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 Rule 227(3) in that when it was
filed, it did not contain a draft of the order sought.
2.
It offends against Rule 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 Rule 256, 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
Rule 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 the respondent was truthful in objecting.
I
am not persuaded that the 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 Rule
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 Rule 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 the 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 [Chapter 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” (p3), 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
paragraph 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
paragraph 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.”…,.
In
paragraph 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
paragraph 7.1, the 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 paragraph 8.2, the
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, counsel for the applicant 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)…,. 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 Rule 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.”…,.
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 award 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 Rule 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.
The
applicant in
casu
did not cite the arbitrator.
In
paragraph 4.3 of its answering affidavit, the 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 eight
(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 counsel for
the applicant will not charge his client any fees regarding this
aborted application.
