MUTEMA J: This application is
redolent with irregularities. This, understandably, constrained the respondent
to raise a number of points in limine
praying for its dismissal.
The
irregularities complained of, which were not fully conceded by the applicant,
are these:
1.
the
application does not comply with R 227(3) in that when it was filed, it did not
contain a draft of the order sought;
2.
it
offends against R 227(2)(d) in that it has more than 5 pages but does not have
an index attached;
3.
it
is unclear whether the application is being brought in terms of Order 32
(ordinary Court application) or in terms of Order 33 (an application for
review). Applicant has prefaced its founding papers with a document titled
“Court Application” and another titled “Application for Review” both prepared
by applicant's legal practitioners on 4 May, 2010 and filed on 17 May, 2010.
4.
if
it be taken as an application for review, it is fraught with deficiencies in
that it fails to comply with R256, 257 and 259 by not citing the arbitrator
whose award is sought to be reviewed, by not stating shortly and clearly the
grounds upon which the applicant seeks to have the proceedings set aside or
corrected and by not having been filed within the stipulated 8 week period.
Further, this Court does not have review jurisdiction in respect of arbitration
proceedings. On the basis of the foregoing alleged irregularities, the
respondent moved the court to dismiss the application with costs on a higher
scale.
The gravamen of the application is
essentially for the setting aside of an arbitral award.
The applicant's legal practitioner
while making half-hearted concessions in respect of the above cited
irregularities, through skilful manipulation that is not taught in law school
but acquired naturally thereafter, endeavoured to persuade the Court to invoke
R 4C(a) and condone the departure from the provisions of the rules flouted.
Regarding
the non-attachment of the draft order he insisted that one was attached to the
application. He submitted that in any event, when the objection pertaining
thereto was raised in the respondent's Opposing Affidavit, one was attached to
the Answering Affidavit in case respondent was truthful in objecting. I am not
persuaded that respondent would have been that naïve to raise an objection of
this nature merely for the “heck” of it if such documents were attached. If
that were the sole flouting of the rules the Court would not have any
difficulty in invoking R 4C(a). There are numerous others which are more
material.
As
regards the non-indexing of the application, this was conceded with the
qualification that it was subsequently cured by the filing of a consolidated
index thereby rendering the initial non-indexing irrelevant. He asked the Court
to invoke R 4 and condone the departure from the provisions of the rules in the
interests of justice. For the same reason given when dealing with non-filing of
the draft order supra I am not
persuaded to condone. Over and above that that consolidated index being alluded
to was not prepared by applicant's legal practitioners but by the respondent's
legal practitioners, ex mero motu,
who are not the dominus litus.
Regarding
the issue that the application was made using the wrong form of review instead
of in terms of Article 34(2) of the Model Law in terms of the Arbitration Act,
[Cap 7:15], the legal practitioner conceded
the error and attributed it to a genuine but mistaken belief of law on his
part. This, quite apart from being utterly footling at law, for lawyers are
presumed to know the law, the alleged mistake of law is so gross and persistent
as to render it not only not genuine but inexcusable.
Here
is a terse recital of the legal practitioner's blunders of the law which
culminated in the one at hand:
(a) in what is titled “Application For
Review” (p 3), it is stated “TAKE NOTICE THAT on a date to be set by the
Registrar, an application will be made for the review of an arbitrary (sic) award made by the Honourable Mr
Mordecai P. Mahlangu, on the 23rd of February 2010 but received by
the applicant on 3 March 2010….. on the following grounds”.
Six
grounds for the review are then enumerated. The Founding Affidavit clearly
deals with an application for review. In spite of being alerted to the
irregularities alluded to supra by
the respondent in the Opposing Affidavit, including the wrong form of the
application, the applicant did not “reck”. It remained obdurate in its
Answering Affidavit that the application for review was the proper one. In para
4.1. “The long and short of it all is that this is a Court Application for
review. This is quite apparent on the papers. The document says it's a Court
application and the other defines it as one for review. No magic is required to
discern this much”.
