important protective remedy for securing a determination by an independent party. </p> <p> </p> <p>The applicant had the right to appeal to the Labour Court and at the same time apply for stay of execution pending finalisation of the appeal. The facts show that the applicant chose not to exercise the right to apply for an interim determination. It merely noted an appeal to the Labour Court.  It sought to act to protect its rights when its property was attached in execution.  The applicant is before the Court not because there is no remedy provided by the law for the protection of its rights or that the remedy is an inadequate protection.  It is here because for reasons known to itself it failed to take advantage of the remedy designed or the protection of its rights.</p> <p> </p> <p>When a party fails to utilise a remedy provided by the law for the protection of its rights it cannot seek refuge from the underlying constitutional provision.  It must first show why the remedy provided for the protection of its rights by a statute is not an effective remedy.  Failure to invoke a remedy designed for the protection of a right does not give rise to a question of violation of the fundamental right to equal protection of the law.</p> <p> </p> <p> </p> <p>The submission that “unskilled arbitrators”, as Mr<em> Mpofu </em>described them, have <em>carte blanche </em>to issue awards which are not suspended by an appeal, is self-serving and cannot be sustained.  The Act has enough safeguards to ensure that erroneous decisions are not carried to execution. Not only can the Labour Court, upon application in terms of  s 92E (3), suspend a determination by the Arbitrator, his or her decision would be appealable to the Labour Court itself in terms of s 98(10) of the Act.  The matter may go up to the Supreme Court on appeal from the decision of the Labour Court in terms of s 92F(1) of the Act.</p> <p> </p> <p> </p> <p>The Court turns to consider the contention that s 98(14) of the Act is unconstitutional. Section 98(14) provides for the administrative process of registration of an arbitral award which would have been granted by the Arbitrator. It provides as follows:</p> <p>“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.”</p> <p> </p> <p>In registering an arbitral award the High Court and the Magistrates Court are not carrying out a mere clerical function.  While the registering Court may not go into the merits of the award, since its duty is to provide an enforcement mechanism and not to usurp the powers of the Labour Court, it must be satisfied before registering an award that all the necessary formalities have been complied with.  In <em>Vasco Olympio &amp; 4 Ors v Shomet Industrial Development</em> HH-191-12, CHIWESHE JP at p1 of the cyclostyled judgment, outlining the requirements for registering an arbitral award, stated:</p> <p>“The purpose of registration is merely to facilitate the enforcement of such an order through the mechanism availed to the High Court or the magistrate court, namely the office of the Deputy Sheriff or the messenger of court, respectively…  In an application such as the present one, this court is not required to look at the merits of the award. All that is required of this court is that it must satisfy itself that the award was granted by a competent arbitrator, that the award sounds in money, that the award is still extant and has not been set aside on review or appeal and that the litigants are the parties, the subject of the arbitral award. There must also be furnished, a certificate given under the hand of arbitrator.”</p> <p> </p> <p>The requirements that must be satisfied before the High Court or the Magistrates Court grants an application for registration of an award are:</p> <ul> <li>The award must have been granted by a competent arbitrator.</li> <li>The award must sound in money.</li> <li>The award is still extant and has not been set aside on review or appeal.</li> <li>The litigants are the parties to the award.</li> <li>The award must be certified as an award of the arbitrator.</li> </ul> <p> </p> <p>The process of registration of an arbitral award is closely connected to the remedy provided for under s 92E(3) of the Act.  It is the decision relating to the arbitral award which would be the subject of appeal to the Labour Court.  An application for registration of an arbitral award presupposes that there is no application made to or pending before the Labour Court for an interim order suspending the execution of the decision appealed against.  A party cannot submit for registration an arbitral award he or she knows or ought to know is subject to an interim determination suspending its execution pending appeal.  The High Court or Magistrates’ Court would be required to take into account the fact that there is at the time of entertaining the application for registration no application pending before the Labour Court for an interim determination suspending the execution of the decision appealed against. </p> <p> </p> <p>The High Court and the Magistrates Court would be exercising a judicial function in carrying out the inquiry before registering the award. The inquiry the Court has to undertake and the factors it has to consider are meant to define the content and scope of the right to equal protection of the law.  They guarantee the right to equal protection of the law through judicial process.</p> <p> </p> <p>As counsel for the second to the sixth respondents correctly submitted, registration is not a foregone conclusion and a party against whom the award is made can successfully oppose the registration of an arbitral award if it does not comply with the requirements for registration.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>The right to oppose the application means that the parties are equal before the law. The situation would be different if the losing party was prohibited by the law from opposing registration of the arbitral award.  Failure by a party in its opposition does not render the process unconstitutional.</p> <p> </p> <p>The application is devoid of merit and was therefore dismissed.</p> <p> </p> <p><strong>ZIYAMBI JCC:             </strong>I agree</p> <p> </p> <p> </p> <p><strong>GWAUNZA JCC:         </strong>I agree</p> <p> </p> <p> </p> <p><strong>GARWE JCC:               </strong>I agree</p> <p> </p> <p> </p> <p><strong>GOWORA JCC:            </strong>I agree</p> <p> </p> <p> </p> <p><strong>HLATSHWAYO JCC: </strong>I agree</p> <p> </p> <p> </p> <p><strong>PATEL JCC:                 </strong>I agree</p> <p> </p> <p> </p> <p><strong> GUVAVA JCC:              </strong>I agree</p> <p> </p> <p> </p> <p><strong>UCHENA JCC:             </strong>I agree</p> <p> </p> <p>                       </p> <p><strong><em>Messrs Coghlan Welsh and Guest</em></strong><em>, </em>applicant’s legal practitioners</p> <p><strong><em>Civil Division of the Attorney General’s Office,</em></strong> 1st respondent’s legal practitioners</p> <p><strong><em>Messrs Mabulala and Dembure</em></strong><em>, </em>2nd to 6th respondent’s legal practitioners </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2016/16/2016-zwcc-16.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=43138">2016-zwcc-16.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2016/16/2016-zwcc-16.pdf" type="application/pdf; length=283611">2016-zwcc-16.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/enforcement">enforcement</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/setting-aside-award">setting aside award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/setting-aside-award">setting aside award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-employment">Appeal (EMPLOYMENT)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Thu, 12 Jul 2018 07:21:06 +0000 admin 8966 at https://old.zimlii.org Ziyambi v Laryscope Healthcare (Pvt) Ltd (HH295-18, HC 4467/16) [2018] ZWHHC 295 (06 June 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/295 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>GODFREY ZIYAMBI</p> <p>versus</p> <p>LARYSCOPE HEALTHCARE (PVT) LTD</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 14 May 2018 &amp; 6 June 2018</p> <p> </p> <p> </p> <p><strong>Opposed Matter</strong></p> <p> </p> <p> </p> <p><em>O. D Mawadze</em>, for the applicant</p> <p><em>Matsanhura,</em> for the respondent</p> <p> </p> <p> </p> <p>            MUZOFA J:  This chamber application is made in terms of r 236 (4) (b) of the High Court Rules, 1971 for registration of an arbitral award.</p> <p>            The application is opposed on two fronts. Firstly that r 236 (4) (b) does not envisage an application such as the one before the court. Secondly that the initial award giving rise to the quantified award was rescinded therefore there is nothing to register.</p> <p>            I agree with Mr <em>Matsanhura</em> for the respondent, r 236 provides</p> <p>            “236 set down of applications.</p> <p>            (4) where the applicant has filed an answering affidavit in response to the respondent’s opposing</p> <p>                 affidavit but has not, within a month thereafter, set the matter down for hearing, the       </p> <p>                 respondent, on notice to the applicant, may either–</p> <p>            (b) make a chamber application to dismiss the matter for want of prosecution, and the judge may</p> <p>                 order the matter to be dismissed with costs or make such order on such terms as he thinks fit.”</p> <p> </p> <p>            The rule deals with a situation where an applicant fails to set the matter down within thirty days of filing an answering affidavit. The respondent is empowered to take charge of the litigation with a view to finalise the matter by either setting the matter down or applying for discharge for want of prosecution. See <em>The Permanent Secretary &amp; Anor</em> v <em>College Lecturers</em> <em>Association of Zimbabwe and 18 Others</em> HH 628/15.</p> <p>            Clearly the purported application for registration in terms of r 236 (4) (b) is a blatant error. Registration of an arbitral ward by an arbitrator can only be done by the court in terms of s 98 (14) of the Labour Act “the Act.”</p> <p>            The application does not relate to the rule that applicant approaches the court under. Applicant did not fail to set down the matter, he actually set the matter down.</p> <p>            The respondent having raised the procedural irregularity, the applicant did not address the issue either in an answering affidavit or in the heads of argument. It is trite that where an allegation is not specifically controverted it is taken to have been admitted see <em>Fawcett Security Operations</em> <em>(Pvt) Ltd</em>  v <em>Director of Customs &amp; Excise and Others</em> 1993 (2) ZLR 121 SC where the court said:</p> <p>“The simple rule of law is that what is not denied in affidavits must be taken to be admitted. Therefore Customs have in effect conceded that they were asked by Fawcett whether all was well and they advised that it was. It does not seem to me that Fawcett could reasonably be expected to do more.”</p> <p> </p> <p>In <em>casu </em>the procedural irregularity is fatal and respondent did not seek to do anything</p> <p>about it. The application does not represent what it says to be.</p> <p>On that basis alone the application cannot succeed.</p> <p>There is no purpose to address the merits of the application, when the application is improperly before the court.</p> <p>            Accordingly the following order is made.</p> <ol> <li>The application for registration of an arbitral award dated 20 April 2016 by Honourable E Maganyani be and is hereby dismissed with costs.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Messrs Mawadze &amp; Mujaya</em>, applicant’s legal practitioners</p> <p><em>Madzivanzira &amp; Associates</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/295/2018-zwhhc-295.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=17511">2018-zwhhc-295.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/295/2018-zwhhc-295.pdf" type="application/pdf; length=110309">2018-zwhhc-295.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/chamber-application">chamber application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-application">dismissal of application</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Fri, 15 Jun 2018 07:25:29 +0000 admin 8906 at https://old.zimlii.org T.M. Supermarkets (Private) Limited v Nkomo & 2 Others (SC 26/18, Civil Appeal No. SC 164/16) [2018] ZWSC 26 (08 May 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/26 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (19)</strong></p> <p> </p> <p><strong>T. M.     SUPERMARKETS     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <ol> <li><strong>ITAYI NKOMO(2) THEMBINKOSI NYATHI (3)NICHOLAS KHUMBULATSHILI</strong></li> </ol> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GOWORA JA &amp; BERE AJA </strong></p> <p><strong>BULAWAYO: NOVEMBER 28, 2016 &amp; MAY 8, 2018</strong></p> <p><em>T. Mpofu,</em> for the appellant                                                                                                 </p> <p>Respondents in person</p> <p><strong>                        GOWORA JA</strong>:  This is an appeal against the whole judgment of the Labour Court which dismissed an appeal against an Arbitral award issued in the respondents’ favour.