Lawyering,
especially for young and upcoming legal practitioners, is a very
exciting, satisfying and indeed adrenalin-pumping prospect as it
helps the lawyer achieve the childhood dreams they had after many
bitter years of travail at University. It can however be a
nightmarish and disconcerting undertaking for those unable to quickly
understand the problem faced by a client, know where to find the law
under which the problem falls and to make the right choice of the
course of action to take in pursuit of a remedy.
The
applicant has gone knocking at the door of an arbitrator and finding
no joy, it has been to the Labour Court where it was rebuffed and it
has now come here with a humdinger of an application for “relief in
the form of a declaratory order and a mandamus” against the
arbitrator.
Very
high sounding and involved terminology but in aid of what really? A
simple remedy has always been sitting and awaiting the applicant in
Article 34 of the Model Law in the Arbitration Act [Chapter 7:15].
The
applicant is a local government authority constituted in terms of the
Urban Councils Act [Chapter 29:15]. It used to employ the 17 former
employees who are cited, interestingly, only as “Dickson Mukombwe
and 16 others.” A labour dispute between the applicant and the
employees could not be resolved through conciliation. It was referred
to the first respondent, a labour arbitrator appointed in terms of
the Labour Act [Chapter 28:01].
The
second respondent set the matter down for arbitration on 22 July 2014
but only the employees attended while the applicant defaulted. The
applicant says the notice was not brought to its attention. For some
unexplained reason the arbitrator did not adjudicate on the matter on
that date, although the arbitrator was later to claim that the
arbitration hearing proceeded in terms of Article 25(c) of the Model
Law. What is common cause though is that the employees only applied
for “default judgment” much later, on 22 October 2014, and the
arbitrator obliged by an award issued on 3 November 2014 in terms of
which she directed the applicant to pay backpay and “dirt
allowances” to the employees in the sum of $41,443=90.
The
applicant then commenced the laborious process of having the arbitral
award set aside and made all the wrong choices. On 11 November 2014,
the applicant filed an application for rescission of judgment before
the arbitrator on the basis that it was not in willful default on 22
July 2014, the set down date, and that it had prospects of success on
the merits. The arbitrator did not set the matter down for hearing,
neither did she entertain the parties. Instead, she addressed a
letter to the applicant on 9 February 2015 in the following:
“RE:
Application For Rescission of Arbitral Award in the matter: Dickson
Mukombwe and 16 Others v Victoria Falls Municipality
The
above matter refers.
The
office is in receipt of an application for rescission of the arbitral
award in the above mentioned matter. However, the arbitrator, after
issuing an award, ceases to have any authority to deal with such
matter unless it is remitted back by a higher court. The arbitrator
can only make a correction on errors in computation, clerical or
typographic errors, see Article 33 of the Arbitration Act. Appeals,
reviews and rescissions lie with the Labour Court or the High Court
as the case may be. The application has therefore been lodged with
the wrong office. Applicant is advised to approach the Labour Court.”
The
danger with the court or a tribunal rendering legal advice is that it
may give completely wrong advice which the litigant may then take as
a statement of the law and act upon it to his detriment. Of course,
lawyers have always been reluctant to render free advice.
The
arbitrator may not have been entirely wrong in her conclusion…,
given that an arbitrator ordinarily does not give default judgment
and would therefore be unable to rescind his or her own judgment. It
was the advice that the applicant should approach the Labour Court
which was unfortunate.
Although
the applicant was of the view that the arbitrator had capacity to
deal with the application and stated as much in a letter from its
legal practitioners, Dube
and Company,
dated 16 February 2015, it still lodged an application for rescission
of judgment at the Labour Court.
That
court was unmoved.
By
judgment delivered on 10 June 2015, the court, per KABASA J,
dismissed the application on the basis that the Labour court, as a
creature of statute, could only rescind its own judgment, and not
that of an arbitrator, in terms of section 92C(1)(a) of the Act.
The
applicant was shattered. Crest fallen, it then launched this
application seeking an order declaring unlawful the decision of the
arbitrator to decline jurisdiction and directing her to determine the
rescission of “the default arbitral award” as provided for in
section 98(9) as read with section 92C(1)(a) of the Labour Act
[Chapter 28:01].
Talk
of going round and round in circles with no solution in sight.
So
all that the applicant requires is for the arbitrator to hear its
application for rescission and decide whether to grant it or not.
Assuming she grants it, she would presumably start hearing the merits
of the dispute, and, hopefully, sooner than the after life, she would
resolve the dispute between the parties. Barring appeals and reviews
perhaps the matter will be put to rest.
There
is no provision in the Labour Act providing for the grant of default
judgment by an arbitrator. The applicant has inferred such power from
the provisions of section 98(9) of the Labour Act [Chapter 28:01]
which provides:
“In
hearing and determining any dispute an arbitrator shall have the same
powers as the Labour Court.”
