ZHOU
J:
This
is an application for the setting aside of an arbitral award rendered
by the second respondent in a contractual dispute between the
applicants and the first respondent. The application is being made
in terms of Article 34(2)(b)(ii) of the Schedule to the Arbitration
Act [Chapter
7:15].
The
application is opposed by the first respondent.
The
first, third and fourth applicants are employees of the first
respondent, a statutory body constituted in terms of the Zimbabwe
Council for Higher Education Act [Chapter
25:27].
The now deceased Professor Obert Ndawi whose deceased estate is cited
as the second applicant, was also an employee of the first respondent
prior to his death.
The
applicants were employed in terms of written contracts of fixed
duration which terminated by effluxion of time at the end of December
2012 and January 2013 for that of the third applicant. The contracts
were signed in 2008. After the termination of their employment
contacts the applicants remained in employment on the same terms and
conditions as the expired contracts. They were assured that their
employment would be extended and that they would be made to sign new
contracts of employment. A letter addressed to the first applicant
dated 9 January 2013 stated the following:
“Dear
Mr Gurira
RENEWAL
OF CONTRACT
It
is with great pleasure that I write to inform you that your
application for the renewal of your contract has been approved.
This
is very good news for ZIMCHE, and we will do our best to ensure that
the signing of the new contract is expedited.”
The
letter was signed on behalf of the first respondent by Professor
Emmanuel Ngara in his capacity as the Chief Executive Officer.
The
other three applicants received the same letter.
By
letter dated 29 April 2013 the first respondent advised the
applicants that as a consequence of a directive addressed to the
Ministry of Higher and Tertiary Education by the Ministry of State
Enterprises and Parastatals the salaries of Principal Directors and
Directors were to be reviewed as illustrated in the schedule attached
to the letter addressed to the applicants.
The
applicants were given up to 10 o'clock in the morning of the
following day to choose one of two options presented to them.
The
first option was for a four-year employment contract based on amended
packages with the effective date being 1 January 2013. An assurance
was given that remuneration already received from 1 January 2013 to
30 April 2013 would not be deducted from the applicants' packages.
The
second option was a contract for a period of one year up to 31
December 2013 on the same terms and conditions which prevailed then.
Upon termination of the contract the positions would be advertised
and the applicants would be entitled to apply for them together with
any other persons who might be interested in the same positions.
The
applicants chose the first option which was for four-year contracts.
New
contracts were signed by the applicants in June 2013. The contracts
signed in June contained less favourable conditions than the expired
ones. The applicants allege that they signed the new contracts under
duress.
According
to them a Mrs Muguti from the Ministry of Higher and Tertiary
Education had given information to the Chief Executive Officer of the
first respondent to the effect that if the applicants did not sign
the written contracts presented to them in June then they would be
without employment the following Monday.
That
statement, according to the applicants, was repeated by Mrs Muguti to
the first respondent's Deputy Chief Executive Officer at Gwanda.
The applicants stated that some of them “overhead” the
conversation between Mrs Muguti and the first respondent's Deputy
Chief Executive Officer. The applicants alleged that they attempted
to resolve the issue of the contracts internally before they signed
the contracts. They subsequently signed the agreements.
The
arbitrator rejected the applicants' contention that they signed the
contracts in June 2013 under duress.
That
is the conclusion which the applicants contest on the basis that it
is in conflict with the public policy of Zimbabwe.
In
terms of Article 34(2) of the Schedule to the Arbitration Act:
“An
arbitral award may be set aside by the High Court only if –
(a).
. .
(b)
The High Court finds that –
(i).
. .
(ii)
The award is in conflict with the public policy of Zimbabwe.”
Article
34(5) provides as follows:
“For
the avoidance of doubt, and without limiting the generality of
paragraph (2)(b)(ii) of this Article, it is declared that an award is
in conflict with the public policy of Zimbabwe if –
(a)
the making of the award was induced or effected by fraud or
corruption; or
(b)
a breach of the rules of natural justice occurred in connection with
the making of the award.”
The
public policy provisions referred to above must be interpreted
restrictively consistent with the need for finality in arbitration
proceedings. See Zimbabwe
Electricity Supply Authority v
Maposa 1999
(2) ZLR 452 (S) at 465 C-D; Beezley
NO v
Kabell & Anor 2003
(2) ZLR 198 (S); City
of Harare v
Harare Municipal Workers Union 2006
(1) ZLR 491 (H) at 493A-C.
This
court is mindful of the fact that it is not sitting as an Appellate
Court to consider the merits of the decision of the arbitrator. The
mere fact that the decision of the arbitrator is incorrect in some
respects does not per se justify the setting aside of the award in
terms of Article 34.
The
authorities have consistently held that it is only when “the
reasoning or conclusion in an award goes beyond mere faultiness or
incorrectness and constitutes a palpable inequity that is so far
reaching and outrageous in its defiance of logic or acceptable moral
standards that a sensible and fair minded person would consider that
the conception of justice in Zimbabwe would be intolerably hurt by
the award” that this court would set aside the award on the grounds
contained in Article 34.
