BERE
J: I am seized with this
matter in terms of section 98 (14) and (15) of the Labour Act which requires
that an arbitral award be registered either in this court or the Magistrate's
court to pave way for its execution.
It is supposed to be a fairly simple application as this court, by operation of
provisions of the Labour Act itself has no jurisdiction to be a court of first
instance in labour related matters where the labour court has exclusive
jurisdiction, and neither does it qualify to be an appeal court.
So much has been thrown in the arguments for and against the registration of
the arbitral award granted by the arbitrator in this case on 20 December 2011.
Let me state from the outset that it is not a correct
appreciation or exposition of the law that an appeal or an application for
review of an arbitral award to the Labour Court suspends the decision of the
arbitrator. If such suspension or stay is desired an application for stay of
execution of the decision of the arbitrator must be filed in the Labour Court
in terms of section 92 E (3) thereof and once that indulgence has been granted
by that court, that order from the Labour court must then be produced in the
High Court to prevent registration of the arbitral award. The process of
suspending execution generally falls outside the province of the High Court
because this court does not enjoy original jurisdiction in labour related
matters. See the provisions of section 89 (1) of the Labour Act as amended by
the Labour Act 17 of 2002 which created the current section 89 (6) of the
Labour Act which ousted the jurisdiction of this court in labour related matters,
particularly those where the Labour court has jurisdiction. See also the case
of Thomas Tuso v City of Harare HH 1-2004 at page 3 and Martin
Sibanda and Godfrey Moyo vs Benson Chinemhute No. HH 131-2004.
However there are occasions when the High Court may be
called upon to set aside an arbitral award. This would arise in those
situations contemplated by the Article 34 of the Arbitration Act [7:15]. Other
than invoking the provision of Article 34 the High Court may also refuse to
recognise or enforce an arbitral award in terms of Article 36 of the
Arbitration Act (supra).
Having said this I will now deal with the points in
limine raised by the respondents in this case.
The point has been made that one Clemence Mudzengerere who
deposed to the affidavit in support of the chamber application of the
registration for the arbitral award has no locus standi to represent
the employees concerned.
It is a pity that this issue has had to consume
considerable time for the court in argument by both counsels.
It is common knowledge that a party who purports to have
the power to represent others in litigation must have his or her authority
properly defined.
The court was told among other things that the authority of
Mudzengerere was in terms of Rule 2(a) of the High Court Rules, which rule
incidentally does not exist. I do not want to read anything beyond a genuine
mistake on the party of the Applicant's counsel. I have total faith and trust
in all the legal practitioners who appear before me.
In his own papers filed in this Court it is clear that
Mudzengerere's employment was terminated by mutual arrangement on 11 August
2011. It was therefore incumbent upon him to produce convincing evidence that
despite his mutual termination of employment he remained the chairperson of the
workers committees of the three respondent companies.
This could have been done by the presentation of either a
special power of attorney or an affidavit of collegiality signed by those whom
he purports to represent. No affidavit of collegiality was filed and the
nearest the deponent did was to file what was supposed to be a special power of
attorney.
The authenticity of the special power of attorney was put
into question by the respondent's representatives. In his answering affidavit (
not the founding affidavit) Mudzengerere attached an undated document headed
“Special Power of Attorney”. Not only was the document undated but several
employees had not signed that document.
I think it is overstretching the whole issue for
applicant's counsel to submit that despite the apparent shortcomings in that
document there had been substantial compliance with the law warranting
condonation by this court. With due deference to counsel, that is a lazy way
out of the predicament he found himself in. I hold a completely different view.
There was simply nothing tabled before me to demonstrate that Mudzengerere was
duly authorized to represent the applicants in this application.
If Mudzengerere had no authority to represent the
applicants, it must logically follow that he was starved of locus standi
to represent anyone. There is therefore sufficient persuation from the
respondent's counsel that there is no application worth considering before me.
My approach would certainly have been different if the
applicants in this matter had been properly cited as I detected some
insatiable appetite by the respondent's counsel to drag me into what is clearly
an appeal in this matter when it is abundantly clear that this court has no
such jurisdiction.
On costs, there is need for the court to discourage
individuals from indulging in spurious or vexatious litigation.
Mudzengerere had all the opportunity to properly justify
his status as a litigant. He has not taken hid of the flashing signs before him
and for that he must bear the brand for costs, though on the ordinary scale.
Accordingly the application for registration is dismissed
with costs on the ordinary scale.
Kanyenze and Associates,
applicant's legal practitioners
Coglan
Welsh and Guest, respondent's legal practitioners
