MTSHIYA J: On 17 May 2011 I dismissed an urgent application wherein the
applicant sought the following relief:-
“FINAL ORDER SOUGHT
It is ordered that:-
1.
The
Arbitration award by Arbitrator Chimhuka issued no 28 April 2011 be and is
hereby registered as an order of this Honourable Court.
2.
The
Writ of execution issued by the Registrar on 23 April 2011 under case No. HC
1926/11 be and is hereby set aside.
3.
Messrs
Sakala and Company be and are hereby ordered to pay the costs of this
application de bonis prepriis on a
higher scale alternatively first, second and third respondents are hereby
ordered to pay costs of this application on a legal practitioner and client
scale.
INTERIM RELIEF SOUGHT
Pending the determination
of this application, the applicant is hereby granted the following relief;-
1.
An interdict be and is hereby issued stopping the removal of
any of applicant property in pursuant to the Writ of Execution issued on 23
April 2011 under case No. HC 1926/11. In the event that any of the applicant's
property has been removed, the fourth respondent is hereby instructed to
release such property into applicant's custody.
2.
Applicant is hereby granted authority to serve this order on
the first, second, third and fourth respondents.”
I have since received a
request for my reasons for the decision I made. I give here
below the reasons for my decision.
On
3 February 2011 the respondents were granted the following award:-
“WHEREUPON after perusing
the claimant's written submissions filed of record and in light of the
respondent's default in filing written submissions.
IT
IS ORDERED THAT:
1.
The respondent to pay to each claimant the amount shown
below, this being the difference of what is legally due for each claimant and
what has already been paid (retrenchment packages):- GODFREY NGWARU = $ 2
667-00
LINOS CHIGONDA =$15 029-23
CLOUD ZINGUNDE =$15 408-00
2.
This award to be effected within 14 days from the date of
delivery.
3.
Cost of this arbitration to be borne by claimants.”
On 25 March 2011 the
Arbitral Award was registered as an order of this court in the
following terms:-
“IT
IS ORDERED THAT:
1.
The Arbitration Award dated the 3rd February, 2011
be and is hereby registered as an order of this Court for purposes of
execution”
The above order is still
in force and can only be set aside by this court.
On the basis of the above
order the respondents issued a writ of execution followed
by a Notice of Removal on 27 April
2011. The removal notice indicated that
the applicant's goods would be attached on 3 May 2011. The applicants' goods
were indeed attached as averred in the founding affidavit.
On 28 April 2011, a month
after the arbitral award had been registered as an order of this court, the
applicant obtained an award from the same arbitrator setting aside the already
registered arbitral award. The new arbitral award granted on 28 April 2011 read
as follows:-
“1. The
arbitrator has jurisdiction to hear and determine on that application for
rescission of a
default judgment.
2.
The
default judgment is hereby set aside to allow another arbitrator to look into
the merits of the case – it is undesirable that labour disputes be resolved on
the basis of technicalities
3.
The
matter is referred to the designated agent of the National Employment Council
of the industry for purpose of securing a settlement failure of which he/she
can refer the matter to an independent arbitrator.
4.
In the
event that the matter is referred to an independent arbitrator the cost of
arbitration is to be borne by the applicant.
5.
Cost of this arbitration to be borne by the parties equally.
6.
Conciliation
and reference to arbitration to be done within 14 days from the date this
order”.
Legally the above award has no effect on
what is already an order of this court.
The papers do not indicate when the
application to set aside the registered arbitral
award was made. It is on
the basis of the second arbitral award that this application purports to have
been filed. The relevant part of the certificate of urgency reads as follows:
“2. Following a labour dispute the three (3)
respondents obtained an Arbitration Award for the payment of $33 104-223.
3. Despite the fact that the aforesaid
Arbitration Award has been set aside, the three respondents are insisting on
the payment, through execution, of the aforestated amount.
4.
The
Deputy Sheriff has attached applicant's basic tools of trade. I have
considered:-
(a)
The
basic nature of the goods in relation to applicant's business;
(b)
The
fact that respondents are men of straw;
(c)
The
award upon which payment is based has been set aside and
(d)
The
respondents are unreasonably and without basis insisting on payment.
5.
In view of these factors, I conclude
that the matter is urgent. Execution has
to be stopped lest irreparable harm will
be suffered.
6.
It
is for these reasons, that this matter, in my considered view, is extremely
urgent”.
In support of urgency, the founding
affidavit also states, in part:
“Meanwhile, applicant successfully applied
for the rescission of the default Arbitration award, Annexure “A”. Following a
contested hearing, the same Arbitrator issued an Award setting aside the
default award. I annex a copy of the latest award and mark it Annexure “E”.
The existence of Annexure “E” has been
brought to the attention of the respondents' lawyers. Despite their awareness
of the existence of Annexure “E” above, the respondents' lawyers are insisting
that the Deputy Sheriff should proceed with execution. The lame excuse given is
that until the Arbitration Award Annexure “E” has been registered, they will
not recognize it. With respect, such conduct on respondents' lawyers is
regrettable and in my view unprofessional. The conduct only serves to increase
the workload of this Honourable Court and the costs attendant to this matter.
Owing to the aforesaid conduct of the
respondents' lawyers, the Deputy Sheriff is at applicant's premises intending
to remove applicant's property. It will be noted from the Notice of Seizure and
Attachment, Annexure “B” that the property that is sought to be removed are
applicant's business trucks responsible for deliveries countrywide. The removal
of the trucks will not only literally put a halt applicant's business, it
affects consumers at large since applicant is the country's largest producer
and supplier of basic commodities including flour, cooking oil and salt. This
in my view is totally not called for considering that the execution is
unnecessary.
