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HH93-13 - SHEILA GREENLAND vs ZIMBABWE COMMUNITY HEALTH INTERVENTION RESEARCH PROJECT (ZICHIRE)

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Labour Law-viz arbitration re registration of an arbitral award.
Procedural Law-viz final orders re the final and conclusive rule iro default judgement.
Labour Law-viz arbitration re registration of arbitral award iro Article 35 of the First Schedule to the Arbitration Act [Chapter 7:15].
Company Law-viz legal personality re related parties.
Procedural Law-viz rules of evidence re findings of fact iro conduct resulting in estoppel.
Procedural Law-viz rules of evidence findings of fact iro the doctrine of estoppel.
Procedural Law-viz final orders re the final and conclusive rule iro arbitral awards.
Procedural Law-viz lis alibi pendens re arbitral award registration proceedings.
Procedural Law-viz lis pendens re arbitral award registration proceedings.
Procedural Law-viz pending litigation re arbitral award registration proceedings.
Procedural Law-viz interim interdict re stay of execution iro labour proceedings.
Procedural Law-viz provisional order re stay of execution iro labour proceedings.
Procedural Law-viz interim interdict pendente lite re registration of an arbitral award iro section 92 of the Labour Act [Chapter 28:01].
Procedural Law-viz provisional order pendente lite re arbitral award registration iro section 92E of the Labour Act [Chapter 28:01].
Procedural Law-viz rules of construction re vague provisions iro intent of the legislature.
Procedural Law-viz rules of interpretation re ambiguous provisions iro legislative intent.
Procedural Law-viz the final and conclusive rule re arbitral award iro section 92 of the Labour Act [Chapter 28:01].
Procedural Law-viz the final and conclusive rule re arbitral award iro Article 36 of the Model Law, Arbitration Act [Chapter 7:15].
Procedural Law-viz costs re punitive order of costs.
Procedural Law-viz costs re punitive costs.
Procedural Law-viz rules of evidence re documentary evidence iro the best evidence rule.
Legal Practitioners-viz dominus litis re the principle of finality to litigation.
Procedural Law-viz final orders re the principle of finality in litigation.

Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court

Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner....,.

I have already stated that grounds exist in this matter, in light of the nature of the opposition, for an award of punitive costs against the respondent. A message must be sent to litigants who elect to remain rooted in kindergarten that the courts will not allow themselves to be drawn back to that domain.

Cause of Action and Draft Orders re: Abuse of Process, Vexatious or Putative Claim, De Minimis and Uberrima Fides Rules

Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner....,.

I have already stated that grounds exist in this matter, in light of the nature of the opposition, for an award of punitive costs against the respondent. A message must be sent to litigants who elect to remain rooted in kindergarten that the courts will not allow themselves to be drawn back to that domain.

Final Orders re: Writ of Execution, Enforcement of Judgments iro Labour Proceedings

Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Legal Personality re: Group Structures, Related Parties and the Arm's Length Principle

Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

Founding Affidavits re: Approach and the Rule that a Case Stands or Falls on Founding Affidavit

Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

Findings of Fact re: Assessment of Evidence & Inferences iro Evidentiary Concessions and Conduct Resulting in Estoppel


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

Documentary Evidence, Certification, Commissioning, Authentication and the Best Evidence Rule re: Approach


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

Final Orders re: Finality in Litigation iro Approach, Decree of Perpetual Silence, Sitting on Judgment & Superannuation


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety: see Ndlovu v Higher Learning Centre HB86-10…,.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

Rules of Construction or Interpretation re: Recognition, Ousting, Alteration and Modification of Common Law


In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

Interim Interdict Pendente Lite and Stay of Execution re: Labour Proceedings


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, which empowers the Labour Court to make any interim determination for the stay or suspension of an arbitral award.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Suspension of Orders Pending Appeal iro Labour Proceedings


In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Suspension of Orders Pending Appeal iro Quasi Judicial


In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

Lis Alibi Pendens or Pending Litigation re: Administrative and Quasi Judicial Proceedings


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety: see Ndlovu v Higher Learning Centre HB86-10…,.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

I take the view, that, even if the respondent had sought to rely on the review application filed in the Labour Court, which it has not done, the applicant would still be entitled to have the award registered because it remains effectual and in force. It has not been set aside or suspended pending the hearing of the review application.

In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

While the Labour Act is silent on the effect of a review application, it would be absurd to formulate a construction that would allow litigants to circumvent the provisions of section 92E(2) of the Labour Act by couching their challenge of an arbitral award to the Labour Court as a review instead of an appeal.

Clearly, such a review application would not suspend the award.

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, which empowers the Labour Court to make any interim determination for the stay or suspension of an arbitral award.

