TSANGA
J:
This
is an opposed application in which the Applicant, namely World
Education, seeks a rescission of judgement in the matter HC377/14 in
which the Respondent was granted an order to register an arbitration
award it had successfully obtained against the Applicant. Applicant
seeks rescission on the basis that the order was granted erroneously
since it had in fact filed its notice of opposition to the
application on the strength of a pending appeal in the Labour Court
and more significantly on the basis of its additional application for
stay of execution pending appeal in the same court.
In
essence the rescission therefore sought is in terms of Rule 449 of
the High Court Rules which gives the judge or a court the authority
to set aside a decision made in error.
Section
92E(3) of the Labour Act [Cap 28:01] makes it clear that an
application for stay of execution can be made in the Labour Court
pending an appeal.
This
was done by the Applicants.
However,
what has complicated the picture is that the Labour Court has since
dismissed the application for stay of execution following the lodging
of this application.
Respondent
has argued in limine that this being the case the application for
rescission in this case is superfluous and serves no purpose as it
can now freely go ahead with implementing the registered award
unfettered.
Registration
of an arbitral award generally does not deal with the merits of the
matter. (See Elvis Ndlovu v Higher Learning Centre HB86/10).
As
stated by MTSHIYA J in Muneka & Ors v Manica Bus Company HH30-13
the registration of an award in the High Court is generally for
purposes of enforcement only since the Labour Court does not have its
own enforcement machinery.
Furthermore
as he articulated therein, if an award has not been suspended or set
aside on review or appeal there is no basis upon which the High Court
may decline registration.
However,
as elucidated by CHIGUMBA J in Giya v Ribi Tiger Trading HH57-14
apart from seeking a stay of execution pending appeal, it is also
open to a party to challenge registration of an award on the grounds
that the registration is contrary to public policy. Such an argument
would generally rely on the grounds stated in Art 36(3) of the
Schedule to the Arbitration Act [Cap 7:15] though the grounds therein
are not exclusive.
Applicant
in fact persists with its quest for rescission on the basis that
registration of the award would be improper as it violates public
policy in terms of Art 36(b)(ii) of the Arbitration Act.
That
the High Court in hearing a matter which opposes registration of an
award on the basis of the provisions of Art 36 in general of the
Arbitration Act, does not mean it can exercise appeal powers or reach
any conclusion on the faultiness or otherwise of any arbitrator's
decision in such an application, is also well covered in case law.
See Zesa v Maposa 1999 (2) ZLR 452 (S) 466E-G; Wei Properties (Pvt)
Limited v S &T Export and Import (Pvt) Limited HH336-13.
As
stated in the above cases, what has to be shown to successfully
refuse registration using Art 36(b)(ii) for instance, which is the
one which deals with refusal of registration on the grounds of public
policy, is that the decision is so far reaching and outrageous in its
defiance of logic or accepted moral standards that a fair minded
person would consider that the conception of justice would be hurt by
the award.
In
casu, the matter of stay of execution has already been dealt with by
the Labour Court in Judgment No. LC/H/334/14 and therefore in my view
there would be no merit in the Applicant seeking rescission on the
basis of a reason which has since been overtaken by events and which
predominantly influenced its argument why it was necessary to be
heard.
Whether
it has valid grounds for continuing to seek rescission on the basis
of public policy is really the issue.
Notably
in dismissing the application for stay of execution, Judge MURASI
made the following observations which in my view shed light on this
issue:
“The
figure awarded by the Arbitration is $100,296.00. This is a large sum
of money to be paid in damages. It becomes alarming if not justified
by evidence. Considerations should also be had to the other side.
Respondent stated that his salary was $2,000.00 per month and he had
been prejudiced due to Applicant's decision to relieve him of his
duties. This court is of the view that the prejudice to be suffered
by either party is evenly balanced. Applicant may need to fork out a
lot of money in the circumstances, but Respondent is entitled to live
and fend for his family. Applicant has not informed the court that
Respondent has found alternative employment. If this was so, then it
would be understandable that the prejudice suffered by the Respondent
would be cushioned by the alternative employment. The court finds
that on balance Applicant has not been able to surmount this hurdle.”
The
Judge also canvassed the prospects of success on appeal noting the
weakness in Applicant's argument that what it had was a consultancy
arrangement with the Respondent noting that Applicant would not have
had to bundle the Respondent out of its premises if it indeed had a
one month agreement with him.
In
addition the Judge stated that the prospects are limited by the fact
that the documents suggest that Respondent was engaged for a year.
In
light of the view by the that the arbitrators' decision is
unassailable, the Applicant's argument that it still seeks
rescission on the basis that it wants to oppose registration on the
strength of the award being against public policy appears to rest on
shaky ground.
Applicant
failed to make a convincing case before the Labour Court in this
regard.
It
would not be proper in my view for this court to proceed in
considering the application for rescission under Order Rule 449 of
the High Court Rules, 1971, as if there have been no developments in
this matter as exemplified by the decision of the Labour Court in
refusing stay of execution and which addressed exactly that which is
sought to be argued if the registration is rescinded.
The
courts cannot just act like mere robots in applying the law but must
do so in a way that meets the justice of the case in light of both
the law and the circumstances of a given case.
Given
the reasons in toto for the dismissal of stay of execution by the
Labour Court, including its pessimistic view of the success of the
appeal, what accords with real and substantial justice at this
juncture is that the registration of the award be not rescinded.
Furthermore,
it will serve no purpose to rescind registration given the
development of the matter because there is also authority that
suggests that once an arbitration order is registered with the High
Court, it is an order of this court and that as such this court has
power to grant a stay if so approached. See University of Zimbabwe v
Jirira & Others SC360/12.
As
ZIYAMBI JA stated in that case, in an application brought before her
where the applicant sought an order interdicting the respondents from
levying execution on its property pending an appeal against an order
of the High Court refusing it a stay of execution:
“I
granted the application at the end of the hearing because I was of
the view that, the award having become an order of the High Court
upon registration by that court, the court a quo misdirected itself
in holding that it did not possess jurisdiction to grant the order
sought…..”
Given
the controversy in this area of the law, she did raise the issue of
the possibility of a full bench of the Supreme Court reaching a
different conclusion.
However
since section 171(1)(a) of the Constitution of Zimbabwe Amendment
(No.20) Act 2013, grants the High Court original jurisdiction over
all civil and criminal matters throughout Zimbabwe, it could
therefore be argued on this basis that it would have jurisdiction in
matter concerning stay of execution, more so as it is in fact the one
court that can register such an order.
Notably
at the time that ZIYAMBI JA heard the above application the appeals
before the Labour Court had been dismissed and the applicant had
applied for leave to appeal to the Supreme Court in terms of section
92F of the Labour Act [Cap 28:01].
The
rational for seeking stay in that case was that the magnitude of the
award would have led to the shut of the University and hence
execution was prima facie unreasonable. The entire library of the
University and its vehicles had been attached.
In
a similar vein Applicant argues that it has sought leave to appeal to
the Supreme Court against the dismissal of stay of execution by the
Labour Court.
Its
application was yet to be heard at the time that this application for
rescission came before me.
In
the final analysis this application for rescission has been overtaken
by events in the form of the dismissal of stay of execution and the
reasons therein which prima facie touch on its public policy
argument. The application is without merit in terms of seeking to
reverse registration of the award. Furthermore as stated, the
Applicant even at this point is not entirely without a remedy were
the Respondents to seek execution in the face of registration of the
award with the High Court.
The
application is accordingly dismissed with costs.
Kantor
& Immerman, applicant's legal practitioners
M.E.
Motsi and Associates, respondent's legal practitioners
