MANGOTA J: The present application which the applicant
filed with the court on 9 June, 2014 was referred to me for my attention.
When I went through the application, I noted that the event which the applicant
wanted arrested had already taken place. I accordingly endorsed on the face of
the application the words “the application has been overtaken by events and
hearing it would not save any purpose”. The endorsement which I made on
the morning of 11 June, 2014 was as a result of what the applicant had stated
in its founding affidavit. It said:
“The 3rd respondent has since attached
applicant's property and removal has been set for the 10th of
June, 2014” (emphasis added)
Following this seemingly simple disposal of the matter
which had been placed before me, the applicant filed a supplementary affidavit
advising the court that the first and second respondents' representatives
agreed that the removal of the attached goods be suspended pending the
determination of the applicant's urgent chamber application or a mutual
resolution of the issues which existed between the parties. Paragraphs 2
and 3 of the applicant's supplementary affidavit are pertinent to the court's
reconsidered opinion to hear the application. The paragraphs read:
“2. Considering execution was scheduled for the 10th
of May, 2014 the application filed on the 9th of June, 2014 only
appeared before the judge on the 11th after the date scheduled for
the removal hence the Honourable Justice MANGOTA noted that the application had
been superseded by events consequently applicant responded in a letter dated 11
June 2014 attached as Annexure A and herein furnishes further information to
paragraph 14 of the founding affidavit;
3. Though attachment was scheduled for the 10th
of June 2014, the applicant's legal practitioners and the 1st and 2nd
respondents' representatives Zimbabwe Security Guards Union have agreed that
the said removal be suspended until the 13th of June, 2014 pending
either a determination on the urgent chamber application or a mutual resolution
of issues between the parties”.
The supplementary affidavit which the applicant filed with
the court and served on the respondents persuaded the court to entertain the
application which was set down for hearing at 10 am of Friday, 13 June,
2014. On the mentioned date and time, the parties duly appeared and
counsel for the first and second respondents requested that he be given time
within which he would receive instructions, study the application and do
justice to the respondents' case. The matter was, by consent of all the parties
who were then present, postponed for hearing at 9:00 am of Wednesday 18 June,
2014. The postponement was subject to the fact that the parties would
allow the status quo to remain until the hearing and the determination
of the application.
The first and second respondents filed their opposing
papers on Tuesday 17 June, 2014. The third, fourth and fifth respondents
who were cited in their respective official capacities as the messenger of
court, the Clerk of Magistrates' Civil Court and the Provincial Magistrate did
not appear in person or through legal representation. The court remains
of the view that all the three will abide by the decision which will have been
reached.
The papers which are filed of record show that the
applicant and the first two respondents were embroiled in two labour disputes
both of which ended up with Honourable Arbitrators R.E Nhiwatiwa and P. Shawatu
for arbitration. Arbitrator Shawatu's award was issued on 30 January, 2013 and
Arbitrator Nhiwatiwa's award was issued on 17 April, 2013. Both arbitral awards
were issued in favour of the first and second respondents who, in the first
case, raised the complaint of under - payment of wages, non-payment of
overtime, leave pay and gratuity. In the second case, the two respondents
raised the complaint of non-payment of wages and terminal benefits.
Armed with the two arbitral awards, the first and second
respondents approached the fourth and fifth respondents with a view to having
the arbitral award of 17 April, 2013 registered and enforced against the
applicant. The applicant was not aware of the four respondents' move
until on 5 June, 2014 when the third respondent called at the premises of the
applicant on whom he served notice of attachment of the applicant's property
and setting 10 June as the date of removal of the same. The gravamen of
the applicant's complaint was, or is, that the arbitral award of 17 April, 2013
was not registered with the Magistrate's Court and service upon it of
the warrant of execution as well as the notice of attachment and removal of its
property came to it as a surprise as no process was served upon it for the
registration of the arbitral award (emphasis added). It stated that the
removal and sale of its property based on an unregistered arbitral award would
visit it with untold hardship as its operations would be5r crippled.
The first and second respondents filed their opposing
papers to the application. They raised one preliminary matter after which
they proceeded to address the court on the substantive aspects of the
application. The matter which the respondents raised in limine
was that the deponent to the applicant's founding affidavit did not have the
applicant's authority to depose to the same. That matter was, however, disposed
of when, on 18 June 2014, the applicant filed with the court the resolution
which authorised the deponent to represent the applicant in legal proceedings
which challenge the arbitral awards involving the applicant and the two
respondents.