</p> <p>                        The salient facts in this matter are the following<strong>. </strong>In 1995 the appellant employed the respondents as shelf packers and they rose through the ranks. At the commencement of the dispute they were employed as Section managers at TM Supermarket, Lobengula Street, Bulawayo under the M2 grade in terms of the appellant’s grading system. Their remuneration was paid in accordance with their contracts of employment and in conformity with the relevant Collective Bargaining Agreement.</p> <p>                        In 2009 the appellant offered increments to all its section managers in the fifty branches it operated nationwide based on monthly sales performance of the respective branches. In order to give effect to this the appellant grouped the branches into four categories. The branch which recorded the highest sales would earn its managers a 20 percent bonus, the second highest 15 percent, the third 10 percent with the lowest earning 5 percent. Based on this formula the Lobengula branch received a bonus of 15 percent during the period in question. </p> <p>     On 22 November 2011, the respondents addressed a letter to the appellant’s Managing Director in which they alleged that they had discovered that since January 2010, some section Managers were being paid a monthly salary that was higher than what the respondents were earning. They also stated that they had previously written to the Human Resources Officer-Southern Region and the Human Resources Manager concerning their grievance but they had not received a response.</p> <p>There was no response from the Managing Director and in January 2012 the respondents lodged a complaint of unfair labour practice with a Labour Officer. They claimed the difference between their salaries and what the highest performers were being paid. The parties were invited to attend conciliation proceedings which failed to achieve a positive result and consequently a certificate of no settlement was issued. Thereafter, the matter was referred to compulsory arbitration for the arbitrator to determine whether the respondents were entitled to back-pay and the <em>quantum</em> thereof.</p> <p>Before the arbitrator, the respondents contended that in November 2011, most Section Managers under the M2 grade were earning salaries ranging from US$400.00 - US$450.00 per month whilst they were earning US$360.00 per month. They argued before the arbitrator that there was no rational basis for the distinction. They also suggested that in November 2011 following their complaint, each of their accounts was inexplicably credited with the sum of US$40.00. It was also the respondents’ contention that in February 2012 they were demoted to grade 10 without consultation. In the result, the respondents claimed back-pay in the sum of US$2 390.00 each and prayed that the appellant be ordered to stop acting unilaterally in violation of the labour laws.</p> <p>                        Per contra, the appellant averred that initially the<br /> Section Managers were paid equitably and the decision to pay them based on branch performance was reached sometime in December 2010. The appellant also submitted that the respondents were in grade C2 in terms of the “Patterson” grading system and that, as they were managerial employees, their salaries were negotiated on an individual basis. Contrary to the respondents’ contention, the appellant claimed that the US$40.00 deposited in the respondents’ accounts were given to every employee of the appellant. It submitted that there was no back-pay due to the respondents because it was gravitating towards the normal payment system where employees are paid the same regardless of performance.</p> <p>The arbitrator found that, in the circumstances in <em>casu</em>, the performance-based bonus constituted a contravention of the <em>audi alteram partem</em> principle as the respondents had not been afforded an opportunity to be heard concerning the new grading salary scales. He therefore held that the appellant was committing an unfair labour practice in terms of s 6 of the Labour Act in that the respondents were being underpaid for the period in question. In addition he held that the appellant’s conduct in this regard was criminal which rendered it liable for prosecution.</p> <p>As a consequence, he ordered that each of the respondents be paid US$2 390.00 as back-pay. He also ordered that the appellant should normalise the compensation system for the respondents.</p> <p>                        The appellant was aggrieved and appealed against the Arbitral award to the Labour Court. In essence, the grounds of appeal were that the arbitrator erred in finding that the appellant committed an unfair labour practice by implementing a performance-based incentive bonus scheme. It also argued that the Arbitrator exceeded his terms of reference when he ordered it to normalise its payment scheme.</p> <p>                        The Labour Court upheld the finding by the arbitrator that the appellant had committed an unfair labour practice by implementing a performance-based bonus scheme. On the issue relating to the Arbitrator exceeding his terms of reference, the court <em>a quo</em> found that it was inconceivable that the appellant would raise such a ground of appeal when it was common cause that it had, subsequent to the arbitration proceedings, started a process towards normalising its remuneration system. In the result, the appeal was dismissed in its entirety.</p> <p>                        Aggrieved by the decision, the appellant, with the leave of this Court, has appealed on the following grounds:</p> <ol> <li>The court <em>a quo</em> erred in law in effectively coming to the conclusion that it was unlawful for appellant to pay its employees performance-based salaries.</li> <li>Having come to the conclusion that what the respondents were being paid was in accordance with their contracts of employment, the court <em>a quo</em> erred in law in holding as valid an award which entitled them to be paid on a salary scale that was not contractual and which related to different employees.</li> <li>The court <em>a quo</em> erred in failing to make a determination on whether the arbitrator was entitled to stray from the terms of reference in the manner that he did and whether he was at large to afford relief which had not been motivated.</li> </ol> <p>                        From the grounds of appeal, there are essentially two issues for determination and these are:</p> <ol> <li>Whether the court <em>a quo</em> erred in holding that it was unlawful for the appellant to pay its employees performance-based bonuses.</li> <li>Whether the court <em>a quo</em> erred by failing to make a determination on whether the arbitrator strayed from his terms of reference.</li> </ol> <p><strong>Whether the court <em>a quo</em> erred in holding that it was unlawful for the appellant to pay its employees performance-based bonuses</strong></p> <p>                        The appellant contends that the court <em>a quo</em> erred in holding that it was unlawful for it to implement a performance-based bonus scheme because there was nothing unlawful about the measures it adopted in putting in place such a scheme as long as the emoluments which the employees are paid as a minimum comport with what is set out in the relevant Collective Bargaining Agreement. The respondents, per contra, contend that putting in place a performance-based salary system is unfair as it contravenes s 5 (d) of the Labour Act [<em>Chapter 28:01</em>], (the “Act”) which prohibits discrimination on matters relating to employment, wages and benefits.</p> <p>                        A bonus is what can generally be termed a benefit. The implication that can be drawn is that the grant of a bonus <em>per se</em> is not illegal and an employer cannot generally be held to have committed an unfair labour practice by setting up a bonus scheme. The rationale to this principle is that every employee has the right to a performance based incentive and if they work well, they will be paid well without any reference being made to their class, race, tribe or any other factor on the basis upon which discrimination can competently be committed. Thus, the grant of a performance based bonus is therefore not proscribed by law.</p> <p>It is only where the awarding of the bonus constitutes an unfair labour practice that would render the bonus illegal. It should be noted however, that a court will interfere with a decision which involves the exercise of discretion in very limited circumstances.  These were set out by this Court in <em>Barros &amp; Anor v</em> <em>Chimphonda </em>1999 (1) ZLR 58 (S) at p 62-63, where the Court said:</p> <p>“The attack upon the determination of the learned judge that there were no special circumstances for preferring the second purchaser above the first – one which clearly involved the exercise of a judicial discretion – may only be interfered with on limited grounds. See <em>Farmers’ Co-operative Society</em> <em>(Reg.) v Berry</em> 1912 AD 343 at 350. These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court”.</p> <p>                        It is trite that the grant of a benefit is at the discretion of the employer and cannot be interfered with unless the employer has, in granting the benefit exercised his discretion capriciously or on a wrong principle. This position was buttressed in <em>First Mutual Life Ltd v Muzivi</em> SC 09-07 where CHEDA JA stated:</p> <p>“Payment of an annual bonus, is generally discretionary on the part of the employer.  It could not be said that the employee would have been awarded a bonus under all circumstances.  A bonus would have depended on a clear record of performance.  Having been suspended, it could not be said that the employee performed so well that he would have been entitled to a bonus.”</p> <p>                        The above <em>dictum</em> amplifies the principle that the decision to grant or award a bonus to its employee is entirely within the employer’s discretion and is dependent on the employee’s performance.</p> <p>What can be gleaned from the above is that the Arbitrator as well as the court <em>a quo</em> could only interfere with the appellant’s decision to implement a performance-based bonus scheme if it was found that an error had been made or if the employer, in implementing the scheme, had acted on the wrong principle or if the employer allowed extraneous or irrelevant factors to guide or affect it or if it did not take into account some relevant consideration.</p> <p>                        Regarding the performance-based bonus system, the Labour Court held as follows;</p> <p>“I agree with the arbitrator that failure to appraise employees of putting such a system in place and go on and base the salaries on the system is unfair and unjust and not in keeping with the Labour Act. Section 5 of the Labour Act prohibits discrimination on any other matter related to employment and in any matter relating to wages and benefits. The employer has an obligation to advise the employee in writing of the remuneration and how it shall be arrived at.”</p> <p>                        It is evident from the remarks above that the court <em>a quo</em> upheld the Arbitrator’s decision that declared the bonus illegal on the premise that the respondents were not informed about the scheme prior to it being implemented. It is my view that the finding by the court <em>a quo</em> cannot be assailed because employees have a right to be informed about decisions pertaining to their employment conditions of service even if the decisions are made in the exercise of an employer’s discretion. The appellant as the employer had a duty to notify all employees about its decision to start a performance-based bonus scheme before implementing it.</p> <p>                        However, that said, the court <em>a quo</em> erred in upholding the order awarding the respondents back-pay. As correctly argued by the appellant, once the court <em>a quo</em> found that the performance-based bonus scheme was illegal, it should not have upheld an order awarding back-pay based on an illegal scheme.  A finding that an arrangement is turpious is incompatible with an order enforcing the same as was done in <em>casu</em> by requiring that the employees be paid in terms of an allegedly unlawful arrangement. This is what is referred to as the <em>ex turpi</em> causa principle. The order of the arbitrator and that of the court <em>a quo</em> upholding the former, contravenes this principle, and as a consequence, the principle is offended by an order enforcing what has been held to be illegal. In addition a court cannot lend itself to an illegality. See <em>Dube v Khumalo</em> 1986(2) ZLR 103; <em>Foroma v Min of Public Construction &amp; Anor</em> 1997(1) ZLR 447(H).