“4.2. The basis for the application for review
could not have been stated in better terms than what it is in the founding
affidavit. In summary and in simple terms, the award is being challenged on the
grounds that it is contradictory, it is unreasonable and it offends against
public policy”
“4.3. Citing the Arbitrator as a party to the
proceedings is not a rule cast in concrete. Such non-joinder is not fatal to
the proceedings …..”
In para 5.1. the applicant
reiterates that the application was one for review by averring,
“Again I should emphasis (sic) that there is no magic in how the
grounds for review should be stated as long as they are stated with
sufficient clarity to enable the Court to appreciate their substance” (my
emphasis).
In
para 6 of the Answering Affidavit, the applicant attempts to defend why the
review application was filed outside the required 8 week period. It avers that
it first filed an application for review in the Labour Court within the 8 week period and
alleges that a copy of that application is attached marked 'A'. However, no
such copy is attached! After being awakened to the fact that only the High
Court had exclusive jurisdiction to set aside an arbitral award made in terms
of the Arbitration Act by way of application it then withdrew that application from
the Labour Court.
It alleges also that a copy of such withdrawal is attached marked 'B'. Again no
such copy is attached!
In
para 7.1 applicant avers that it believed that “respondent is wrong in its view
that the High Court has no review jurisdiction in respect of arbitration
proceedings”. And in para 8.2 applicant alleges that “our Courts have dealt
with applications for setting aside such awards as ones for review”.
The
foregoing recital displays what I may call an orgy of legal blunders on the part
of the applicant's legal practitioner. At the hearing, while conceding that
this application should not have been brought by way of review, Mr Kwaramba submitted that this Court is
perfectly entitled to condone the use of the incorrect form of application
seeking to rely on the case of Moyo v
Forestry Commission 1996(1) ZLR 173 (a case not cited in his Heads of
Argument)
That
case does not support the applicant's cause because it was overturned on appeal
in the case of Forestry Commission v Moyo
1997 (1) ZLR 254. In the earlier case, the point had been made in limine that a wrong procedure had
been used and that the decision complained of should have been brought on
review instead of an ordinary court application. The court a quo had held that the relief susceptible to review could be
granted even though the proceedings had not been brought under the review
procedure provided in the rules. The court had also condoned the delay of over
2 years, although there had been no application for condonation or explanation
for the delay. The reason for so doing was that the decision to dismiss the
respondent from employment was null and void because of gross procedural
irregularities by the disciplinary enquiry and so to dismiss the application
would constitute a failure to redress an injustice. The Supreme Court, in
overturning the decision of the court a
quo, held inter alia that though
the rules of court are not an end in themselves, to be slavishly applied for
their own sake, they are there to regulate the practice and procedure of the
High Court and, in general, strong grounds would have to be advanced to
persuade the court or judge to act outside them.
In
casu have strong grounds been
advanced to persuade the court to act outside the rules? The answer must be perfectly
in the negative. The orgy of legal blunders recited supra speaks for itself and admits of no other answer.
In
spite of it having been pointed out that a wrong format has been employed in
the launch of this application, the applicant persevered undaunted in its
argument in futility that the application was one for review and that 'No magic
is required to discern this much' and that the High Court has 'review
jurisdiction in respect of arbitration proceedings'. It was only in the
applicant's Heads of Argument that the legal practitioner made an unexplained
about turn stating that the application is one in terms of Article 34 of the
Model Law, a review sui generis to be
understood as one for setting aside in terms of Article 34(2)(b)(ii). Article
34(2)(b)(ii) of the Model Law provides that the High Court can only set aside
an arbitral award if it finds that the award is in conflict with the public
policy of Zimbabwe.
The
mere fact that the arbitral award is alleged to be 'in conflict with the public
policy of Zimbabwe', as one of the grounds for review in the application per se does not imbue the review
application with the nuance to transform it into an application in terms of
Article 34 of the Model Law.
