MANGOTA
J:
I
dealt with this application on 19 February 2018. I delivered an ex
tempore
judgment in which I dismissed it with costs.
On
8 May 2018 the applicant addressed a letter to the High Court
Registrar. It did so through its current legal practitioners. It
requested for reasons for my decision. These are they:
The
applicant and the respondent appeared before the arbitrator one C
Mesikano on 21 February 2013. He issued an arbitral award in favour
of the applicant. He ordered the respondent to pay to the applicant
the sum of $256,317.00.
The
arbitral award gave birth to the current application. The applicant
moved the court to register the same for purposes of enforcement. It
advanced four reasons for the motion which it placed before the
Court. These were that:
(a)
the award was sounding in money;
(b)
the amount awarded was within the monetary jurisdiction of the court;
(c)
the award was certified in terms of Form LR 9; and
(d)
the applicants were a party to the arbitration award.
The
respondent opposed the application. It raised two preliminary matters
after which it dealt with the substance of the application. Its two
in
limine
matters were that:
(i)
HC3359/13 which the applicant filed on 3 May 2013 was pending at
court; and
(ii)
the cases of Ngonidzaishe Moliba and Julius Demo who were managerial
workers were dealt with separately from that of Nelson Maurede and 16
others.
It
stated, on the merits, that the parties did not agree on the quantum
which the applicant sought to register. It submitted that the
applicant misled the arbitrator on the mentioned issue. It said it
registered its objection to the same and it urged the arbitrator to
exercise his powers and correct the quantum
so that it remained in
sync with
what it said was the correct position of the matter.
It
submitted that it successfully applied for stay of execution of the
arbitral award.
It
stated, in its heads, that only Nelson Maurede withdrew his
application for registration of the arbitral award under HC3359/13.
It insisted that the other applicants did not. It said only fourteen
(14) applicants were before the court.
It
averred that Kelvin Makuva and Jonis Nyadzuwa who passed on were not
before the court. It stated that there was no substitution of the
dead persons. It said the court has not been told the amount which
related to the two deceased persons.
It
insisted that the arbitral award which did not identify the sixteen
(16) others was invalid. It said there was no legal persona
which answered to the name “Nelson
Maurede and
sixteen
(16) others.”
It submitted that the only person to whom the award related was
Nelson Maurede. It averred that the award which was made against a
non-existent entity was a nullity.
It
moved the court to dismiss the application with costs.
Annexures
D and E which the respondent attached to its notice of opposition are
relevant.
The
annexures are letters which it addressed to the learned arbitrator on
22 February 2013 and 20 March 2013. They state in clear and
unequivocal terms that the respondent disagreed with the quantum
which the applicant seeks to register.
The
respondent did not hide its disagreement with the figure of $256,317.
It copied the annexures to the applicant. The annexures state in an
undiluted manner that what the arbitrator endorsed was the
applicant's unilateral statement. One of the annexures urged the
arbitrator to exercise his powers in terms of section 98(2) of the
Labour Act as read with section 33 of the Arbitration Act and correct
the figure of $256,317 which was, and is, the subject–matter of the
parties dispute.
The
applicant states, in response, that the respondent should refer the
above mentioned matter to the arbitrator. It submits that it is not
within the jurisdiction of the court to review the award.
Whilst
the position which the applicant takes reflects the correct position
of the law, it is not, at the same time, suggesting that the court
which is faced with such a matter as the respondent raised should
turn a blind eye to the same. It is not, in other words, moving the
court to simply rubber stamp what it placed before it notwithstanding
the unsatisfactory circumstances of the same.
Where,
as in
casu,
parties are at cross purposes on the issue of the quantum
which is sought to be registered and there is no evidence that their
disagreement on the same was resolved, it is, in my view, ill-advised
for the applicant to insist on registering the wrong quantum
for purposes of enforcement.
The
applicant knows as much as I do that, once registered, the order
ceases to be that of the court a
quo.
It assumes the status of the order of this court. Its knowledge of
that fact notwithstanding, it insists that the order should be
registered in its uncorrected form.
That,
with respect, increases litigation which clogs the court's roster
unnecessarily.
It
is, at any rate, not the function of the court to aid and abet
disputes which parties place before it. Its sole function is to
resolve such in the interests of justice.
It
is, therefore, in the interests of justice that I took note of the
parties' serious disagreement as to the issue of quantum
which is sought to be registered and allowed them to resolve the same
so that the agreed sum is placed before the court for registration.
The
fact that the disputed quantum
was adversely affected by the death of one Kelvin Makuva and one
Jonis Nyadzuwa whose estates remain unjoined to the application adds
another dimension to an already confused matter.