</p> <p>                        The court <em>a quo</em> failed to appreciate the point that an Arbitral award cannot be founded on an illegality. An illegal act is void and cannot be enforced. As LORD DENNING stated in <em>MacFoy v United Africa Co Ltd</em> [1961] 3 All ER 1169 (PC) at 1172I:</p> <p>“If an act is void, then it is in law a nullity.   It is not only bad, but incurably bad.   There is no need for an order of the court to set it aside.   It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so.   And every proceeding which is founded on it is also bad and incurably bad.   You cannot put something on nothing and expect it to stay there.   It will collapse.”</p> <p>                        The above dictum is apposite. In <em>casu</em>, once the Labour Court found that the performance based scheme was illegal, which bonus scheme the Arbitrator had declared illegal, it was incumbent upon it as an appeal court to set aside the arbitral award upon which the back-pay was awarded. The court however, notwithstanding its finding of illegality, went ahead to uphold the award. In this respect, the court <em>a quo</em> erred.</p> <p> </p> <p>In an appeal this Court will not simply deal with the direct dictates of an order but also its effects. In <em>Williams &amp; Anor v Msipa N.O. &amp; Ors</em> SC 22/10, the court said:</p> <p>“The court must be able to intervene not only against the direct dictates of the judgment of the lower court but also against its effects. See <em>Macdonald v Canada (AG)</em> (1994) I SCR 311@329”.</p> <p> </p> <p> </p> <p>The effects of the judgment of the court <em>a quo</em> is to sanction an illegality. The judgment does not serve the law. Rather it enforces what it has itself found to be void. There is a patent contradiction. Accordingly its decision should be set aside on that basis.</p> <p> </p> <p><strong>Whether the court <em>a quo</em> erred by failing to make a determination on whether the arbitrator strayed from his terms of reference.</strong></p> <p>                        The appellant submits that the court <em>a quo</em> erred in failing to make a determination on the issue whether the Arbitrator went outside his terms of reference. This issue was raised as a ground of appeal in the court <em>a quo</em> and the court stated the following regarding the same:</p> <p>“It is inconceivable that the Appellant argues that the arbitrator erred in delving into the issue of normalising the compensation system when it was not asked to do so, yet the employer tried to normalise the system before going to arbitration by paying unexplained $40.00 to each employee that would put the respondents’ salary at $400.00 from $360.00.”</p> <p> </p> <p> </p> <p> </p> <p>The only issue on the terms of reference to the arbitrator was whether or not the respondents were entitled to back-pay. A perusal of the ruling by the arbitrator shows that he indicated that the appellant was gravitating towards “a normal payment system. Thereafter the arbitrator ordered the appellant to normalise its remuneration system. This was not part of his terms of reference.</p> <p>           </p> <p>                        A reading of the remarks by the learned Judge shows that she failed to appreciate the issue that was before her. The court <em>a quo</em> presumed that the appellant was aggrieved by the fact that it was ordered to normalise the system. In making that presumption, it failed to appreciate that the grievance was that the arbitrator did not have the power to make such an order as the issue had not been placed before the arbitrator for determination.      </p> <p>           </p> <p>The court <em>a quo</em> fell into the same error as the arbitrator. Instead of determining the ground of appeal raised on the arbitrator’s alleged departure from his terms of reference, the court <em>a quo</em> found that the order granted by the arbitrator was already being implemented. It commented that the employer was already gravitating towards a normal payment system. It in effect refused to deal with the issue placed before it.</p> <p> </p> <p>The gravamen of the complaint by the appellant was that the arbitrator had given an award on a matter that was not placed before him. He had departed from his terms of reference and the order that he gave was in breach of the law. It had no basis in law. It behoved the court <em>a quo</em> to consider that ground and properly find that the order was unlawful and as a consequence set it aside. In consequence, the court <em>a quo</em> did not determine the issue that was before it. This was a serious misdirection that warrants interference by this Court. The failure by a court to appreciate the issues before it is a just cause for setting aside its order.</p> <p> </p> <p>It follows that the judgment of the court should be set aside in its entirety.</p> <p> </p> <p> </p> <p>                        In the result, the following order will issue:</p> <ol> <li>The appeal is allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is set aside and in its place is substituted:</li> </ol> <ul> <li>“The appeal be and is hereby allowed with costs.</li> <li>The arbitral award by the learned arbitrator I Bonda dated 23 October 2012 be and is hereby set aside.”</li> </ul> <p><strong>GARWE JA:</strong>                   I agree</p> <p><strong>BERE AJA:               </strong>I agree</p> <p><em>Coghlan &amp; Welsh</em>, appellant’s legal practitioners</p> <p><em>ZFTU</em>, for the respondents</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/26/2018-zwsc-26.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=44284">2018-zwsc-26.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/setting-aside-award">setting aside award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/setting-aside-award">setting aside award</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Wed, 13 Jun 2018 07:52:32 +0000 admin 8898 at https://old.zimlii.org Chirasha v National Foods Limited (SC 20/18, Civil Appeal No. SC 153/16) [2018] ZWSC 20 (13 March 2018); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/20 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p><strong>  REPORTABLE                  (73)</strong></p> <p> </p> <p> </p> <p><strong>VENGESAI     CHIRASHA</strong></p> <p><strong>v</strong></p> <p><strong>NATIONAL     FOODS     LIMITED</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GOWORA JA &amp; HLATSHWAYO JA</strong></p> <p><strong>BULAWAYO 26 JULY, 2016 &amp; MARCH 13, 2018</strong></p> <p>           </p> <p> </p> <p>Appellant, in person</p> <p>A. K. Maguchu, for the Respondent</p> <p> </p> <p> </p> <p>                        <strong>HLATSHWAYO, JA:</strong>          This is an appeal against the whole judgment of the Labour Court sitting at Bulawayo handed down on 19 September 2011 in case number LC/MT/28/10.  Leave to appeal and condonation of late noting of appeal as well as extension of time within which to note an appeal were granted by this Court on 26 February 2016.</p> <p> </p> <p>There were two matters for determination before the Labour Court: proceedings for the setting aside of an arbitral award (the first matter) and an appeal against the employer’s decision to terminate the employment of the employee (the second matter). The Labour Court dismissed both matters and the appellant, a self-actor, has appealed against both decisions, on the following grounds:</p> <ol> <li>The court <em>a quo</em> erred grossly at law in its finding that what was placed before it was an application for review as opposed to an appeal;</li> <li>The court <em>a quo</em> erred grossly at law by not finding that the award was contrary to public policy for the arbitrator sought to demand receipts - an issue which did not emanate from the parties nor was it a requirement of the policy he held was binding between the parties.</li> <li>The court <em>a quo</em> erred grossly at law by not finding that by singling out appellant for disciplinary action and leaving the co-accused persons the respondent acted <em>ultra vires</em> article 23 (2) of the Declaration of Rights Charter.</li> <li>The court <em>a quo</em> grossly erred at law by not finding that the appellant was wrongly convicted.</li> <li>The court <em>a quo</em> grossly erred at law by re-establishing the charges which had been quashed by the respondent’s appeals committee.</li> <li>The court <em>a quo</em> grossly erred at law by not observing the provisions of s 12B (4) of the Labour Act as required by the law of unfair dismissal.</li> </ol> <p> </p> <p> </p> <p>The appellant then sought as relief the setting aside of the arbitrator’s award and its substitution with the granting of his claim for $3 840 and his own re-instatement in employment or payment of damages <em>in lieu</em> thereof.</p> <p> </p> <p><strong><em>BACKGROUND FACTS</em></strong></p> <p>The common facts are that the appellant and the respondent were employer and employee since 2005. The appellant was employed as a stock control clerk.  In September 2004, the respondent had entered into a Works Council agreement with its employees regarding transfer expenses.  In 2009 the appellant was transferred to Victoria Falls at one of the respondent’s commercial depots.  Appellant then raised a complaint that his transfer expenses were not met.  The appellant later took up the matter to the human resources department and was paid US$359-00 in April 2010.  The appellant submitted that no breakdown of the money had been given.  He felt short-changed as he believed that he was not paid in accordance with the 2004 Works Council agreement.  The appellant then raised a complaint with a Labour Officer. Conciliation process failed and the dispute was referred to compulsory arbitration.  The arbitrator heard the matter and dismissed it for the following reasons:</p> <p>1.    There was no explanation as to what the claim for transport was based on.</p> <p>2.    There was nothing in the form of receipts for the claim of hotel accommodation amounting to $384-00.</p> <p>3.    The claim by the appellant for relocation allowance in the sum of $94-50 was valid but the appellant had already been paid $359-00, an amount well above $94-50, thus the claim had already been taken care of.</p> <p> </p> <p> </p> <p>Aggrieved by the arbitrator’s decision, the appellant instituted proceedings to have the arbitral award set aside by the Labour Court.</p> <p> </p> <p> </p> <p><strong><em>Review Or Appeal?</em></strong></p> <p>The issue before the Labour Court was whether the court was seized with an application for review or an appeal.  The Labour Court concluded that the application before it was a review and not an appeal and that it had no jurisdiction to review the arbitrator’s decision.  The appellant has not challenged the court <em>a quo’s</em> view that it had no jurisdiction to review the arbitrator’s decision.  Rather, the appellant has suggested, with scant authority, that a court called upon to review a matter has the discretion to treat the review as an appeal.  On the record it is clear that what was brought before the court was a review application.</p> <p>However, what complicates this matter is that the appellant, a self-actor and layman, claims that he had intended to bring an appeal to the Labour Court but was misled into filing a wrong application by an officer of the Labour Court, an assistant registrar called Mr Muna - who was allegedly acting in connivance with the respondent.</p> <p> </p> <p>In the court <em>a quo</em>, the appellant expressed his bafflement thus:</p> <p>“I was advised by Mr Muna that I should lodge a review, for if you lodge an appeal, it may spend two years before the matter is heard in court.  As a lay person, I requested Mr Muna to help me, to assist me for the matter to be heard quickly.  He said money is requested in the amount of US$50-00.  As a person who wanted to be assisted I sought for money.  I managed to get US$40-00 and he received it and he prepared the papers….  So where I am right now I am a confused person, that I am given advice by members of this court, which then leads to the matter being of no use in the same court.”</p> <p> </p> <p> </p> <p>Commendably, upon hearing of this the judge <em>a quo</em> immediately called the police to investigate. They apprehended Mr Muna and incarcerated him pending trial. The court <em>a quo</em> reflected and concluded as follows on the matter:</p> <p>“Appellant then said that his intention was to appeal against the arbitrator’s decision, but when he came to the labour offices, he was advised by the court’s Mr Muna to make an application for a review. He took up the advice and ended up paying $40-00.  He had his application for review prepared by Mr Muna. Looking agitated, he said that he could not appreciate how he could be penalized when he got the advice from the court. Unfortunately, this was wrong advice.</p> <p> </p> <p>As a result of this complaint against Mr Muna, investigations had to be instituted by the Registrar concerning the alleged advice. However, the appellant never made a request to the court to have Mr Muna called as a witness.</p> <p> </p> <p>What is in the record is a well prepared application for review. Applicant approached this court with that application. It was served on the respondent. This is what the court had before it, and was called upon to review.