MAKONI
J:
The
applicant approached the court seeking an order to register an
arbitral award in terms of section 98(14) of the Labour Act
[Cap28:01] (The Act).
The
brief background to the matter is that the applicant was employed by
the respondent. A dispute arose which culminated in the applicant
lodging a complaint of unfair labour practice with Ministry of
Labour. The issue was refered for compulsory arbitration. On 16 March
2006 the applicant obtained an award in her favour. The award was
later quantified on 13 October 2010.
It
is this award, as quantified, that she seeks to register.
The
applicant appealed, in part, against the decision of the arbitrator
on the ground that he had awarded her 40 months salary as opposed to
43 months. At the time of the hearing of this matter the appeal was
still pending. On 6 December and in HC8932/10, the respondent filed
an application seeking the setting aside of the arbitral award. This
application was later withdrawn.
The
application is opposed by the respondent.
The
applicant avers that she was a party to arbitration proceedings, the
award related to her and the copy she is presenting for registration
has been duly certified. The award should be registered.
The
respondent challenges the application on the basis that the
application is incompetent in that it seeks to register part of the
relief that was appealed against by the applicant and is still
subject of an inquiry. The applicant cannot approbate and reprobate
by seeking to rely on an award for registration while in the same
breath seeking to impugn the same by way of appeal.
The
respondent, half heartedly, challenged the application on basis that
the award was contrary to public policy. I say so because the
respondent withdrew the application it had made seeking the setting
aside of the arbitral award.
Secondly,
although such averments were made in the notice of opposition, the
issue was not persisted with in the Heads of Argument or in the
submissions made in court.
It
is not in dispute that the applicant's case meets the criteria as
set out in Ericsson Mvududu v Agriculture and Development Authority
HH286/11. On p2 of the cyclostyled judgement BHUNU J stated;
“In
order to qualify for registration all what an applicant has to do is
to satisfy the court that;
(a)
He is a party to the arbitral proceedings.
(b)
The award relates to him.
(c)
The copy he is presenting for registration has been duly certified by
the arbitrator in terms of subsection 13.
Once
the applicant has satisfied the above three requirements he is
entitled as of right to register the arbitral award in terms of
section 98(14)(a) read with sub subsection (13).”
It
is also not in dispute the applicant seeks to register part of award
and that she has appealed the other part which is still subject on an
inquiry. The issue then is whether it is competent for the applicant
to seek registration of part of the award whilst she appeals against
the one part.
Mr
Kwaramba, for the applicant, submitted that the applicant was not
approbating and reprobating as suggested by the respondent in its
Heads of Argument. Applicant seeks to register the award relating to
her salary. In the Labour Court, the applicant is appealing against
the benefits element of the award. He referred to Erickson Mvududu
case supra in support of his contention.
He
further submitted that the 'once and for all' argument advanced
by the respondent was mainly applicable to damages claims which are
sought especially in aquillian action such as traffic accidents
actions.
Ms
Mahere, for the respondent, submitted that it is incompetent to seek
the registration of an award with a view to issue a writ in respect
of a matter that is still pending in another forum.
Furthermore
the proceedings pending before the Labour Court are between the same
parties as the parties in this matter. The applicant cannot be
allowed to approbate and reprobate a step taken in the proceedings.
She can only do one or the other not both. She relied on the
authority of S v Marutsi 1996 (2) ZLR 370 (SC) at 374.
She
further submitted that the pending proceedings are based on the same
cause of action and in respect of the same subject matter. The fact
that the award in the present proceedings relate to the applicant's
salary while the pending award related to quantification of the
benefits is neither here nor there as both arise from the same cause
of action. The applicant cannot approach a court multiple times in
order to seek relief in respect of the same cause of action. This
principle is known as the once and for all rule.
She
concluded by saying that the application for registration is not yet
ripe for consideration and its improperly before the court.
There
are two parts to the award in issue. One relates to salary and the
other to benefits.
The
applicant has accepted the part relating to the salary. The
respondent has also accepted it as in has not cross-appealed against
it. As for the benefits element, the applicant has appealed for a
higher award than that granted by the arbitrator.
As
BHUNU J reasoned in Mvududu (supra);
“the
conduct does not in my view amount to an appeal against or rejection
of the lesser amount granted by the arbitrator. It stands to reason
that an appeal for more does not without more constitute rejection of
the lesser amount already given.”
He
went further and quoted from Phiri & Ors v Industrial Steel and
Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S) where the Supreme Court pointed
out that where a litigant has only appealed against a portion of the
judgement the suspension (of the decision appealed against) only
applies to that portion of the judgement appealed against. It does
not extend to portions not appealed against.
In
casu the award in four parts and the relevant parts are paragraph 1
and paragraph 2. Paragraph 1 relates to salary. The applicant has not
appealed against this aspect. Neither has the respondent
cross-appealed against it. The respondent has not settled that part
of the award.
Paragraph
2 related to benefits. The applicant has appealed praying for the
quantum of damages to be increased. The respondent has not
cross-appealed against granting of the award.
The
amount by the arbitrator therefore stands and is therefore not
subject to the universal common law that an appeal suspends the
decision appealed against.
The
principle of “once and for all” rule that the respondent seek to
rely on in countering the applicant's argument, does not in my
view, apply to the circumstances of this matter.
According
to Professor Viser and Potsieter in the seminal text, Law of Damages
(Juta and Co) 1993 at p121, the rule is defined as “in claims for
compensation or satisfaction arising out of delict, breach of
contract, or other cause, the plaintiff must claim damages for all
damage already sustained or expected in future in so far as it is
based on a single cause of action.”
The
rationale behind the rule is to prevent a multiplicity of actions
based on a single cause of action and to ensure that there is an end
to litigation. The rule applies mainly to damages claim especially in
aquallian actions.
The
position regarding where the rule is applicable, was made clear by
CORBETT JA in Evins v Shield Insurance Co. Ltd 1980 (2) SA 814 (A) at
835 when he stated;
“the
'once and for all' rule applies especially to common law actions
for damages in delict though it has always been applied to claims for
breach of contract-----------.
Expressed
in relation to delictual claims, the rule is to the effect that in
general a plaintiff must claim in one action all damages, both
already sustained and prospective, flowing from one cause of action.”
In
casu, the application claims for an unfair labour practice. In any
event, if the rule were to apply, it would be at the initial stages
when instituting proceedings. In casu, there is a quantified and
certified award which the respondent has not appealed against neither
has it settled it. There is no cogent reason why it should not be
registered.
In
the result, I will make the following order:
(1)
The arbitral award handed down in applicant's favour on 16 March
2006 and quantified on 13 October 2010 by the Honourable Lawrence M
Gabilo be and is hereby registered as an order of this court.
(2)
The respondent be ordered to pay costs of suit.
Mbidzo
& Muchadehama, applicant's legal practitioners
Messrs
Chizodza Chineunye, respondent's legal practitioner
