Opposed
Application
MATHONSI
J:
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 para 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 at p3, that;
“A
party which finds itself faced with an arbitral award it is
challenging should take advantage of the provisions of section 92E(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 section 92E(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, which I have
reproduced above, 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$38,851-00.