</p> <p> </p> <p>Mr <em>Maguchu</em> having submitted that this court had no jurisdiction in terms of the law to entertain a review against the decision of the arbitrator, Applicant was not heard to dispute this nor was he heard to say he was making an application for an appeal against the decision of the arbitrator. He was neither heard to say he was making an application for his review application to be altered to that of an appeal after he had raised a complaint against Mr Muna. In the end result, I find that I must deal with a review against the decision of the arbitrator.  Having addressed myself on the law….  I find that this court has no jurisdiction to entertain the application for a review against the decision of the arbitrator. The application is dismissed.”</p> <p> </p> <p> </p> <p>The attitude displayed by the court <em>a quo</em> above, in my view, betrays a failure to act fairly and assist an unrepresented litigant. Once the court had initiated the process which led to the investigation of Mr Muna’s conduct, the matter was now squarely in the court’s hands so that it could not abdicate its responsibility and merely leave it up to the appellant to call Mr Muna as a witness. Worse still, the same court could not further hold it against the appellant for failure to have the witness called.  The court was seized with the fact that Mr Muna’s alleged irregular advice was the subject of the registrar’s investigation, yet it appears to have shown no interest in the outcome of that inquiry.</p> <p> </p> <p> </p> <p>However, the matter does not end there. It gets worse. The appellant makes even more serious allegations that the respondent’s group human resources director and others were busy issuing food hampers to labour officers, arbitrators and registrars of labour courts, including Mr Muna, on or about the time that he was allegedly misled into filing a review instead of an appeal.</p> <p> </p> <p>In his answering affidavit in the application for leave to appeal to this Court the appellant states:</p> <p>“18. Firstly, applicant approached the Labour Court with appeal papers against the arbitrator’s award, the papers were manipulated by the assistant registrar. Respondent used and still uses that manipulation as its chief argument. It later emerged that the same respondent, through the office of the deponent, was issuing hampers to the same assistant registrar and other administrative authorities.”<br />            </p> <p> </p> <p>And in his heads of argument, the appellant focused on this issue in the following manner:</p> <p>“<em>In casu</em>, the Respondent patronized and colluded with Court officers to mount controversy on Appellant’s papers which in turn Respondent sought and still seeks to rely upon in having the matter thrown away on a legal technicality. I refer to page 54 and 55 of the appeal record SC38/14, wherein the Respondent’s Group Human Resources Director and others were discussing and subsequently issuing food hampers to Labour Officers, Arbitrators and Registrars of the Labour Court to induce an obvious outcome.”</p> <p> </p> <p> </p> <p> </p> <p>The appellant then attached copies of e-mail messages exchanged between employees of the respondent, as follows:</p> <p>A.        From:   Innocent Magaya</p> <p>                        Date:    20 September 2011 08:15</p> <p>                        Lloyd chinanhamabwe</p> <p>                        Tabeth Melusi</p> <p>                        Subject:            RE: HAMPERS</p> <p>---- got three hampers for the labour office, so who are the recipients?</p> <p>B.         From:   Lloyd Chidanhamabwe</p> <p>                        Date:    Tuesday, September 20, 2011 8:08</p> <p>                        Innocent Magaya</p> <p>                        Tabeth Melusi</p> <p>                        Subject:            HAMPERS</p> <p>Further to our discussion on Labour Court Registrars Hampers last week.  Its just a reminder on the issue.  <strong>Their names are Muna and Mutadzo</strong>.(emphasis added)</p> <p>C.         From:   Tabeth Melusi</p> <p>                        Date:    Tuesday, September 20, 2011 9:04Am</p> <p>Augustine Sekayi; Lloyd Chidanhamabwe; Ngoni Gamba, Innocent Magaya, Takudzwanashe Munyanga</p> <p>                        Subject:            Bulawayo Hampers</p> <p>                        Augustine,</p> <p>May you please process the two hampers as per e-mail below for Innocent.  The hampers are worth $45 each.  Taku---payment of $135 including another hamper for Arbitrator- (named) here in Harare will be delivered to your place today.  Lloyd please go ahead and organize 2 hampers as per instruction.</p> <p>Please note that you need to prepare 5 hampers including 4 from the previous week.</p> <p>                        Regards.</p> <p> </p> <p> </p> <p>And each of these food hampers was by no means a trifling parcel but consisted of significant grocery items as follows:5 x 2kg Flour, 6 x 400g Peanut Butter, 6 x 500g mixed jam, 3 x 2 litres Mazoe Orange Crush and 1 x 5kg Roller Meal.</p> <p> </p> <p> </p> <p>The appellant pointed out that his appeal at the Labour Court was heard on 19 September 2011 and judgment was reserved.  The flurry of e-mails quoted above occurred the very next morning 20 September following the hearing, raising suspicion in his mind that the “gifts” were intended to influence the outcome of his appeal.  He was unsure, however, as to when the giving out of the hampers had commenced or how widespread the practice was.  There was no evidence or allegation that the presiding judge <em>a quo</em> or the arbitrator concerned had received any of these hampers. It appears that this alleged interference affected only that aspect of his appeal pertaining to the challenge of the arbitral award.</p> <p> </p> <p> </p> <p>Mr <em>Maguchu</em>, for the respondent, did not deny that the respondent had distributed food hampers as alleged, but simply submitted that the practice had long since ceased and should have no relevance to the current proceedings.</p> <p> </p> <p> </p> <p>                        However, in my view, the above allegations, though untested, are of a very serious nature. The approach by the courts in circumstances of alleged financial bias is that the existence of the slightest financial interest in a matter by an adjudicator would nullify the proceedings. The learned author Lawrence Baxter in his seminal work, <em>Administrative Law</em>, Juta &amp; Co Ltd, 1984 explains this apparently stricter test for bias where pecuniary interest is involved as follows:</p> <p>“Where pecuniary interest is alleged it is usually said that, if shown to exist, the “smallest” or “slightest” pecuniary interest will be sufficient to vitiate the decision.  This has led many commentators to argue that the test for bias in cases of pecuniary interest, as opposed to other cases of bias, is stricter than usual. There seems to be no need to adopt such a distinction: it is perfectly consistent to interpret the cases as stipulating that the slightest pecuniary interest will give rise to an apprehension by the reasonable man of a real likelihood of bias”.  </p> <p> </p> <p> </p> <p> </p> <p> I can find no reason why this principle cannot apply to the current case provided all the allegations are properly proved. Had such proof been available, and the administrator shown to have had an indirect financial interest in the outcome of the matter, having been promised or received the food hamper for the purpose of subverting appellant’s case, any reasonable person, under such proven circumstances, would perceive a real likelihood of bias on his part in the carrying out of his responsibilities. However, such critical proof and linkage between the administrator’s actions and the respondent’s conduct remained too elusive on the record for this court to make a definitive determination.</p> <p> </p> <p>Furthermore, the matter was not helped by the appellant’s own inconsistent submissions. For example, in his heads of argument appellant, in one paragraph, maintains that what was placed before the court below was an appeal and the court grossly erred in treating it as a review, but in the very next paragraph claims that his papers were manipulated to turn his intended appeal into a review.</p> <p> </p> <p>Be that as it may, the allegations and circumstances of this case are of such a serious nature that they cannot simply be glossed over. For any party to seek to influence Labour Court officials in such a blatantly vile manner to decide matters in its favour or misdirect litigants for its benefit as was allegedly done here is abhorrent in the extreme.  It strikes at, suffocates and fouls the very source and wellspring of justice. Accordingly, one is left with no choice but to refer this matter to the appropriate authority, the Judicial Service Commission, to investigate and make the necessary decisions.</p> <p><strong><em>Whether The Labour Court As At 19 September 2011 Had The Jurisdiction To Review The Decision Of An Arbitrator</em></strong></p> <p>Before NARE J, in the Labour Court, was an application for the review of an arbitrator’s decision. The respondent’s legal practitioner stated that the Labour Court had no jurisdiction to review the decision of an arbitrator which point the Labour Court agreed with basing itself on two judgments of this Court: <em>Minerals Marketing Corp of Zimbabwe v Mazvimavi</em> 1995 (2) ZLR 353 (S) and <em>Zimbabwe Electricity Supply Authority v Maposa </em>1999 (2) ZLR 452 (S), which two judgments have since been rendered otiose consequent upon the amendment of the Labour Act in 2005.</p> <p> </p> <p>Now, s 89 of the Labour Act prescribes the functions, powers and jurisdiction of the Labour Court. In particular, s 89(1) in its relevant portions provides that:</p> <p>“(1) The Labour Court shall exercise the following functions—</p> <p>(<em>a</em>) hearing and determining applications and appeals in terms of this Act or any other enactment;</p> <p>                        (<em>b</em>) ……………………………………………;</p> <p>                        (<em>c</em>) ……………………………………………;</p> <p>                        (<em>d</em>) ……………………………………………;</p> <p>(<em>d</em>1) exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.</p> <p>[Paragraph inserted by section 29 of Act 7 of 2005]” (my emphasis)</p> <p> </p> <p>GARWE JA in the <em>Zimasco</em> <em>(Pvt) Ltd</em> v <em>Marikano</em> 2014 (1) ZLR 1 (S) at 6F-7D explained the import of s 89(1) (d)(1) of the Labour Act as inserted by Act No. 7 of 2005 as follows:</p> <p>“The above provisions are, in my view, clear and unambiguous. In respect of labour matters, the Labour Court shall exercise the same powers of review as does the High Court in other matters. The jurisdiction to exercise these powers of review is in addition, and not subject, to the power the court has to hear and determine applications in terms of the Act. … The suggestion … that the Labour Court has been given the same power of review as would be exercisable by the High Court in respect of labour matters is, in my considered view, incorrect and inconsistent with the provisions of the Act. I say this for two reasons. Firstly, the Act is clear that no court, other than the Labour Court, shall have jurisdiction in the first instance, to hear and determine any application, appeal or matter referred to in s 89(1) of the Act – see s 89(6) of the Act. … Secondly, it is clear that the interpretation given relies on a superficial reading of the wording of s 89(1)(d) [<em>sic</em>]. The section should be understood to mean ‘the same powers of review in respect of labour matters as would be exercisable by the High Court’ or alternatively ‘the same powers of review, as would be exercisable by the High Court, in respect of labour matters’. Any other reading of the paragraph would clearly result in an absurdity.”</p> <p> </p> <p>The above interpretation by the court in <em>Zimasco (Pvt) Ltd </em>was recently applied by Patel JA in <em>Lungu &amp; Ors v Reserve Bank of Zimbabwe </em>SC 1/17. In the <em>Lungu </em>matter, the appellants challenged the Labour Court’s jurisdiction to review the decision of an arbitrator. The appellants’ argument is succinctly captured at pages 4 to 5 of the cyclostyled judgment a follows:</p> <p>“In his heads of argument and at the hearing of the appeal, Adv. <em>Mpofu</em>, for the appellants, embarked upon an excursus outside the stated grounds of appeal into the review jurisdiction of the Labour Court. He submits that s 89(1) (d1) of the Labour Act [<em>Chapter 28:01</em>] limits that court to the same review powers as are exercisable by the High Court. Therefore, since the review of arbitral awards cannot be instituted in terms of the High Court Act [<em>Chapter 7:06</em>] but only under the Model Law scheduled to the Arbitration Act [<em>Chapter 7:15</em>], it follows that the Labour Court, being a creature of statute and having no inherent jurisdiction, cannot review the decisions of arbitrators. Adv. <em>Mpofu</em> relies for this proposition upon the decisions in <em>Catering Employers Association of Zimbabwe</em> v <em>Zimbabwe Hotel and Catering Workers Union &amp; Another</em> 2001 (2) ZLR 388 (S) and <em>National Social Security Authority</em> v <em>Chairman, National Social Security Authority Workers Committee &amp; Others</em> 2002 (1) ZLR 306 (H).