This
is an application for registration of an arbitral award made by arbitrator N.M.
Tichiwangana on 6 February 2012 which award remains extant.
The
application is opposed by the respondent and the thrust of such opposition is
contained in paragraph 4 of the opposing affidavit of Peter Matemba which
reads;
“The
quantum of damages payable to the applicants is strongly disputed by the
respondent. The respondent failed to timely (sic)
submit its submissions for quantification of damages in issue. The award
referred to was only granted in default. Subsequently, the respondent filed an
application for rescission of default judgment before the arbitrator. The
application is still pending. In light of this, the present chamber
application is premature as the applicants were duly served with the
application for rescission of default judgment. Instead of responding to
the application for rescission of default judgment the applicants chose to
register to prematurely register the award (sic) which has the
potential of being adjusted if the application for rescission of default
judgment is successful.”
I
find myself having to repeat what I stated in Greenland v
Zimbabwe Community Health Intervention Research Project (Zichre)
HH93-13…, that -
“A
party which finds itself faced with an arbitral award it is challenging should
take advantage of the provisions of s92E(3) of the Labour Act [Cap 28:01] which empowers the Labour Court to make an
interim determination for the stay or suspension of an arbitral
award. Where the award has not been stayed or suspended in terms of
s92E(3) and remains extant, this court will, as a matter of principle, register
the award for enforcement unless there are grounds for not doing so as provided
for in Article 36 of the model law contained in the Arbitration Act [Cap 7:15].”
Article
36 of the Model Law provides that recognition or enforcement of an arbitral
award may only be refused at the request of the party against whom it is
invoked if that party shows the court proof that;
1.
A party to an arbitration agreement was under some incapacity or the agreement
was invalid under the law to which the parties subjected it to or under the law
of the country where the award is made.
2.
The party was not given proper notice of the appointment of an arbitrator or
the arbitral proceedings or was otherwise unable to present his case.
3.
The award deals with a dispute not contemplated or not falling within the terms
of reference to arbitration.
4.
The composition of the arbitral tribunal or the procedure was not in accordance
with the agreement of the parties or the law of the country where the
arbitration took place.
5.
The award has not yet become binding on the parties or has been set aside or suspended
by a court of law.
6.
The court finds that the subject matter of the dispute is not capable of
settlement by arbitration under the law of Zimbabwe or recognition or
enforcement will be contrary to the public policy of Zimbabwe.
The
grounds for opposition set out by the respondent…, are not covered by Article
36. It is myopic for the respondent to think that an application for rescission
of judgment submitted to the arbitrator, who clearly is functus officio and cannot reverse his own decision, can
prevent the registration of an arbitral award which is extant. The
respondent should have sought the suspension of the award.
There
is therefore no merit in the opposition. In result I make the following order,
that:
1.
The arbitral award of N.M. Tichiwangana dated 6 February 2012 is hereby
registered as an order of this court.
2. The respondent shall pay the applicants the
respective sums set out in that award totalling the sum of US$38,851=.