It
has been submitted that because section 92C(1)(a) of the Labour Act
empowers the Labour Court to rescind its own default judgment, then
it must follow that the arbitrator has such power as well. In terms
of section 92C(1)(a) of the Labour Act [Chapter 28:01]:
“Subject
to this section, the Labour Court may, on application, rescind or
vary any determination or order which it made in the absence of the
party against whom it was made.”
The
powers of the Labour Court are provided for in section 89 of the
Labour Act [Chapter 28:01] and are;
(i)
Hearing and determining applications and appeals in terms of the Act
or any other enactment;
(ii)
Hearing matters referred by the Minister in terms of the Act;
(iii)
Referring a dispute to a labour officer;
(iv)
Appointment of an arbitrator from the panel of arbitrators; and
(v)
Exercise the same review powers as the High Court in respect of
Labour matters.
The
grant of default judgment is only provided for in Rule 30 of the
Labour Court Rules, which provides:
“Where
a party or witness fails to appear at a hearing the court may,
according to the nature of the case, or as the justice of the case
requires -
(a)
Proceed with the hearing on the merits; or
(b)
Postpone the matter; or
(c)
Upon application by the party in attendance, enter default judgment.”
That
provision makes it clear that the grant of a default judgment is
alternative to proceeding with the hearing on the merits. They are
two different procedures.
In
terms of Rule 33, an application for rescission of judgment, on the
grounds set out in section 92C(1)(a)(b) or (c) of the Labour Act
[Chapter 28:01] shall be made within 30 days from the date the
applicant became aware of the offending order or judgment.
But
then, an arbitrator of labour disputes is also governed by the
Arbitration Act [Chapter 7:15] which domesticated the Model Law on
International Commercial Arbitration adopted by the United Nations
Commission on International Trade. Those two pieces of legislation
must be read in conjunction with one another. Article 25 deals with
default by a party to arbitration and provides in relevant part:
“Unless
otherwise agreed by the parties, if, without showing sufficient cause
–
(a)…,.;
(b)
The respondent fails to communicate his statement of defence in
accordance with Article 23(1), the arbitral tribunal shall continue
the proceedings without treating such failure in itself as an
admission of the claimant's allegations;
(c)
Any party fails to appear at a hearing or to produce documentary
evidence, the arbitral tribunal may continue the proceedings and make
the award on the evidence before it.”
In
my view, the arbitrator cannot grant default judgment if, by that
expression, we mean a decision granted without consideration of the
merits.
The
arbitrator must conduct a hearing, even if it is by one party, and
decide the matter on the merits all the time. To that extent,
therefore, where an arbitral award has been made the arbitrator would
have nailed his or her colours on the mast as it were, given that the
merits would have been determined. It occurs to me, therefore, that
the arbitrator who has made an award is functus
officio
and cannot entertain the same matter again.
I
am of the view that it is for that reason that Article 34 of the
Model Law in the Arbitration Act [Chapter 7:15] provides a party
against whom an arbitral award has been made in his or her absence,
with a remedy to approach the High Court for the setting aside of the
award on that basis alone. Article 34(2)(a)(ii) provides:
“An
arbitral award may be set aside by the High Court only if the party
making the application was not given proper notice of the appointment
of an arbitrator or of the arbitral proceedings or was otherwise
unable to present his case.”
Counsel
for
the respondents, and also deposed to an opposing affidavit on their
behalf, chose not to address the issue at all in his affidavit. He
focused on the fact that the applicant is forum shopping and should
have noted an appeal against the decision of the arbitrator to
decline jurisdiction.
After
we had exchanged some views he was quick to concede that in the
interest of a speedy resolution of the matter, the arbitral award
should be set aside in order for the parties to resolve the merits
once and for all.
I
am aware that an application stands or falls on its founding
affidavit, which, in the present case, seeks only a declaratory order
I am dis-inclined to grant. See Mobil
Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd
1990 (1) ZLR 67…,.
However,
apart from its inherent jurisdiction, this court can set aside an
arbitral award where the applicant was not given proper notice or
otherwise was unable to present his case. So, even if I am wrong in
concluding that an arbitrator cannot rescind an award where he has
dealt with the merits and determined the dispute in the absence of a
party, I am empowered to set aside the award in terms of Article 34
of the Model Law in the Arbitration Act [Chapter 7:15] - except that
the application before me is not for such relief.
Considering
that this is a labour dispute in which equity demands that it be
resolved with a dash of speed and without too much regard to the
trappings of rules of procedure and that counsel for the respondents
consented to the setting aside of the award in the interest of
expediency, I am satisfied that I should exercise my discretion in
favour of the applicant. It must follow, therefore, that such a
course of action dis-entitles the applicant to an award of costs
occasioned by its lack of diligence.
In
the result, it is ordered that:
1.
The arbitral award issued by S. C. Mutare, an arbitrator, on 3
November 2014, in case number 72/11/14, is hereby set aside.
2.
The matter is remitted to the Labour Officer for the appointment of
another arbitrator to arbitrate the dispute between the applicant and
the respondent employees.
3.
Each party shall bear its own costs.