</p> <p>In the <em>Catering Employers Association</em> case, it was held that Article 34(2) of the Model Law sets out the sole grounds on which the High Court may set aside an arbitral award. The court cannot therefore rely on the grounds set out in s 27 of the High Court Act to set aside an arbitral award on review. This position was adopted in the <em>National Social Security Authority</em> case on the somewhat questionable basis that the general power to review proceedings conferred by s 26 of the High Court Act does not extend to arbitral awards because an arbitrator does not fall into any of the stipulated categories, <em>i.e.</em> inferior courts of justice, tribunals or administrative authorities. In any event, it was reaffirmed that the narrow grounds on which an arbitral award may be set aside are set out in Article 34 of the Model Law, and recourse to the courts against an award may only be made by way of an application under that article. The legislature had in enacting the Model Law, so it was held, deprived the High Court of its inherent jurisdiction to review the conduct of an arbitrator.”</p> <p> </p> <p>Patel JA in the <em>Lungu </em>matter dismissed the appellants’ argument where at pages 6 to 7 of the cyclostyled judgment he preferred the interpretation in the <em>Zimasco </em>judgment by stating:</p> <p>“I fully endorse the above reasoning. The only possible meaning and effect to be ascribed to s 89(1) (d1) of the Labour Act is that the Labour Court has the same power to review any inferior proceedings in labour matters on the same grounds of review as may be invoked by the High Court in the exercise of its powers of review in relation to other matters not embraced by the Labour Act. The interpretation propounded by Adv. <em>Mpofu</em> is not only specious in that it divests the Labour Court of the full breadth of its oversight in labour matters but also absurd in that any procedural or other irregularity committed by an arbitrator would be rendered wholly unreviewable, whether by the Labour Court or the High Court. That surely could not have been the intention of Parliament in the enactment of s 89 of the Labour Act.”</p> <p> </p> <p>It is critical to note that the Labour Court’s jurisdiction to review the decision of an arbitrator in terms of s 89(1)(dl) of the Labour Act became effective as from 2005.  At the time that the matter came before the Labour Court in 2011 and the judgment was made which then became the subject of this appeal, the Labour Court had the power as prescribed by the law to review an arbitrator’s decision. This power was clearly explained by this Court in the <em>Zimasco </em>and the <em>Lungu </em>judgments as referred to above.  Therefore, the court <em>a quo</em> misdirected itself in declining jurisdiction in the mistaken view that it could not review an arbitrator’s decision when in point of law it had the powers to do so.  The matter should be remitted back to the Labour Court to exercise the powers of review that it is clearly imbued with.</p> <p> </p> <p><strong><em>Appeal Against Dismissal</em></strong></p> <p>As regards the second matter, the court below found as follows:</p> <p>“Applicant was initially represented by a(Trade)Union, which withdrew at the last minute, having realized that it had not submitted the grounds of appeal in time. Despite advice by the Union, that the case must not go on because no grounds of appeal had been filed when the appeal was noted, Appellant decided to go on on his own.  He, therefore, approached the court without any proper grounds of appeal.</p> <p> </p> <p>Mr <em>Maguchu</em> argued that the appeal could not be entertained by the court because the grounds of appeal were filed six months after the notice of appeal was made. This was contrary to the law and therefore the appeal was a nullity. The appellant was supposed to withdraw those grounds of appeal and then proceed to make an application for condonation. I agree…</p> <p> </p> <p>The rules were not followed in this case, so the appeal on its own is a nullity. It ought to be dismissed.”</p> <p> </p> <p> </p> <p> </p> <p>                        The above finding that the appeal before the court <em>a quo</em> was a nullity has not been challenged in this appeal. As long as the finding remains extant, appellant cannot challenge the merits of an appeal which was held to be a nullity. By not appealing against that finding, he has accepted the appeal to be a nullity.  See <em>First Banking Corporation Ltd v Marimo</em> SC 57/05 and <em>Dlodlo and Ors v Road Motor Services(Pvt) Ltd</em> SC 59/06.</p> <p> </p> <p>           </p> <p>Since it is improper for this Court to determine the merits of what is admittedly a nullity, the grounds of appeal pertaining to the appellant’s dismissal are irregular and ought to be dismissed.</p> <p> </p> <p> </p> <p><strong><em>Disposition</em></strong></p> <p>The appeal succeeds in part. The purported appeal by the appellant against his dismissal from employment ought to be dismissed. Costs on the ordinary scale would naturally follow upon such an outcome. However, the challenge of the dismissal of the proceedings pertaining to the arbitrator’s award must succeed with costs.</p> <p> </p> <p> </p> <p>Accordingly, it is ordered as follows:</p> <ol> <li>The appeal succeeds in part.</li> <li>The appeal against his dismissal from employment is dismissed with the appellant bearing the costs thereof on the ordinary scale.</li> <li>The appeal pertaining to the arbitrator’s award is allowed with costs on the ordinary scale to be borne by the respondent.</li> <li>The matter relating to the challenge of the arbitrator’s award is remitted to the Labour Court for consideration on the merits before a different judge.</li> <li>This judgment and the record are referred to the Judicial Service Commission for it to investigate and take appropriate action on matters raised herein.</li> </ol> <p> </p> <p><strong>GARWE JA:                         </strong>I agree</p> <p> </p> <p><strong>GOWORA JA:                      </strong>I agree</p> <p><em>Dube, Manikai &amp; Hwacha</em>, respondent’s legal practitioners.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/20/2018-zwsc-20.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=43942">2018-zwsc-20.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2018/20/2018-zwsc-20.pdf" type="application/pdf; length=358892">2018-zwsc-20.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/setting-aside-award">setting aside award</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/node/7958">Lungu &amp; Others v RBZ (SC 1/17 , Civil Appeal No. SC 94/16) [2017] ZWSC 01 (26 January 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1996/6">Arbitration Act [Chapter 7:15]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Fri, 18 May 2018 12:14:58 +0000 admin 8831 at https://old.zimlii.org Chigora & 2 Others v Freda Rebecca Gold Mine Holdings t/a Freda Rebecca Mine (HH 148-18, HC 4729/17) [2018] ZWHHC 148 (21 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/148 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHAMUNORWA CHIGORA</p> <p>and</p> <p>ZVINAMAKONO CHENGETA</p> <p>and</p> <p>ALICE MANDAZA</p> <p>versus</p> <p>FREDA REBECCA GOLD MINE HOLDINGS</p> <p>t/a FREDA REBECCA MINE</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSHORE J</p> <p>HARARE, 21 March 2018</p> <p><strong>Opposed motion – Registration of an arbitration award</strong></p> <p><em>A.K Maguchu</em>, for the applicants</p> <p><em>Z. Chandambuka,</em> for the respondent</p> <p>MUSHORE J: On 9 October 2017, I granted applicants an order registering an arbitral award in terms of s 98 (14) of the Labour Act [<em>Chapter 28:01</em>]. The arbitral award had been granted in their favour by the Honourable Arbitrator B. Matongera on 15 January 2016. My reasons for granting the order follow.</p> <p>            The applicants were part of a group of 57 applicants who were owed outstanding salaries and benefits from the respondent. The whole case started because of a labour dispute which had arisen between the applicants and others and the respondent. The applicants were successful in obtaining a first award in their favour, which was initially for the period of March 2010 to January 2011. The applicants then filed a further claim for payment of their back pay for the period from February 2011 to September 2013. The claim was also granted in their favour. What then remained was for the award to be quantified. The claim was submitted to Hon Matongera for quantification resulting in Matongera awarding them awards which when combined amount to US$ 23,806-89. The combined total amount of the award for all 57 applicants were US$ 625 729-50.  The present proceedings are for the applicants award in the amount of US$23 806-09 to be registered.</p> <p> </p> <p>The respondent's position on the merits of this application. </p> <p>            The respondent opposed the registration of the award for many reasons. The respondent submitted that the award is against public policy and in violation of the Arbitration Act [<em>Chapter 7:15</em>] and that therefore its registration would legitimize an illegality. The respondents submitted that Article 23 (1) read together with Article 32 (2) (b) of the Arbitration Act provides that once the arbitrator and the parties agree to the period of time within which a claim should be filed, then the arbitral tribunal will terminate the proceedings if the claimant does not communicate his statement of claim within that agreed time. The respondent submitted that in such circumstances, the arbitrator would have no discretion. The respondent understood Article 25 provided that termination of the proceedings would be automatic.  </p> <p>The respondent submitted that if the court agreed with it that the proceedings before the Arbitrator were tainted with illegality that it would be against public policy for this court to condone the arbitrator’s actions by proceeding to register the awards.</p> <p>Further respondent submitted that a registration of the entire award for all 57 employees which amounts to US$ 625 729-00 would lead the respondent into liquidation and that consequently employees who were still employed by the respondent would be rendered jobless. </p> <p>Finally respondent suggested that the awards could not be registered because that there was a pending appeal in the Labour court against the award made on the 15th January 2016 be set aside.</p> <p>Applicants points as to the merits.</p> <p>The applicant submitted that they were part of the first group out of the 57 awardees which had filed its claim in time.  </p> <p>The applicants stated that even if they had not filed their claim in time (which their counsel emphasised was not the case), any such delay would not have been against public policy because the claimants had shown sufficient cause for the arbitrator proceeding to quantify their award, as is borne out by the fact that the arbitrator proceeded to determine the claim. The applicants stated that the respondent never argued that there was insufficient cause for the quantification exercise to proceed.</p> <p>The above analysis reflects the submissions made by the parties on the merits of the matter.</p> <p>Points taken <em>in limine</em>.</p> <p>At the hearing, the respondent raised preliminary points.</p> <p><em>Firstly</em> that the High Court lacked the jurisdiction to determine the matter because s 98 (14) of the Labour Act provides that an arbitration award may be registered with a Magistrates’ Court and that combined with a reading of SI 163/2012 which provides the Magistrates Court with a limited jurisdiction to determine claims of up to US$10 000-00, the registration of first and third respondents awards which are each below the US$10 000-00 mark fall to be determined by the Magistrates Court.</p> <p><em>Secondly</em> that because the award was made against Freda Rebecca Gold Mine, which entity was different to the entity being sued in the present proceedings, (Freda Rebecca Gold Mine Holdings), then the present and latter respondent is not obligated at law to pay or to refuse to pay the award. As a result, suggested respondent, applicants could not seek to register the award against the respondent.</p> <p><em>Thirdly,</em> that the respondent who is described on the award as FREDA GOLD MINE was not a proper party to the quantification proceedings because FREDA GOLD MINE is a place and not a legal entity; and that therefore it could not be subject to legal proceedings.</p> <p><em>Fourthly </em>by reason that the initial arbitrator, one Dangarembizi not completing his task, it was improper for another arbitrator (MANHIRE) to have proceeded with adjudication of the arbitration process. Therefore respondent submitted that the award sought to be registered in the current matter is void.</p> <p>I will deal with the preliminary points. Firstly respondent submitted that the High Court cannot entertain the current application for want of jurisdiction, and that it is the Magistrates’ Court which has the jurisdiction to register the awards which are less than $10,000-00 (1st and 3rd applicant’s awards). The point taken is absurdly without merit. It is trite that the High Court “<em>enjoys original civil jurisdiction over all persons and over all matters in Zimbabwe”.