In the circumstances, I request this
Honourable Court to stay execution of the award in the interim. The final order
that I seek is the registration of the latest award Annexure “E” and the
setting aside of the Writ of Execution. I seek the registration on the basis of
s 98(14) of the Labour Act which provides as follows:-
'Any party to whom an
arbitral award relates may submit for registration the copy of it furnished to
him 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'
The applicant has no other remedy to stay
the execution of the writ of execution. If the stay of execution is not
granted, irreparable economic harm will be visited on the applicant and the
public at large as set out in para eight (8) above”.
In the opposing affidavit, supported by
both second and third respondents, the first
respondents states as follows:
“1. This matter cannot be heard on an urgent
basis because the reasons that have been given are not valid but are just meant
to buy time.
2. The applicant was served with an
arbitral ward by the Arbitrator M. Chimhuka and was also served with a Chamber
Application of registration of the arbitral award under Case number HC 1962/11
on 22nd February 2011. Applicant never bothered to oppose the
application only to wait until the Deputy Sheriff wanted to remove the attached
goods.
3. The award upon which payment is based
on has not been set aside or appealed against at the Labour Court by the
applicant”.
Mr Maguchu, for
the applicant, submitted that prior to the registration of the award the
applicant had no legal basis, as provided for in Article 36 of the Arbitration
Act [Cap 7:15] (“the Act”) to
interfere with the registration of the award. He said it is only on the basis
of the provisions of Article 36 of the Act that the award could be set
aside.
The said Article 36 of the Act provides as follows:
“(1) Recognition
or enforcement of an arbitral award, irrespective of the country
in which it was made,
may be refused only-
(a)
At the
request of the party against whom it is invoked, if that party furnishes to the
court where recognition or enforcement is sought proof that-
(i)
A
party to the arbitration agreement referred to in article 7 was under some incapacity;
or the said agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law of the country
where the award was made, or
(ii)
The
party against whom the award is invoked was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was otherwise
unable to present his case; or
(iii)
The
award deals with a dispute not contemplated by or not falling within the terms
of the submission to arbitration, or it 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,
that part of the award which contains decisions on matters submitted to
arbitration may be recognised and enforced; or
(iv)
The
composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties or, failing such agreement, was
not in accordance with the law of the country where the arbitration took place;
or
(v)
The
award has not yet become binding on the parties or has been set aside or
suspended by a court of the country in which, or under the law of which, that
award was made; or
(b)
If the
court finds that –
(i)
The
subject-matter of the dispute is not capable of settlement by arbitration under
the law of Zimbabwe; or
(ii)
The
recognition or enforcement of the award would be contrary to the public policy
of Zimbabwe.
(2) If an application for setting aside or
suspension of an award has been made to a court referred to in paragraph
(1)(a)(v) of this article, the court where recognition or enforcement is sought
may, if it considers it proper, adjourn its decision and may also, on the
application of the party claiming recognition or enforcement of the award,
order the other party to provide appropriate security.
(3) For the avoidance of doubt and without
limiting the generality of paragraph (1)(b)(ii) of this article, it is declared
that the recognition or enforcement of an award would be contrary to the public
policy of Zimbabwe if-
(a) the
making of the award was induced or effected by fraud or corruption; or
(b) a
breach of the rules of natural justice occurred in connection with the
making of the
award”.
The chronology of event
in this matter throws me to the side of the respondents. The applicant does not
deny that it was duly served with a chamber application for the registration of
the award of 3 February 2011. The award, whose registration the applicant says
it could not interfere with, is the same award whose execution it now seeks to
frustrate. The founding affidavit is silent on why the registration of the
award was not opposed and we are not told as to when the rescission application
was filed. We are also not given the
detailed reasons for the rescission except that the award was granted in
default.
However, what emerges clearly from the events
surrounding this matter, is that the threat the applicant now seeks to avert
has always been in existence since 3 February 2011. The day of reckoning cannot
be said to have been triggered by the writ of execution issued on 23 April
20011 for the attachment of the applicant's goods. The applicant was served
with an application for the registration of the award on 22 February 2011. The
applicant knew very well that registration of the award was meant to facilitate
execution. I find no legal or logical basis for the applicant to hide behind
the provisions of s 36 of the Act. The reasons, if any, for resisting the
execution of the registered order must have existed prior to its registration.
In General Transport & Engineering Private limited & Ors v Zimbank
Corporation Private Limited 1988(2) ZLR 301(H) GILLESPIE J said:
“A party who brings proceedings urgently
gains a considerable advantage over persons whose disputes are being dealt with
in the normal course of events. This preferential treatment is only extended
where good cause can be shown for treating one litigant differently from most
litigants. For instance where, if it is not afforded, the eventual relief will
be hollow because of the delay in obtaining it”.
I associate myself with
the above remarks because, given what transpired, I am unable to find good
cause for giving the applicant preferential treatment. A litigant seeking
assistance through the urgent window of this court must demonstrate having
taken immediate action (i.e. timeous action) when the danger to be averted
first arose. As already explained, that is not the case in casu. In my view, the need to take action arose long before 10
May 2011. It was also a long time before the award was registered by this court
on 25 March 2011. Apart from the aspect of default, I believe that the main
reasons for applying to set aside the award were in existence on 22 February
2011 and cannot therefore be conveniently ignored through a restrictive
interpretation of Article 36 of the Act.
In view of the
foregoing, my view is that this application does not qualify to be heard on an
urgent basis. That view disables me from considering the merits of the case.
The applicant can proceed on the basis of an ordinary application.
- The application is
dismissed with costs for lack of urgency.
Dube Manikai & Hwacha, applicant's legal practitioners
Sakala & Company,
respondents' legal practitioners