On the substance of the application, the respondents stated
that the manner in which the parties were cited was rather tardy and somewhat
vexatious. They contended that the relief which the applicant was or is
seeking had very little or no bearing on the third, fourth and fifth
respondents. The applicant's position on the matter was that the conduct
of the fourth and fifth respondents created the unpalatable situation in which
the parties were currently labouring under. It submitted that the directive
which the fifth respondent displayed at the Magistrates' Court stated
that any party with an arbitral award who intends to register it with the Magistrate's
Court as provided for in terms of the Labour Act [Cap 28:01] should submit
such award and a draft warrant of execution which when issued
instructs the Messenger of Court to execute (emphasis added). The fourth
respondent, the applicant claimed, issued the warrant of execution in
respect of the arbitral award which had been made in favour of the first and
second respondents on 17 April, 2013. It is this issued warrant of
execution which the third respondent based his action upon when he proceeded to
attach the applicant's property, the applicant said. It, accordingly, prayed
the court to declare that the directive which the fifth respondent issued was
or is unconstitutional. The directive, it said, violated its
constitutional right to administrative justice as contained in s 68 of the
constitution. It stated further that the directive violated the rules of
natural justice which are embodied in the audi alteram partem rule.
Looked at from the abovementioned perspective, the
applicant cannot be faulted when it cited the third, fourth and fifth
respondents as it did. The fourth and fifth respondents are the major
cause of its concern. The third respondent, in the court's view, acted
pursuant to the directive of the fifth respondent which directive the fourth
respondent translated into what may be regarded as an order of the Magistrate's
Court through which order the arbitral award of 17 April, 2013 was apparently
registered for purposes of having it enforced.
The first and second respondents spent a great deal of
their time lecturing the court on the obvious. They centred most of their
submissions on wanting to convince the court of this simple fact which is that
the Labour Court and arbitrators who are appointed in terms of the Arbitration
Act [Cap 7:15] have inherent and exclusive jurisdiction in all labour
matters. They submitted that the directive which the fifth respondent
issued and displayed at the Magistrate's Court was or is in sinc with s 92 B
(3) of the Labour Act, [Cap 28:01]. They argued and stated that,
in terms of the wording of the mentioned section, registration of an arbitral
award was an event which was completed by the submission of the award to a
court which has jurisdiction over the registration of the award. They, in this regard,
referred the court to three case authorities which they said supported the view
which they held and hold of the matter. The cases in question were those
of:
(a) Tapera
and 17 othersv Field Spark Investments HH103/13
(b) Brian Muneka
& 5 othersv Manica Bus Company, HH30/13 – and
(c) Vasco
Olympio& 4 others v Shomet Industrial Development, HH191/12
All the abovementioned three cases involved registration of
arbitral awards for purposes of having them enforced. A reading of the cases in
question shows that the arbitral award winning parties did not just submit
their arbitral awards to the court(s) which had jurisdiction to register the
awards. The parties went by way of application and serving their
respective applications on the respondents when they sought to have the awards
which had been made in their favour registered for purposes of enforcing
them. That, in the court's considered view, is the correct position of
the law on the matter. The registration of a Labour Court order or an
arbitral award is not an event but a process.
The legislature, it hardly requires any emphasis, conferred
on the Labour Court and arbitrators who are appointed in terms of the
Arbitration Act inherent and exclusive jurisdiction to hear all labour disputes
as well as to make orders, decisions and determinations on the same. The
legislature, however, deprived the Labour Court, arbitrators and such like
tribunals which are set up to hear and determine labour matters the power to
enforce their judgments, orders, determinations or decisions. It reposed such
powers of enforcement in the magistrates' court or the High Court depending on
the monetary value of the order or award which is intended to be registered for
purposes of enforcement. The questions which must be asked and answered in
respect of this part of the case are:
(i)
why should the order or the award be registered – and
(ii)
what process must be involved in the registration of the order or award.
It goes without saying that the
Labour Court or the arbitrator's award is, by the
process of registration, turned into an order of the court
in which the order or award is being, or has been, registered. The registration
exercise converts the Labour Court order, award, decision or determination into
a civil judgment of the court in which such order, award decision or
determination has been registered. The question which begs the answer at this
stage of the proceedings is that which centres on how the substantively made
order of the Labour Court or the arbitral award converted into a civil judgment
of the court in which the order or award is being, or has been, registered.
There are two known processes through which a court is clothed with the power
to make an order. The processes in question may be by way of action or application
(emphasis added). Litigants who want to register orders or awards which the
Labour Court or arbitrators grant to them do, invariably, employ the
application mode of having their orders or awards registered with the magistrates'
court or the High Court. The application procedure which they adopt places a
duty upon them to notify the other party of their intention to register and
enforce the order which had been awarded in their favour by the court a quo.
The aggrieved party has every right to acquiesce to, or to oppose, the
registration of the Labour Court order or the arbitral award. However, as soon
as the order or award has been registered with the relevant court, the order or
award assumes the meaning and content of a civil judgment of the court in which
the award or order has been registered. Once it has taken that substantive
content the civil judgment becomes executable.