</em> It is an obviously competent court for registration of arbitration awards irrespective of the amount of the award <em>per</em> s 13 of the High Court Act [<em>Chapter 7:06</em>]. The point fails.</p> <p>The second point taken regarding the citation of the respondent cannot succeed. In The respondent would like to have the court to accept that applicant’s citation of the respondent as “FREDA REBECCA GOLD MINE HOLDINGS”, in circumstances where the award was made against FREDA REBECCA GOLD MINE”,  meant that applicants were not entitled to registration of the award. The suggestion made by the respondent is that the presence of the word “HOLDINGS’ in the current citation meant that there were now two distinct entities; one with the word HOLDINGS and the other without. As a result, suggested respondent’ registering the award with the current citation was fatal to the application for registration. The point taken is preposterous. Surely respondent cannot in all sincerity hold this out to be a point with is worthy of the court’s circumspection and agreement.  In <em>Nuvert Trading (Private) Limited t/a Triple Tee Footwear </em>v<em> Hwange Colliery</em> HH 791/15, Mathonsi J was faced with a similar issue. In that case the plaintiff sought an amendment of the defendant as cited because it had omitted the word “Limited”. Respondent opposed the amendment sought on the basis that “Hwange Colliery Company” did not exist and that plaintiff had sued a non-existent entity. Mathonsi J determined that nothing turned on the mis-description and the omission of the word “Limited”. Hwange was recognizable. I am going to borrow heavily from the learned Judge citation of the dicta of Wessels J in <em>Van Vuuren </em>v <em>Braun and Summers</em> 1910 TPD 950, in order to demonstrate how meaningless respondent’s point is. On p 955 Wessels J stated:</p> <p>“Now in order to bring a defendant legally into court a summons is required. In order that the summons may be valid it must comply with the requirements of r 6. It must purport to be a mere summons, a mere request or a letter to the effect that the defendant is kindly requested to appear in court on a certain day is an invalid citation. Next the summons must specify the defendant. It is true that it will not be described as accurately as he should be. If a man is baptised “George Smith” it is no effect at all to call him “John Smith” because the individual is pointed out with sufficient accuracy. But if there were no mention of the defendant at all in the summons would be a wholly worthless document and could not be amended by inverting the defendant’s name in court.”</p> <p>Cheda J applied Wessels J’s reasoning in the case of <em>Masuku </em>v <em>Delta Beverages</em> HB 172/12 and stated:</p> <p>“<em>In casu</em> the entity whom applicant has sued is said to be non-existent. The argument is grounded on the fact that the citation omitted the full description of the respondent. The crucial question that [irresistibly] begs the answer is to what extent does the omission affect the identification of the respondent? Respondent is a well-known blue-chip company whose fleet of cars are all over our national and domestic roads and its commercial advertisements need no introduction. In other words Delta Beverages is known here and beyond. To me, applicant may have technically erred in her description, but has described respondent with sufficient clarity to an extent of eliminating any mistake, either legal or factual of respondent’s identity. Applicant sufficiently described respondent”.</p> <p>In the present matter I find that the respondent is splitting hairs. Applicants are very aware of the identification of their previous employer and so too is the court. The point which has been taken here by the respondent is made more absurd because this is a labour matter wherein the applicants are suing their employer. The addition of the word “HOLDINGS” does not transform the respondent into a non-existent entity, neither does the addition render the award which was made void <em>ab initio</em> as has been suggested by the respondent. Furthermore, the citation or misdescription emanated from the respondent throughout the arbitration process. It was not created by the applicants. Importantly, none of these objections raised here <em>in limine</em>, were taken throughout the arbitration process and taking into account the futility of the points made, I apprehend that the respondent is trying to postpone the finality of the matter. In the result I find the points taken by the respondent wholly lacking in merit.</p> <p>Merits</p> <p>On the merits themselves, respondent’s submitted that the award cannot be registered because it is against public policy due to the fact that the arbitrator should have made ‘one composite award’ and not issued the awards in instalments of two.  The criticism levelled against the arbitrator by the respondent is that because the arbitrator made partial awards, the arbitrator thus failed to ‘complete the hearing of the matter’; thus rendering the proceedings a nullity. There is no rationale at law which supports such a proposition. In my view, even if it were within the scope of the registering court to examine such an issue, (which scope is denied) the test for arriving at a conclusion that such proceedings are a nullity is whether it can be said that the conclusion reached by the arbitrator was so far removed from the issues or facts being led that it defies logic and is irrational, that it cannot be countenanced as being a judicious decision. In the present matter, the respondent is complaining about MATONGERA’s work. MATONGERA presided over the quantification of the award which involved him engaging in simple mathematics on the arbitral award which had been issued by arbitrator KABASA. Accordingly there is no basis in raising any argument relating to an irrational conclusion. After KABASA made the award, the respondent participated in the quantification exercise without objecting to the awards already made.</p> <p>It should have been obvious to the respondent that the public policy argument it has raised would have only pertained the proceedings relevant to the statement of claim, itself and not the quantification of such a claim. According to <em>Black’s legal Dictionary</em> 2nd Edition a claim means “facts which give rise to a legally enforceable right or action” and quantification gives right to an award.  Articles 23, 25 and 32 referred to by the respondent are only relevant with respect to the timing of the applicants’ statement of claim only. ARTICLE 23 reads:</p> <p><strong>“</strong><strong>ARTICLE 23</strong></p> <p><strong>Statement of claim and defence</strong></p> <p>(1)        Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements. The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.</p> <p>( 2 )      Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it”</p> <p>Articles 25 and 32 also do not apply in the present matter because those articles govern the proceedings surrounding the statement of claim itself, and not the quantification thereof.</p> <p><strong>“</strong><strong>ARTICLE 25</strong></p> <p><strong>Default of a party</strong></p> <p>Unless otherwise agreed by the parties, if, without showing sufficient cause—</p> <p>(a)        the claimant fails to communicate his statement of claim in accordance with article 23 (1), the arbitral tribunal shall terminate the proceedings;</p> <p>(b)        the respondent fails to communicate his statement of defence in accordance with article 23 (1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations;</p> <p>(c)        any party fails to appear at a hearing or to produce documentary evidence; the arbitral tribunal may continue the proceedings and make the award on the evidence before it;</p> <p>(d)        the claimant fails to prosecute his claim, the arbitral tribunal may make an award dismissing the claim or give directions, with or without conditions, for the speedy determination of the claim”</p> <p><strong>“</strong><strong>ARTICLE 32</strong></p> <p><strong>Termination of proceedings</strong></p> <p>(1) The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph (2) of this article.</p> <p>(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when—</p> <p>(a) the claimant withdraws his claim, unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute;</p> <p>(b) the parties agree on the termination of the proceedings;</p> <p>(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.</p> <p>(3) The mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to the provisions of articles 33 and 34 (4) “</p> <p>Thus Articles 23, 25 and 32 are irrelevant insofar as the present proceedings are concerned.</p> <p>There were 57 claimants in total. It would be unrealistic to imagine that all 57 claimants would have provided the arbitrator with a co-ordinated response. It is equally important to understand that it is against the rules of natural justice to penalise some of the claimants who may have met the time deadline, and deprive them of an award just because there were other claimants who were not as organised. The primary procedural safeguards of administrative law find their expression in the twin principles of natural justice:  <em>audi alterem partem</em> (“<em>the audi principle</em>”) and <em>nemo iudex in causa sua</em> that is, that a public official should hear the other side and that one should not be a judge in his own cause. <em>Laubscher </em>v <em>Native Commissioner, Piet Retief</em> 1958 (1) SA 546 (A). A failure to observe these rules would be unconstitutional.</p> <p>In any event, in terms of s 4 of the Arbitration Act the defence of public policy applies only in circumstances where a party to the arbitration proceedings objects to the arbitration taking place <em>ab initio</em>. Respondent never raised an objection on the basis of public policy, before the commencement of the arbitration proceedings in preventing the awarding of a claim which may have been contrary to public policy. The present registration proceedings discount the need for the court to look at the merits of the award. Section 4 reads:</p> <p><strong>“</strong><strong>4 What may be arbitrated?</strong></p> <p>(1) Subject to this section, any dispute which the parties have agreed to submit to arbitration may be determined by arbitration.</p> <p>(2) The following matters shall not be capable of determination by arbitration—</p> <p>(a) an agreement that is contrary to public policy; or</p> <p>(b) a dispute which, in terms of any law, may not be determined by arbitration; or</p> <p>(c) a criminal case; or</p> <p>(d) a matrimonial cause or a matter relating to status, unless the High Court gives leave for it to be determined by arbitration; or……………….”</p> <p>There is no substance in the respondent’s attempts at resisting the inevitable and lawful registration of the awards.  </p> <p>Finally, in applications for the registration of an arbitration awards, the court does not enquire into the merits of the application. See <em>Elvis Ndhlovu </em>v<em> Higher Learning Centre</em> HB 86/10; <em>Jeremiah Jaja </em>v<em> National Employment Council for the Engineering, Iron and Steel industry</em> HH 100/16.</p> <p>            Accordingly, I find no merit in respondent’s opposition to the registration.</p> <p>In the result, and having heard the parties, I ordered as follows:</p> <ol> <li>The arbitral award dated 15th January 2016 issued by the Honourable Arbitrator Matongera in favour of the applicants be and is hereby registered as an order of this court in terms of s 98 (14) of the Labour Act [Chapter 28:01]</li> </ol> <p> </p> <ol> <li>In terms of the said award, the respondent is hereby ordered to pay the applicants the following amounts: <ol> <li>Chamunorwa Chigora US $7,368-90</li> <li>Zvinamakona ChengetaUS$ 10,283-13</li> <li>Alice MandazaUS$6,154-06</li> </ol> </li> <li>The respondent shall pay the applicants’ costs of suit.</li> </ol> <p><em>Dube Manikai &amp; Hwacha, </em>applicants’ legal practitioners</p> <p><em>Gill Godlonton &amp; Gerrans</em> respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/148/2018-zwhhc-148.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30153">2018-zwhhc-148.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/148/2018-zwhhc-148.pdf" type="application/pdf; length=241626">2018-zwhhc-148.