It
is, in my view, pertinent for the parties to resolve their dispute at
the appropriate forum before the applicant moves the court to
register an arbitral award which is under such a serious challenge as
the present award is. A fortiori
when evidence filed of record points in the direction that the
challenge which the respondent raised two years prior to the filing
of the application remains unaddressed to date.
The
applicant relied on the remarks which Bhunu
J
(as he then was) made in Ericson
Mvududu
v Agricultural
& Development Authority
HH286/11 wherein he spelt out three requirements which an applicant
for registration of an arbitral award must satisfy for the award to
be registered. The learned judge said:
“In
order to qualify for registration all what an applicant has to do is
to satisfy the court that:
(i)
he is a party to the arbitral proceedings;
(ii)
the award relates to him;
(iii)
the copy he is presenting for registration has been duly certified by
the arbitrator in terms of subsection (13)”.
The
applicant's statement is that it satisfies the abovementioned three
requirements. It insists that the same must, therefore, be
registered.
The
award which is sought to be registered appears at p20 of the record.
It makes mention of Nelson Maurede only. It does not mention any
other person apart from him. Those who are suing together with him
are collectively described as “16
others”.
The names of the sixteen (16) remain unknown.
The
absence of their names from the arbitral award disenables them from
being parties to the arbitration proceedings. The award cannot relate
to unknown and unnamed persons.
Certainty
is the hallmark of any judicial work. No judicial proceedings can
validly be conducted by, or against, unknown or unidentified persons.
The
applicant does not, therefore, satisfy paragraph(s) (a) and (b) of
the above cited judgment upon which it places its reliance.
Apart
from Nelson Maurede whose name is specifically mentioned in the
award, none of the other persons who sued together with him can show
the registering court that:
(i)
he or she is a party to the arbitration proceedings; or
(ii)
the award relates to him or her.
The
application is, to the above stated extent, fatally defective.
The
respondent states, and in my view correctly so, that there is no
legal persona
which
answers to the name “Nelson
Maurede and 16 others”.
It
insists, and I agree, that when proceedings are instituted by a
non-existent entity, the court cannot relate to the same. The case of
CT
Bolts (Pvt) Ltd v
Workers
Committee
2012 (1) ZLR 363 (S) which it cited in its Heads aptly describes the
circumstances of the applicant. I, in the mentioned regard, associate
myself with the remarks which Garwe
JA was pleased to make in the same when he said:
“The
respondent not being a legal persona
is not properly before the court. The proceedings before the Labour
Court and prior to that, the arbitrator, were similarly void.”
That
the proceedings which brought about the award which is the subject of
this application are a nullity requires little, if any, debate. It
stands to good logic and reason that a nullity cannot form the basis
of any registration.
The
current application cites Treger Products (Pvt) Ltd as the
respondent. The award which the learned arbitrator granted cites
Treger Ltd as the applicant's employer.
There
is a world of difference between the two cited names.
This
application relates to a private company. The applicant's employer,
on the hand, is a public company. It remains unclear if registration
is sought against Treger Products (Pvt) Ltd or against Treger Ltd.
The applicant did not explain the anomaly. Nor did it explain how
that anomaly it came about.
The
onus
rests on it to state the correct position of the matter. The court
cannot.
What
the court can tell, however, is that it is impossible for the
applicant to enforce an award against a non-existent entity. As the
respondent correctly states, Treger Products (Pvt) Ltd was not a
party to the proceedings which the learned arbitrator conducted. The
award cannot, therefore, be registered against it.
The
above described matter was succinctly clarified in Gariya
Safaris (Pvt) Ltd
v Van
Wyk
1996 (2) ZLR 246 (H) which stated:
“A
summons has legal force and effect when it is issued by the plaintiff
against an existing legal or natural person. If there is no legal or
natural person answering to the names written in the summons as being
those of the defendant, the summons is null and void ab
initio.”
Nelson
Maurede is the deponent to the founding affidavit.
The
citation reads Nelson Maurede and 16 Others. Thirteen (13), and not
sixteen (16), persons filed affidavits in support of the application.
The position of the remaining three (3) persons remains unknown as
well as unexplained.
The
applicant did not amend its papers to reflect the correct position of
the matter.
The
award relates to seventeen (17) persons. It should be proportionately
reduced in terms of its quantum
by the non-appearance of the three unnamed and unknown persons.
The
abovementioned matters pointed at a number of unsatisfactory features
of the award which the applicant seeks to register. I cannot, under
the circumstances, proceed to register an award which is fraught with
invalidity as well as other matters which disenable its registration.
The
application is, in the premise, dismissed with costs.
Makururu
& Partners,
applicant's legal practitioners
Venturas
& Samukange,
respondent's legal practitioners