Lis Alibi Pendens or Pending Litigation re: Labour Proceedings


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety: see Ndlovu v Higher Learning Centre HB86-10…,.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

I take the view, that, even if the respondent had sought to rely on the review application filed in the Labour Court, which it has not done, the applicant would still be entitled to have the award registered because it remains effectual and in force. It has not been set aside or suspended pending the hearing of the review application.

In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

While the Labour Act is silent on the effect of a review application, it would be absurd to formulate a construction that would allow litigants to circumvent the provisions of section 92E(2) of the Labour Act by couching their challenge of an arbitral award to the Labour Court as a review instead of an appeal.

Clearly, such a review application would not suspend the award.

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, which empowers the Labour Court to make any interim determination for the stay or suspension of an arbitral award.

Review re: Suspension of Orders Pending Review re: Labour Proceedings


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety: see Ndlovu v Higher Learning Centre HB86-10…,.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

I take the view, that, even if the respondent had sought to rely on the review application filed in the Labour Court, which it has not done, the applicant would still be entitled to have the award registered because it remains effectual and in force. It has not been set aside or suspended pending the hearing of the review application.

In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

While the Labour Act is silent on the effect of a review application, it would be absurd to formulate a construction that would allow litigants to circumvent the provisions of section 92E(2) of the Labour Act by couching their challenge of an arbitral award to the Labour Court as a review instead of an appeal.

Clearly, such a review application would not suspend the award.

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, which empowers the Labour Court to make any interim determination for the stay or suspension of an arbitral award.

Rules of Construction or Interpretation re: Ambiguous, Undefined Provisions, Legislative Intent & Noscitur a Sociis Rule


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety: see Ndlovu v Higher Learning Centre HB86-10…,.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

I take the view, that, even if the respondent had sought to rely on the review application filed in the Labour Court, which it has not done, the applicant would still be entitled to have the award registered because it remains effectual and in force. It has not been set aside or suspended pending the hearing of the review application.

In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

While the Labour Act is silent on the effect of a review application, it would be absurd to formulate a construction that would allow litigants to circumvent the provisions of section 92E(2) of the Labour Act by couching their challenge of an arbitral award to the Labour Court as a review instead of an appeal.

Clearly, such a review application would not suspend the award.

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, which empowers the Labour Court to make any interim determination for the stay or suspension of an arbitral award.

Review re: Suspension of Orders Pending Review re: Administrative and Quasi Judicial Proceedings


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety: see Ndlovu v Higher Learning Centre HB86-10…,.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

I take the view, that, even if the respondent had sought to rely on the review application filed in the Labour Court, which it has not done, the applicant would still be entitled to have the award registered because it remains effectual and in force. It has not been set aside or suspended pending the hearing of the review application.

In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

While the Labour Act is silent on the effect of a review application, it would be absurd to formulate a construction that would allow litigants to circumvent the provisions of section 92E(2) of the Labour Act by couching their challenge of an arbitral award to the Labour Court as a review instead of an appeal.

Clearly, such a review application would not suspend the award.

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, which empowers the Labour Court to make any interim determination for the stay or suspension of an arbitral award.

Final Orders re: Final and Conclusive Rule iro Default Judgment


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety: see Ndlovu v Higher Learning Centre HB86-10…,.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

I take the view, that, even if the respondent had sought to rely on the review application filed in the Labour Court, which it has not done, the applicant would still be entitled to have the award registered because it remains effectual and in force. It has not been set aside or suspended pending the hearing of the review application.

In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

While the Labour Act is silent on the effect of a review application, it would be absurd to formulate a construction that would allow litigants to circumvent the provisions of section 92E(2) of the Labour Act by couching their challenge of an arbitral award to the Labour Court as a review instead of an appeal.

Clearly, such a review application would not suspend the award.

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, which empowers the Labour Court to make any 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) of the Labour Act, 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 [Chapter 7:15].

In casu, none of the grounds for refusing recognition or enforcement of the award exist. It must therefore be registered....,.

1. The arbitral award of Hon D. Mudzengi, dated 7 June 2011, in the matter between the applicant and the respondent, be and is hereby registered as an order of this court.

2. The respondent is hereby ordered to pay the applicant the sum of US$261,448=14 being salary and benefits arrears.

Arbitration re: Approach, Proceedings Before an Arbitrator and Registration and Execution of Arbitral Awards


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park, Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration, but, the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant, unconditionally, upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition, stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that, there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact, that, the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of hairs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare.

Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety: see Ndlovu v Higher Learning Centre HB86-10…,.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

I take the view, that, even if the respondent had sought to rely on the review application filed in the Labour Court, which it has not done, the applicant would still be entitled to have the award registered because it remains effectual and in force. It has not been set aside or suspended pending the hearing of the review application.