See
Zimbabwe
Electricity Supply Authority v
Maposa,
(supra),
at
466 E-G; Delta
Operations (Pvt) Ltd v
Origen Corp (Pvt) Ltd 2007
(2) ZLR 81 (S) at 85C-D; Beezley
NO v
Kabell & Anor,
(supra),
at
201 D-E; Muchaka
v
Zhanje & Anor 2009
(2) ZLR 9 (H) at 11 E-G.
Put
in other words, the incorrectness must not only be serious; it must
constitute an affront to our conception of justice and fairness.
Before
I consider the merits of the application I should say something about
the draft order which sets out the relief being sought by the
applicants.
The
relief being sought goes beyond merely seeking the setting aside of
the arbitral award. The draft order also seeks a declaration that the
contracts which were signed by the applicants in June 2013 are
invalid, null and void, as well as an order that the applicants be
declared to be permanent employees of the first respondent on the
basis of the contractual terms and conditions contained in the
contracts which expired in December 2012 and January 2013.
The
draft order is an invitation to the court to substitute its own
decision for that of the arbitrator as if the court is sitting in an
appeal against the arbitrator's decision. That relief falls outside
relief which this court would be entitled to grant in terms of
Article 34. See Zimbabwe
Electricity Supply Authority v
Maposa,
(supra),
p 467 B-C.
Further,
it is difficult to understand how the applicants would want a
deceased estate which is cited as the second applicant to be declared
a permanent employee of the first respondent. Quite apart from the
fact that a deceased estate should be represented in proceedings by
an executor, the relief being sought would be incompetent in relation
to it.
Legal
practitioners and litigants must apply their minds to the relief
which they set out in the draft orders and not merely attach draft
orders to the papers as a matter of course. The relief set out in a
draft order must be based on the papers filed and must seriously
reflect the cause of action as pleaded in those papers.
Turning
to the merits of the application, the arbitrator came to the
conclusion that no duress had been established by the applicants to
warrant the setting aside of the contracts which they signed in June
2013.
The
arbitrator noted that the alleged threats were not communicated to
the applicants by Mrs Muguti but by a third party and, in another
instance, some of the applicants stated that they had simply
overheard a conversation between Mrs Muguti and some other person.
Also,
the applicants unreservedly signed the contracts. They did not sign
the contracts under protest because of the pressure which they
alleged had been put to bear upon them.
The
arbitrator noted, too, that the applicants were aware as long ago as
January 2013 that they would be required to sign new contracts. Even
the option that they chose on 29 April 2013 already contained terms
and conditions which were less favourable than the earlier contracts
which had terminated. They were therefore aware that the contracts
that they would be signing in due course had terms and conditions
different from their first contracts.
I
do not believe that the above conclusions can be characterised as
manifestly wrong to the extent of constituting a palpable inequity.
The
contracts may have been prejudicial to the applicants but the
arbitral award is not wrong in its conclusions on the facts and
evidence presented. The applicants are not ordinary persons but
highly educated professionals. The first applicant is a Principal
Director, Human Resources and Administration. He would be the first
person to appreciate the implication of signing a contract of
employment without reservations. It does not follow that whenever a
person is not happy about the terms of a contract which he or she is
signing then the conclusion must be that the person is signing the
contract under duress or undue influence.
If
that approach was to be adopted then most contracts would be
invalidated as they in most cases follow negotiations in which the
parties do not always get everything that they would want to get out
of the contracts.
Nothing
is said about who Mrs Muguti is in relation to the contracts of the
applicants such that they would not be able to inquire directly from
her as to the situation surrounding their contracts.
There
is also no explanation as to why the applicants did not approach the
court on an urgent basis to protect their interests if they genuinely
believed that they were being unduly pressured to sign unfair or
oppressive contracts.
The
issue of legitimate expectation does not arise as the applicants were
notified in January that renewal of their employment contracts had
been approved. They had no legitimate expectation to have their
contracts renewed on the same terms as the expired one as they were
told that they would be signing new contracts.
In
fact, in April, they were even told and they accepted that those
contracts would have less favourable terms in terms of remuneration
than their first contracts.
The
arbitrator adequately considered the principles of law applicable to
cases of duress in the context of contracts, and came to the correct
conclusion that the contracts signed by the applicants could not be
impeached on the ground of duress. Every other argument which the
applicants raised depended upon a determination on the question of
the validity of the contracts which they signed in June 2013. Once
the arbitrator concluded that the contracts were validly signed the
issue of whether the letter of 9 January 2013 constituted an offer
became irrelevant.
For
the above reasons, I find no ground for the award rendered by the
second respondent to be set aside. The application must accordingly
fail. No submissions were made as to why the costs should not follow
the result.
In
the result, IT IS ORDERED THAT:
1.
The application be and is hereby dismissed.
2.
The applicants shall pay the costs jointly and severally the one
paying the others to be absolved.
Dzimba
Jaravaza & Associates,
applicants' legal practitioners
Sawyer
& Mkushi,
first respondent's legal practitioners