That
an application under Article 34 of the Model law must be made in terms of Order
32 and not Order 33 of the High Court Rules, 1971 was put beyond doubt by
GWAUNZA JA in Mtetwa and Anor v
Mupamhadzi 2007 (1) ZLR 253(S) at pages 254 G-H and 255 A-C. The words of the
learned Judge of Appeal in that case bear useful repetition for clarity. She
said,
“It
is contended for the appellants that they were perfectly within their rights to
file an application for review/setting aside of the decision of the arbitrator
in terms of Order 33 r 256 of the High Court Rules since there is nothing in
that rule which precluded them from bringing such an application. This
contention, I find, has no validity. As discussed below, the Model Law, in its
Article 34(1), makes it clear that recourse to a court against an arbitral
award may be made only by an application for setting aside in accordance with
paras (2) and (3) thereof. Specifically, the relevant provision reads as
follows:
“ARTICLE
34
Application
for setting aside an exclusive recourse against arbitral award
(1)
Recourse
to a court against an arbitral award may be made only by an
application for setting aside in
accordance with paras (2) and (3) of this article” (my emphasis).
The use of the words “exclusive” and
“only”, in my view, suggest that there is to be no compromise when it comes to
an attempt to have an arbitral ward set aside. The application must be made in
terms of the provision cited. That provision quite simply and effectively
precludes the applicants from filing their application for the setting aside of
an arbitral award, otherwise than in terms of paras (2) and (3) of Article 34”.
Further,
the learned Judge of Appeal also found that the contention that there is
nothing in Order 33 r 256 of the High Court Rules that prevented them from
making the application in question under that order was misplaced. Article 34,
being part and parcel of a statute, the Arbitration Act, should hold dominance
over Order 33 of the High Court Rules, which is subsidiary legislation. In any
case, so the learned Judge found, the purported application in question failed
to satisfy even the provisions of Order 33. Rule 256 of Order 33 makes it
imperative by the use of the word “shall”, for an applicant to “direct” his
application to the person whose decision is to be reviewed, as well as to all
other parties affected.
In
the instant case, the application, as already pointed out above, was one for
review of the arbitral award up until the stage of the applicant's Heads of
Argument when a u-turn was made in a vain endeavour to clothe it with a
semblance of one made in terms of Article 34 of the Model Law. Indeed, the
respondent avers that there is even an application before this court in case
no. 4120/10 seeking condonation for late filing of the review. I did not hear
the applicant to dispute this assertion. It goes without quarrel that a wrong
form for this application was adopted.
Even
assuming that the application were permissible in terms of Order 33 of the High
Court Rules it would still fail to scale the insurmountable difficulty
besetting it for flagrantly flouting provisions of Order 33. Rule 256 of Order
33 makes it imperative by the use of the word “shall” for an applicant to
“direct” the application to, inter alia,
the person whose decision is to be reviewed, viz the arbitrator. This omission
to cite the arbitrator is fatal to a review application. Applicant in casu did not cite the arbitrator. In
para 4.3 of its Answering Affidavit, applicant lamely tried to defend this
omission saying “citing the Arbitrator as a party to the proceedings is not a
rule cast in concrete. Such non-joinder is not fatal to the proceedings. In any
event the relief sought is against the respondent only”. This argument does not
hold water for it merely amounts to digging in the ashes.
Further,
a review application in casu would
also have been hamstrung by it being lodged outside the 8 week period permitted
by the rules. It also does not state shortly and clearly the grounds for
review.
In
the result, on the totality of the numerous fundamental irregularities alluded
to supra, I am satisfied that the
application was improperly brought and is ill-conceived. I have no option but
to dismiss it with no need to delve into the merits, with costs on the scale of
legal practitioner and client. It also behoves me to remark that I hope that Mr
Kwaramba will not charge his client
any fees regarding this aborted application.
Mbidzo, Muchadehama
& Makoni,
applicant's legal practitioners
Honey
& Blanckenberg,
respondent's legal practitioners
