MUTEMA J: 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 R 227(3) in that when it was filed,
it did not contain a draft of the order sought;
2. it offends
against R 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 R256, 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
R4C(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 respondent was truthful in objecting.
I am not persuaded that 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 R 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 R4 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 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, [Cap
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” (p 3), 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 para 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 para 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” (my emphasis).
In para 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 para 7.1 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 para 8.2 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, Mr Kwaramba
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) at pages 254 G-H and 255 A-C. 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 r 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” (my emphasis).
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 ward 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 r 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.
Applicant in
casu
did not cite the arbitrator.
In para 4.3 of its Answering Affidavit, 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 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 Mr Kwaramba
will not charge his client any fees regarding this aborted
application.
Mbidzo, Muchadehama & Makoni,
applicant's legal practitioners
Honey & Blanckenberg,
respondent's legal practitioners