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rules">rules of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arbitrator">Arbitrator</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/enforcement">enforcement</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/jurisdiction-court">Jurisdiction (COURT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/jurisdiction-high-court-labour-matters">jurisdiction of the High Court in labour matters</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/high-court">HIGH COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/jurisdiction-high-court">Jurisdiction (HIGH COURT)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2010/86">Ndlovu v Higher Learning Centre (Case No. HC 583/09) [2010] ZWBHC 86 (18 August 2010);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2016/100">Jaja v NEC, Engineering, Iron &amp; Steel Industry (HH 100-16 HC 4393/15) [2016] ZWHHC 100 (27 January 2016);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/791">Nuvert Trading (Pvt) Ltd.v Hwange Colliery Co. (HC 370/13) [2015] ZWHHC 791 (14 October 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1996/6">Arbitration Act [Chapter 7:15]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Fri, 27 Apr 2018 07:47:52 +0000 admin 8767 at https://old.zimlii.org Unitrack (Private) Limited v Telone (Private) Limited (SC 10/18, Criminal Appeal SC 185/14) [2018] ZWSC 10 (01 September 2014); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2014/10-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE</strong><strong>   (9)</strong></p> <p><strong>UNITRACK     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>TELONE     (PRIVATE)     LIMITED</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>ZIYAMBI JA, HLATSHWAYO JA &amp; MAVANGIRA AJA</strong></p> <p><strong>HARARE, SEPTEMBER 1, 2014 </strong></p> <p><em>T. Mpofu, </em>for the appellant</p> <p><em>L. Matapura,</em> for the respondent</p> <p><strong>MAVANGIRA AJA:     </strong>After hearing the parties on 1 September 2014 this Court pronounced:</p> <p>“It is the unanimous view of this Court that the appeal has merit and ought to succeed.</p> <p>Accordingly, it is ordered as follows:</p> <ol> <li>The appeal is allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is set aside and substituted with the following:</li> </ol> <p>‘The application is dismissed with costs.’</p> <p>Reasons for this judgment will follow in due course.”</p> <p>The following are the reasons.</p> <p><strong>BACKGROUND</strong></p> <p>The appellant obtained an arbitral award dated 31 December 2008 requiring that the respondent pay it an amount equivalent to US$70 719,00  multiplied by the parallel market rate obtaining on the date of payment and within 48 hours of the uplifting of the award. Concerns arose regarding whether or not the award did not conflict with the public policy of Zimbabwe insofar as it referred to the parallel market rate.</p> <p> On 3 June 2013 the arbitration panel amended the award by severing the offending words such that the relevant portion of the award now read:</p> <p>“Tel One is to pay Unitrack an amount equal to US$70 719.00 obtaining on the day of payment, which is to be within 48 hours of the uplifting of this Award.”</p> <p>The award was not complied with. The appellant then applied, under HC4641/13, for the registration of the arbitral award as an order of the High Court for purposes of enforcement. The application for the registration of the arbitral award was served on the respondent’s legal practitioners. The respondent’s legal practitioners wrote a letter to the appellant’s, indicating that the application was premature and unnecessary at that stage. No opposition to the application was filed with the court.</p> <p>The application was granted by the High Court. Notably, in addition to the registration of the arbitral award, the order of the High Court further provided for the payment of interest. The arbitral award itself made no such provision. The order also provided for the costs of the application to be borne by the respondent on a legal practitioner/client scale.</p> <p>The respondent thereafter applied, in terms of Order 49 r 449 of the High Court Rules, 1971, for the rescission of the judgment on the premise that it was granted in its absence. Furthermore, that the order was erroneously sought and erroneously granted as the initial award had not made any provision relating to the payment of interest and costs. The High Court granted an order, in HC154/14, in the following terms:</p> <p>“IT IS ORDERED THAT:</p> <ol> <li>The order issued by this Honourable Court under HC4641/13 dated 10th July 2013 be rescinded and or varied by the deletion from the order of that part of paragraph 2 thereof requiring applicant to pay interest on the sum of US$70 719,00 calculated at the rate of 5% per annum calculated from the 1st December 2008 to the date of payment in full.</li> <li>The respondent shall pay the costs of this application.”</li> </ol> <p><strong>THIS APPEAL</strong></p> <p>The appellant has now appealed to this Court on the singular ground that the High Court in HC154/14 erred in finding that the order made by the same court in case No. HC 4641/13 was erroneously granted and that consequently it was liable to be rescinded or varied in terms of r 449 (1) of the High Court Rules, 1971.</p> <p>The appellant’s contention before this Court was that when the learned Judge in HC154/14 set aside the order in HC4641/13 and substituted it with what she thought was the correct order, she did so on the basis that the judge in HC4641/13 was wrong. It was contended that this constituted an incompetent review of the judgment or order of a judge of parallel jurisdiction. It was also argued that r 449 was not intended for and is not applicable in situations where a party who knows about proceedings instituted against it chooses to ignore them. It was further submitted that it was substantively wrong for the learned Judge in HC154/14 to find that there was no legal basis for the judge in HC4641/13 to accede to the application made for payment of interest.</p> <p>The respondent on the other hand contended that r 449 can be used to rescind judgments that are substantively wrong. It was submitted that in terms of r 449 a High Court judge can review the judgment or order of another High Court judge of parallel jurisdiction.</p> <p><strong>ISSUE FOR DETERMINATION</strong></p> <p>The issue for determination by this Court is whether the court <em>a quo</em> erred in applying r 449 to set aside the decision given earlier by another judge of the same jurisdiction.</p> <p><strong>THE LAW</strong></p> <p>Rule 449 of the High Court rules provides:</p> <p>“<strong>449. Correction, variation and rescission of judgments and orders</strong></p> <ol> <li>The court or a judge may, in addition to any other power it or he may have, <em>mero motu</em> or upon the application of any party affected, correct, rescind or vary any judgment or order –</li> </ol> <ul> <li>that was erroneously sought or erroneously granted in the absence of any party affected thereby;” (my emphasis)</li> </ul> <p>This appeal relates to the propriety of the application of r 449 by the court <em>a quo</em> in HH154/14.</p> <p>It is a general principle of our law that once a court or judicial officer renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or legal authority to re-examine or revisit that decision. Once a decision is made, the term “<em>functus officio</em>” applies to the court or judicial officer concerned. Rule 449 is an exception to that principle and allows a court to revisit a decision that it has previously made, but only allows it in restricted circumstances. In <em>Tiriboyi v Nyoni &amp; Another</em> HH117/2004 the following was stated:</p> <p>“The purpose of r 449 appears to me to (be to) enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error and where to allow such to stand on the excuse that the court is <em>functus officio</em> would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.” (my emphasis).</p> <p>It seems to me that r 449 is meant for the correction of orders erroneously sought or erroneously granted and not orders that are erroneous in substance. In the South African case of <em>DA Weelson v Waterlinx Pool and Spa (Pty) Ltd</em> (13904/2007) [2013] ZAPGJHC 47 (1 March 2013), the court was dealing with r 42 (1) (a) whose provisions are similar to those of our r 449. At para [5] the court stated:</p> <p>“Rule 42 (1) provides that a court may of its own accord or upon application of any party affected by the order grant a rescission of the order or vary the order or judgment which has been erroneously sought or erroneously granted in the absence of any party affected thereby. The rule was introduced to cater for errors in judgment which are obviously wrong and are procedurally based.” (my emphasis)</p> <p>The order that was granted in HC4641/13 was not sought erroneously and was not granted erroneously, in the absence of the respondent. The respondent chose not to oppose the application preferring to complain to the appellant that the application was prematurely filed.</p> <p>The question whether a judge can alter the decision of another judge has been discussed in a number of cases. In <em>Pyramid Motor Corporation (Pvt) Ltd v Zimbabwe Banking Corporation</em> 1984 (2) ZLR 29, the court had this to say:</p> <p>“When Goldin J decided that case he was a judge of the High Court. As a judge of parallel jurisdiction, I think I can only refuse to follow his decision. To make a declaration that he wrongly decided the <strong>Rhostar</strong> case would I think, be treading on the prerogative of the Supreme Court.”</p> <p>On the facts of this case the court <em>a quo</em> in HC154/14 altered the decision of the court in HC4641/13 in circumstances where r 449 was inapplicable. The learned judge <em>a</em> <em>quo</em> stated at p 7 of the judgment:</p> <p>“It is common cause that the arbitral award did not provide for payment of interest. Therefore, the High Court order of 10 July 2013, which provided for payment of interest from 31 December 2008, was erroneously sought, and erroneously granted. There was no legal basis for acceding to that application for interest, in an application for registration of an arbitral award for purposes of execution in the absence of provision for interest in the award itself.”</p> <p>The quoted excerpt shows that the judge <em>a quo’s</em> decision was based on her assessment that the decision of the judge in HC 4641/13 was substantively wrong. It is possible that her assessment could be sound at law especially if regard is had to case authorities, as in <em>Conforce (Pvt) Ltd v City of Harare</em> 2000 (1) ZLR 445 (H) at 540D where the following was stated:</p> <p>“I agree that a court should not interfere with the Arbitrator’s Award so as to alter it to accord with what the court thinks the Arbitrator actually decided.”</p> <p>This Court is however not seized with the determination of the correctness or propriety of the decision in HC 4641/13. This Court is rather faced with the issue of the propriety of the decision of the High Court whereby a judge of the that Court reviewed an earlier decision by a judge of the same Court and therefore of parallel jurisdiction, and substituted the earlier order with one that she felt the earlier judge ought to have made, for the reason that she disagreed with the earlier court’s decision.</p> <p>The High Court had no power to so act. It trod on the prerogative of the Supreme Court.</p> <p>                        In <em>City of Mutare v Mawoyo</em> 1995 (1) ZLR 258 (HC) at 266E – 267C it was said:</p> <p>“In <em>Parker v Parker &amp; Ors</em> <em>supra</em> SCOTT J was asked to alter an order by SANDURA JP directing that an exception in case HC 3196/84 and an application in case HC 1108/85, both cases involving the same parties, be heard together on the same occasion. Declining jurisdiction, SCOTT J said at 85B:</p> <p>‘The whole thrust of the reasons advanced by Mr O’Meara seems to point to an assertion that in his view the order was wrongly made. As a judge of the High Court, it is not up to me to vary or alter an order of a judge of parallel jurisdiction, short of expanding on it.’</p> <p>Mr Wernberg’s argument was that the court has inherent powers to vary its orders. No authority was cited for this general proposition. Rule 449 (1) of the Rules of the High Court of Zimbabwe 1971 does not cover variations of the orders in the manner suggested by the applicant in this case. The order by BARTLETT J was not erroneously applied for or erroneously granted. The variation applied for does not involve the correction of an error or omission in the order so that it accurately expresses the intention of the court.</p> <p>I am being asked to delete ss 1 and 2 of the original order and substitute in their places the declarations requested by the applicant, without it being said what is to happen to the default judgment on which the order sought to be mutilated now stands. Although called an amendment, what is being applied for is to all intents and purposes a complete substitution of the terms and content of one order with those of another order.</p> <p>Can one set aside an order and substitute in its place a completely different matter without doing violence to the sense and substance of the judgment or the intention of the court that granted the order? The sense and substance of the original order will be changed….”