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 p 2.
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 s92E(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) 206 E 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 s92E(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 s92E(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 s92E(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