In enacting section 92E(2) of the Labour Act [Chapter 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP…, in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H)…, where she stated:

“In my view, the amendment to the law, in 2005, to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

While the Labour Act is silent on the effect of a review application, it would be absurd to formulate a construction that would allow litigants to circumvent the provisions of section 92E(2) of the Labour Act by couching their challenge of an arbitral award to the Labour Court as a review instead of an appeal.

Clearly, such a review application would not suspend the award.

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, which empowers the Labour Court to make any 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) of the Labour Act, 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 [Chapter 7:15].

In casu, none of the grounds for refusing recognition or enforcement of the award exist. It must therefore be registered.

I have already stated that grounds exist in this matter, in light of the nature of the opposition, for an award of punitive costs against the respondent. A message must be sent to litigants who elect to remain rooted in kindergarten that the courts will not allow themselves to be drawn back to that domain.

In the result, it is ordered that:

1. The arbitral award of Hon D. Mudzengi, dated 7 June 2011, in the matter between the applicant and the respondent, be and is hereby registered as an order of this court.

2. The respondent is hereby ordered to pay the applicant the sum of US$261,448=14 being salary and benefits arrears.

3. The respondent shall bear the costs of this application on a legal practitioner and client scale.

Costs re: Punitive Order of Costs or Punitive Costs


Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law, and, in the process, succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011, than to say that it is trifling with the court in a regrettable manner....,.

I have already stated that grounds exist in this matter, in light of the nature of the opposition, for an award of punitive costs against the respondent. A message must be sent to litigants who elect to remain rooted in kindergarten that the courts will not allow themselves to be drawn back to that domain....,.

1....,.

2....,.

3. The respondent shall bear the costs of this application on a legal practitioner and client scale.

MATHONSI J: Litigants in this country are fast developing this unacceptable and indeed detestful habit of trifling with courts of law and in the process succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011 than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and from the papers before, me she is still so employed, as a project co-ordinator/manager.

The respondent is a non-governmental organisation running two health related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park Harare.

A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration but the respondent did not attend the arbitration proceedings.

The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same” to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448-14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant unconditionally upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Cap 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon the respondent filed opposition stating in the opposing affidavit of Pesanai Chatikobo, the project co-ordinator, that there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings.

The respondent relied on the fact that the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at p1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh.

Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh.

The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of heirs to separate the respondent on the basis of its 2 addresses.

What is clear is that the respondent is piloting 2 projects from 2 different addresses. All the correspondence between the parties including the employment contract record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park Harare. Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare.

For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh and the application also did the same, is a trifle and a complete waste of the court's time.

Indeed it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety. Ndlovu v Higher Learning Centre HB86/10 at p2.

The purported review application made by the respondent to the Labour Court, which strangely remains unresolved almost two years after it was filed, cannot be used as an instrument to block the registration of the award.

In any event, the respondent has not argued that it should.

I take the view that even if the respondent had sought to rely on the review application filed in the Labour Court, which it has not done, the applicant would still be entitled to have the award registered because it remains effectual and in force. It has not been set aside or suspended pending the hearing of the review application.

In enacting section 92E(2) of the Labour Act [Cap 28:01], which provides that an arbitral award shall not be suspended by the noting of an appeal, the legislature intended that beneficiaries of such awards should be able to enforce them regardless of an appeal.

I agree with the sentiments of MAKARAU JP (as she then was) in DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) 206E where she stated:

“In my view, the amendment to the law in 2005 to provide that appeals to the Labour Court would not suspend the decision appealed against was clearly meant to vary the common law position that was prevailing prior to the amendment.”

While the Act is silent on the effect of a review application, it would be absurd to formulate a construction that would allow litigants to circumvent the provisions of section 92E(2) by couching their challenge of an arbitral award to the Labour Court as a review instead of an appeal.

Clearly, such a review application would not suspend the award.

A party which finds itself faced with an arbitral award it is challenging should take advantage of the provisions of section 92E(3) which empowers the Labour Court to make any 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].

In casu, none of the grounds for refusing recognition or enforcement of the award exist. It must therefore be registered.

I have already stated that grounds exist in this matter in light of the nature of the opposition for an award of punitive costs against the respondent. A message must be sent to litigants who elect to remain rooted in kindergarten that the courts will not allow themselves to be drawn back to that domain.

In the result it is ordered that:

1. The arbitral award of Hon D Mudzengi dated 7 June 2011 in the matter between the applicant and the respondent be and is hereby registered as an order of this court.

2. The respondent is hereby ordered to pay the applicant the sum of US$261,448-14 being salary and benefits arrears.

3. The respondent shall bear the costs of this application on a legal practitioners and client scale.



Kantor & Immerman, applicant's legal practitioners

Ngarava, Moyo Chikono, respondent's legal practitioners

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