It is a cardinal rule of our procedure and practice that parties who bring
matters to court or to the arbitrator must be allowed to participate at every
stage of the proceedings which are before that court or arbitrator. They must
be heard when the matter is set down for hearing, when judgment is pronounced
for or against them and when, as in casu, the award winning party
moves the relevant court in the form of an application to have the award which
was issued in its favour registered for purposes of having it enforced. The
word order which appears in s 92 B(3) of the Labour Act does contemplate
the fact that the registration of the order or award turns it into an order of
the court in which the order or award is registered.
The directive which the fifth respondent issued and displayed at his court
does, with respect, set a dangerous precedent which cannot be allowed to stand.
The directive gives the distinct impression that courts allow parties who
approach them in search of justice to ambush each other as persons who are
playing a game of cards are, more often than not, inclined to do. It runs
contrary to some long established principles of natural justice and rules of
courts of all levels and it, in the process, places the due administration of
justice into very serious dispute. The fifth respondent issued it in the hope,
it is the court's view, that it would assist in the immediate disposal of such
cases as the present one which is labour related. The directive, however,
remains unclear as regards the designation of the court official who is clothed
with the authority to issue or register the arbitral award. It, if anything,
raises more questions than it has answers to them. Questions which immediately
come to the fore on a reading of the directive are such as do centre on:
(a) which
official between the magistrate and the clerk of court has the power to
register the award;
(b) what papers
accompany the arbitral award when it is submitted for registration
(c) to which
court official are the award and a draft warrant of execution submitted
(d) how does the
person who submitted the papers get to know that his or her or its or their
order or award has been registered with the court
(e) does he or
she or it or they keep on checking upon the progress or otherwise of the
registration process and, more importantly,
(f) how are
the views of the party who is adversely affected by the effects of the
directive get to be known as well as registered with the court.
The last mentioned of the six
questions which have been posed in the foregoing
paragraphs constitutes the substance of the present
application. The applicant submitted, and correctly so, that it was not heard
when the event which related to the apparent registration of the award was
effected in terms of the fifth respondent's directive. It argued that the writ
of execution which resulted from the directive was improperly issued and it
cannot, therefore, be used to attach and remove its property, let alone have
such sold under the hammer. It is the court's considered view that the
applicant was within its rights when it argued as it did and questioned the
manner in which the writ of execution had come into existence.
The respondents, on their part, could not assert with any degree of certainty
that the arbitral award which was made in their favour on 17 April, 2013 was
registered with the magistrates' court.
They did not even say that they submitted the arbitral award and a draft
warrant of execution to the magistrates' court in terms of the fifth
respondent's directive. They did not produce any paper which showed that
registration of the award took place. They, however, remained of the view that
registration took place. Their contention in this mentioned regard runs
contrary to the case authorities which they cited where it was observed that registration
is not an event but a process which is instituted by way of application and on
notice to the other party.
The court cannot, under the circumstances of this case, state that the writ of
execution was properly issued. It cannot say so when it does not know if the
arbitral award was registered and, if it was, the court official through whom
it was registered. The probabilities of this case are that, when the fifth
respondent issued the directive which lies at the centre of these proceedings
his intention was to shed off from himself all responsibility which relates to
the registration of Labour Court's or arbitrators' orders, awards decisions
and/or determinations onto the clerk of court. However, the magistrates' court
(civil) rules do not clothes that official with the power to register such
awards, orders, decisions and/or determinations. Registration of these are the
preserve of a magistrate or a judge of the High Court who is enjoined to
entertain the application on notice to the other party.
The applicant's property was attached on 5 June, 2014 and
it was due for removal on 10 June, 2014. The applicant filed its application
with the court on 9 June, 2014. The applicant, on the mentioned basis, appears
to have treated its case with some urgency. Its case is, however, among many
cases which the court would, all things being equal, refuse to entertain. The
applicant was aware as far back as 30 January, and 17 April, 2013 that the
first and second respondents would most likely want to move the courts to
enforce what had been awarded to them. It did nothing from the mentioned period
todate and it only approached the court when its interests were under threat.
This is not the kind of urgency which is contemplated in the rules of this
court. On that basis, therefore, the application would have failed.
In the circumstances of this case, however, the application is allowed to
succeed on the basis that the first and second respondents, acting with and
through, the unconstitutional directive of the fourth and fifth respondents did
not register the award which they properly obtained and wanted to enforce. They
cannot enforce an unregistered award. The applicant did well to refer the
matter which relates to the apparent registration of the award through the
fifth respondent's directive to court for review. The court remains unceased
with that review. It is, however, its considered opinion that the applicant's
prospects of success on review are pretty high.
The court has considered all the circumstances of this case. The applicant, in
the court's view, proved its case on a balance of probabilities to the
satisfaction of the court. The court, accordingly, orders as follows:
(a) that the
application be and is hereby sustained.
(b) that each party
bears its own costs.
Muvingi & Mugadza, appellant's legal
practitioners
Tamuka
Moyo Attorneys, respondent's legal practitioners