</p> <p>The facts that confronted the court in HC154/14 do not fall within the kind of facts that are contemplated by r 449 or would justify the invocation of the rule. Even if the court in HC154/14 was substantively correct in its views on the issue of the provision for the payment of interest, and the court in HC4641/13 was wrong, the proper remedy available to the respondent in that situation would have been an appeal and not rescission as was sought herein. However, as indicated earlier, the substantive correctness of the decision of the court <em>a quo</em> in HC4641/13 is not for this Court to determine in these proceedings. It is the propriety of the application of r 449 in HC154/14 that is.</p> <p>                        It is for these reasons that we found that the appeal had merit and proceeded to grant the order that we did as recorded at the beginning of this judgment.</p> <p><strong>ZIYAMBI JA:</strong>                       I agree</p> <p><strong>HLATSHWAYO JA:</strong>           I agree</p> <p>Gill, Godlonton &amp; Gerrans, Appellant’s Legal Practitioners</p> <p>Dondo &amp; Partners, Respondent’s Legal Practitioners. </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2014/10/2018-zwsc-10.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32268">2018-zwsc-10.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2014/10/2018-zwsc-10.pdf" type="application/pdf; length=182474">2018-zwsc-10.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/enforcement">enforcement</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2004/117">Tiriboyi v Nyoni Jani and Another ( HH 117-2004 ) [2004] ZWHHC 117 (25 May 2004);</a></div></div></div> Thu, 26 Apr 2018 06:39:22 +0000 admin 8757 at https://old.zimlii.org University of Zimbabwe v Jirira & Another (SC 12/18, Chamber Application No. SC 179/15) [2018] ZWSC 12 (15 June 2016); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2016/12-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>UNIVERSITY     OF     ZIMBABWE</strong></p> <p><strong>v</strong></p> <ol> <li><strong>KWANELE N.JIRIRA(2)LOUIS MASUKO</strong></li> </ol> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BHUNU JA</strong></p> <p><strong>HARARE, 15 JUNE 2016</strong></p> <p><em>R. H. Goba, </em>for the applicant</p> <p><em>K. E. Kadzere, </em>for the respondents</p> <p><strong>IN CHAMBERS</strong></p> <p><strong>BHUNU JA:</strong>       This is a chamber application for leave to appeal against the judgment of the Labour Court in terms of r 5 (2) of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975.</p> <p>The applicant is a tertiary educational institution incorporated as such under the University of Zimbabwe Act [<em>Chapter 25:16</em>]. Both respondents are its former workers who were employed as research fellows at its Institute of Development Studies. They were dismissed from employment by the disciplinary Tribunal on allegations of misconduct. They are alleged to have wilfully refused to obey a lawful order to be redeployed from the Institute of Development Studies offices to the University campus.</p> <p>Aggrieved by their dismissal from employment they approached the Labour officer complaining of unfair dismissal. The Labour Officer in turn referred their grievance for arbitration. The arbitrator ruled in their favour and made an award of reinstatement and in the alternative damages in<em> lieu</em> of reinstatement.</p> <p>Dissatisfied with the Arbitration award, the applicant appealed to the Labour Court without success. Unhappy with the decision of the Labour court, the applicant sought leave to appeal to this court. On 5 April 2013 the Labour Court granted the applicant leave to appeal to this Court.</p> <p>The applicant did not however reinstate the respondent as ordered by both the Arbitrator and the Labour Court. As the result the respondents approached the Arbitrator for quantification of damages in<em> lieu</em> of reinstatement. The Arbitrator assessed damages in the amounts of US$156 852.13 and US$134 362. 00, respectively.</p> <p>Aggrieved by the quantification award, the applicant once again appealed against that award to the Labour Court. Despite the appeal, the respondents proceeded to register the award with the High Court for enforcement. A writ of execution and attachment of the applicant’s property was subsequently issued. The applicant made an urgent application for stay of execution without success. It then successfully appealed to this court for stay of execution pending appeal under judgment number SC 6/12.</p> <p>The applicant’s appeal against the quantification award was subsequently dismissed by the Labour Court. Its complaint is that CHIVIZHE J granted the application for dismissal of the appeal without a formal hearing of the appeal. They allege that despite numerous requests the honourable judge failed to provide the applicant with reasons for judgment resulting in the lapse of time stipulated of the intended appeal.</p> <p>                        It therefore became necessary to apply for condonation and extension of time to file an application for leave to apply to this Court. Both parties filed heads of argument. The applicant now alleges that while they were waiting for the set down date of hearing they were surprised to receive a written judgment by HOVE J dismissing the application for leave to appeal to this Court. It is not clear to me but it appears that the matter was subsequently placed before the same judge who then properly heard the application and dismissed the applicant’s claim under judgment LCH/H/472/2011 at page 56 of the record of proceedings. It is this judgment which prompted this application.</p> <p>In terms s 92F (3) of the Labour Act [<em>Chapter 28:01</em>], where a judge of the Labour Court refuses to grant leave to appeal, the applicant may seek leave from a judge of this Court. When a judge of the Supreme Court sits in chambers to decide the application for leave to appeal he does not treat the application as an appeal against the refusal to grant leave by the court <em>a quo</em>. He simply decides the matter on the merits as if it was a fresh application before him/her. For that reason while he may consider the criticisms levelled against the judge in the court <em>a quo</em>, these are not overriding considerations because he makes his own independent fresh determination on the basis of the papers and arguments placed before him/her.</p> <p>I now turn to consider the application for leave to appeal to this Court on the merits.</p> <p>An application for leave to appeal to this Court is firmly grounded on the applicant’s prospects of success on appeal.  In terms of s 92F of the Act, appeals from the Labour Court only lie to this Court on a point of law. In that regard the first question for consideration is whether the applicant’s grounds of appeal raise a point of law.</p> <p>The grounds of appeal essentially raises the question whether the applicant was subjected to a fair trial when CHIVIZHE J issued an order under case number LC/H/145/11 without giving reasons for the order which it has branded a judgment.</p> <p>The order is dated 31 October 2012 and it reads:</p> <p>“IN THE LABOUR COURT OF ZIMBABWE</p> <p>LC/H/145/11</p> <p>In the matter between:-</p> <p><strong>KWANELE JIRIRA &amp; ANOTHER                                                 Applicants</strong></p> <p><strong>Vs</strong></p> <p><strong>UNIVERSITY OF ZIMBABWE                                          Respondents</strong></p> <p>Before the Honourable B T Chivizhe, President</p> <p><strong>(IN CHAMBERS)</strong></p> <p>Whereupon after reading documents filed of record</p> <p>IT IS ORDERED THAT</p> <p>The application for dismissal of appeal in terms of Rule 19 (3) (a) of the Labour Court Rules be and is hereby granted.”</p> <p>The above order is clearly not a judgment but an order given by the learned judge <em>a quo</em> sitting in chambers. This is so because it does not bear a judgment number or reasons for judgment. It cites no legal representatives signifying that none were heard although both parties had legal representation. This is clearly a default judgment. It is not correct for the applicant to say in its founding affidavit that the learned judge did not give reasons for its judgment. This is because in the same breath it confesses that the judgment was given pursuant to an application for dismissal of its appeal because of its failure to file heads of argument timeously.</p> <p>It is therefore plain that the applicant’s appeal was dismissed for want of compliance with the Rules. Nowhere in its grounds of appeal does the applicant allege that it filed its heads of argument timeously. </p> <p>In my view, the applicant having failed to file its heads of argument within the prescribed time limit, it ought to have applied for rescission of judgment in terms of s 92C. The section confers a wide discretion on a judge of the labour Court to rescind his own decisions including those given in the absence of a party or in error. The section provides as follows:</p> <p>“(1) Subject to this section, the Labour Court may, on application, rescind or vary any determination or order—</p> <ul> <li>which it made in the absence of the party against whom it was made;</li> <li> </li> </ul> <p>(<em>b</em>) which the Labour Court is satisfied is void or was obtained by fraud or a mistake common to the parties; or</p> <ul> <li>in order to correct any patent error.</li> </ul> <p>(2) The Labour Court shall not exercise the powers conferred by subsection (1)–</p> <ul> <li>except upon notice to all the parties affected by the determination or order concerned; or</li> <li>in respect of any determination or order which is the subject of a pending appeal or review.</li> </ul> <p>(3) Where an application has been made to the Labour Court to rescind or vary any determination or order in terms of subsection (1), the Labour Court may direct that—</p> <ul> <li>the determination or order shall be carried into execution; or</li> <li>execution of the determination or order shall be suspended pending the decision upon the application;</li> </ul> <p>upon such terms as the Labour Court may fix as to security for the due performance of the determination or order or any variation thereof”</p> <p>That application ought to have been made simultaneously with an application for condonation and extension of time within which to file its heads of argument in terms of r 26 which provides that:</p> <p>“At any time before or during the hearing of a matter a President or the Court may—</p> <p>(<em>a</em>) direct, authorise or condone a departure from any of these rules, including an extension of any period specified therein, where the President or Court is satisfied that the departure is required in the interests</p> <p>of justice, fairness and equity;</p> <p>(<em>b</em>) give such directions as to procedure in respect of any matter not expressly provided for in these rules as</p> <p>appear to the President of the Court to be just, expedient and equitable”</p> <p>In terms of r 33 the applicant had 30 days within which to make the above applications for relief in the court <em>a quo.</em> From the date it became aware of the so called judgment. This it not do. The so called judgment it seeks to impugn is dated 31 October 2012. It only approached this court for relief about two and a half years later on 15 March 2015. That delay in approaching this Court is lengthy and inordinate. It cannot be the kind of delay occasioned by a party who has the serious intention to prosecute its appeal.</p> <p>It appears to me that this Application was lodged as an afterthought, simply to circumvent the court <em>a quo</em> and throw spanners into the pending execution. The applicant could no longer approach the court <em>a quo</em> for relief as it was now woefully out of time. Approaching this Court was an ingenuous way of evading the natural consequences of its inordinate delay in approaching the court <em>a quo</em> for relief timeously.</p> <p>The applicant has not proffered any explanation for the inordinate delay of more than two and a half years before approaching this Court if it was sincere in its belief that the relief it seeks resides in this Court. In any case the applicant ought to have exhausted its domestic remedies before approaching this Court for relief. For the foregoing reasons I come to the conclusion that there is absolutely no merit in this Application it is accordingly ordered that the application be and is hereby dismissed with costs.</p> <p><em>Ziumbe &amp; partners, </em>applicant’s legal practitioners</p> <p><em>Hungwe &amp; Mandevere, </em>respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2016/12/2018-zwsc-12.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30688">2018-zwsc-12.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2016/12/2018-zwsc-12.pdf" type="application/pdf; length=127574">2018-zwsc-12.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/arbitration">ARBITRATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/arbitration-appeal">Arbitration appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/award">award</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/enforcement">enforcement</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1982/27">University of Zimbabwe Act, [Chapter 25:16] </a></div><div class="field-item odd"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div></div></div> Wed, 25 Apr 2018 14:16:41 +0000 admin 8755 at https://old.zimlii.org