MUREMBA
J:
The
applicants were granted an Arbitral Award by Arbitrator P Bvumbe in
their favour on 28 August 2013. On 12 February 2014 the arbitral
award was quantified. This is an application to have the arbitral
award registered as an order of this court in terms of section 98(14)
of the Labour Act [Chapter
28:01]
for the purposes of enforcing the order.
The
respondent raised a point in
limine
to the effect that the application should be dismissed for the reason
that the founding affidavit was deposed to by Mr Caleb
H.
Mucheche
who is a legal practitioner on behalf of the applicants, his clients.
In
the answering affidavit Mr Mucheche
argued
that there was nothing irregular about a legal practitioner deposing
to an affidavit in a matter where he is conversant with the facts. He
said in the present case he is the one who was representing the
applicants during arbitration proceedings leading to the present
application, so he is conversant with the facts.
He
went on to cite the case of Zimbabwe
Banking Corporation
Limited
v
Trust Finance Limited and Another
HH130/06 where the court took into account the history of the case
and accepted the applicant's affidavit which had been deposed to by
the applicant's legal practitioner. The same legal practitioner had
acted for the applicant in the proceedings which subsequently led to
the taxation case which sought to be reviewed by the court. The court
said that the deponent was duly authorised by the applicant as he
averred in the affidavit.
Mr
Mucheche
also
referred to the case of Air
Zimbabwe Corporation & Others v
The
Zimbabwe Revenue Authority
HH96-03. In that case the court held that the deponent to the
applicant's affidavit had authority to act for and on behalf of the
applicants after taking into account the prior dealings between the
parties.
Mr
Mucheche
further argued that it is not always a requirement that there has to
be proof of authority to represent the principal.
It
was submitted that in any case this court is only faced with the
application for the registration of the Arbitral Award and nothing
else. It does not have to enquire into the merits of the case.
In
support of the point in limine,
Mr Gasva,
for the respondent made reference to the case of Mandaza
v
Mzilikazi
Investments (Pvt) Ltd
2007 (1) ZLR (H) wherein Ndou J said;
“Generally,
a legal practitioner should not depose to a founding affidavit on
behalf of a client. However, he may do so if the facts of the case
are within his personal knowledge. Even in such exceptional case the
practice should be exercised sparingly.”
Mr
Gasva
argued
that in the present case there is no explanation why the applicants
could not depose to the affidavit themselves.
Taking
into account the history of the case that it is Mr Mucheche
who was representing the applicants during the arbitration
proceedings leading to the present application, I would not say that
it is doubtful that he was authorised by the applicants to represent
them. What he deposed to is within his personal knowledge.
I
find the cases that were cited by Mr Mucheche
relevant.
Even the case that was cited by the respondent's counsel is also
relevant and it supports the applicant's argument that in a case
where a legal practitioner has personal knowledge he can depose to an
affidavit.
Even
Rule 227(4)(a) of the High Court Rules, 1971 states that
an affidavit that accompanies a written application shall be made by
the applicant or respondent, as the case maybe, or by a person who
can swear to the facts or averments set out therein.
In
Bubye
Minerals (Pvt) Ltd & Another v
Rani International Ltd
2007 (1) 22 (S) Cheda JA (as he then was) stated that a founding
affidavit must be based on personal knowledge and not on hearsay.
That
being the case in the present matter that Mr Mucheche's
affidavit is not based on hearsay I am not persuaded by the
respondent's argument.
In
the case of TFS
Management Company
(Pvt)
Ltd v
Graspeak Investments (Pvt) Ltd & Another 2005
(1) 333 (H) it was stated that an affidavit accompanying an
application may be made by a legal practitioner who can depose to
facts within his personal knowledge. In that case that is what
happened and the court went on to say that the legal practitioner did
not require special authority to depose to the affidavit. His
authority to depose to the affidavit in the application for further
particulars could not be disputed because the respondents had not
impugned his authority to act for the applicant in the main action.
In
the present case if Mr Mucheche
was representing the applicant in the arbitration proceedings the
respondent has no basis to challenge his authority in deposing to the
founding affidavit.
For
the above reasons I will dismiss the point in
limine.
THE
MERITS
Mr
Mucheche
argued that there being nothing suspending the arbitral award in
terms of section 92E of the Labour Act [Chapter
28:01]
there is no impediment to its registration.
In
opposing the application the respondent stated that it is opposed to
the registration of the Arbitral Award for the reason that it has
since appealed against the granting of the award in the Labour Court
and that appeal is still pending.
Further
to that there was also an application for an interim relief in terms
of section 92E(2) of the Labour Act [Chapter
28:01]
which was made to the Labour Court, which application again was still
pending. The interim relief being sought was the stay of the award
pending the determination of the appeal by the Labour Court.
The
respondent argued that it was therefore premature for the applicants
to try to enforce the award.
On
the date of the hearing the applicant's counsel brought to the
attention of the court that the interim relief that the respondent
was seeking in the Labour Court for the stay of the award pending the
determination of the appeal had subsequently been dismissed on 23 May
2014, after the parties had already filed their heads of argument.
This court was furnished with a copy of the court order under case
number LC/H/ORD/23/2014.
In
terms of section 92E(2) of the Labour Act an appeal does not have the
effect of suspending the determination or decision appealed against.
Section
92E(3) empowers the Labour Court to stay or suspend an award pending
determination of an appeal.
I
am in total agreement with the words of Patel J (as he then was) in
the case of Gaylord
Baudi v
Kenmark Builders (Pvt) Ltd HH4-12
which the applicant's counsel referred me to. He said;
“As
I have already stated, section 92E(2) of the Labour Act expressly
provides that an appeal against an award in terms of section 98(10)
shall not operate to suspend the award. Section 92E(3) enables the
Labour Court to suspend or stay an award upon application by the
aggrieved party. Where no such application is made or where it is
dismissed, subsections (14) and (15) of section 98 entitle the
successful party to apply for the registration and enforcement of the
award.
Parliament
has obviously applied its mind to the delays inherent in the appeal
process and considered the policy implications of the general common
law rule which automatically suspends a decision that is appealed
against. It has consciously and deliberately decided that arbitral
awards in the realm of labour relations should be enforced, despite
any pending appeal and notwithstanding any inconvenience that such
enforcement might entail.
In
this context, it would be very difficult to hold that what is
specifically provided for and allowed by statute should be regarded
as being contrary to public policy. Any such approach would simply
operate to frustrate and defeat the clear intention of Parliament.”
See
also the case of Benson
Samudzimu v
Dairiboard Holidings
Ltd HH204/10.
In
casu
the
arbitral award which seeks to be registered has not been set aside on
review or on appeal nor has it been suspended. There is therefore no
basis for this court to decline to register the arbitral award.
Costs
Mr
Mucheche
argued for costs on the higher scale of legal practitioner and client
on the basis that the respondent had not raised any serious objection
to the application.
I
am not inclined to award such costs for the reason that when the
respondent opposed this application it had already filed an appeal
against the award in the Labour Court. It had also filed an
application for interim relief in the Labour Court for the suspension
of the award in terms of section 92E(3) of the Labour Act. Both
applications were still pending. In opposing this application, the
respondent was therefore banking on both or either of the
applications succeeding.
The
application for the registration of the arbitral award is granted as
per the draft order filed of record. The respondent shall pay costs
of suit on the ordinary scale.
Matsikidze
and Mucheche, applicant's
legal practitioners
Chirimuuta
and Associates, respondent's
legal practitioners
