Opposed
Application
TSANGA
J:
This
is an opposed application for rescission of judgment which has its
genesis in the dismissal of the applicant Patricia Mapini, from
employment by the respondent, Omni Africa.
The
applicant was engaged as a Sage Pastel Sales Executive by the
respondent.
The
working relationship soured when the respondent terminated the
applicant's contract of employment on the basis of certain
allegations it made against her.
Aggrieved
by what she considered to be unfair dismissal, the applicant sought
resolution of the matter through compulsory arbitration.
She
obtained a default judgment for the sum of US$36,064.00
on
29 June 2012.
The
present application for rescission has its foundations in this
initial default judgment obtained by the applicant.
Since
two different sets of default judgements, one at the instance of the
present applicant, and the other at the instance of the respondent,
inflame this dispute it is important to capture the details of both.
Furthermore,
in resolving disputes, the devil is often in the factual details
ultimately examined against whatever the law provides.
The
first default judgement that resulted in the granting of the arbitral
award, was spawned by two postponements of the arbitrator's
hearing.
Initially
set for hearing on 9 February, the matter could not take place as the
arbitrator was away on that day. Further postponed to 15 February, it
again still failed to take off on that day. This time, the
respondent's lawyer, Mr Mazhande,
was unable to attend due to the need to attend a funeral. He however
requested a representative from another law firm to inform the
arbitrator. The evidence on file suggests that this was duly done.
The
papers filed of record further reveal that the arbitrator after
receiving word from the emissary, dutifully postponed the matter to
21 February. This was by written notice to both the applicant and
respondent.
The
information in the papers placed before the court in addition
confirms that respondent's receptionist signed and received the
notification of this new date, on 16 February. Nonetheless on the
re-appointed day, February 21, the respondent did not show up which
resulted in the granting of a default judgement by the arbitrator in
favour of the applicant. This judgement was subsequently finalised on
29 June.
The
evidence placed before the Honourable Court also shows that in
carrying out the necessary processes for the finalisation of the
award, the respondent was accordingly notified at every stage.
Applicant proceeded to register the arbitration award on 6 July 2012.
The registration was granted on 4 December 2012.
It
is against this order that the High Court issued a writ of execution
on 29 January 2013.
This
has also spawned yet a pending matter of stay of execution.
Parallel
to the above processes, the respondent who had not been present at
the hearing on 21 February, filed an application on 1 October 2012 in
terms of Article 34 of the Arbitration Act [Cap
7:15],
seeking the setting aside of the arbitral award which was granted on
29 June 2012.
The
respondent's primary argument was that the award made by the
arbitrator in its absence violated the dictates of natural justice in
that it had not been granted a hearing.
The
respondent succeeded in setting aside the arbitral award.
This
was not on the basis of consideration of any merits but as a result
of a default judgement granted in an unopposed matter.
It
appears that applicant did respond to the application on the 18
October, (also confirmed by stamped documents in file HC/11439/12)
attaching documents challenging the respondent's averment of lack
of notification.
However,
she sent her documents to the respondent's previous lawyers
Muchandibaya and Associates.
These
lawyers had indeed at some stage, as evidenced by correspondence,
represented the respondent in the matter.
There
is some dispute as to when exactly they assumed agency. No record was
on file regarding this aspect.
They
were however no longer acting for the respondent at the time of the
application for rescission as the application was issued by Mawere
and Sibanda Legal Practitioners.
A
default judgment was granted on 21 November 2012.
It
is this default judgement that the applicant seeks to rescind.
Applicant
states that she only got to know of the default judgement on 15 July
2013. This was after she was served with an urgent chamber
application for stay of execution. She filed her application for
rescission on 23
July
2013.
She
avers in support of her application for rescission that she was
unaware at the time that the respondent had since changed
practitioners.
She
also disputes that the respondent was not aware of the arbitration
award until its registration on the basis that the evidence from
process shows that the respondent was informed at all times and
generally chose to ignore correspondence.
Applicant
also challenges the setting aside of the arbitral award on the
grounds that the High Court lacked the necessary jurisdiction to hear
this matter.
She
maintains that the setting aside of an arbitral award is the
exclusive jurisdiction of the Labour Court in terms of the Labour Act
[Cap
28:01].
Reference
was made to several judgements which I will canvass more fully later
in this judgement in addressing this issue.
The
respondent opposes the application for rescission on the basis that
none of the acceptable grounds for rescission are met by the
applicant.
These
include a reasonable explanation for the default; the bona
fides
of the application to rescind; and the bona
fides
of the defence to the claim which must have some prospect of success
at the trial.
Cases
referred to include Stockhill
v Griffiths 1992
(1)
ZLR 172 (S);
Rolland
and Anor v Donell
1986
(2) ZLR 216 (S);
Songore
v Olivine Industries (Pvt) Ltd
1988
(2) ZLR 201 (S);
and
Barclays
Bank of Zimbabwe v CC International (Pvt) Ltd S16-86.
Counsel
for the respondent also argued that the applicant has to bear
responsibility for not being vigilant. See Ndebele
v Ncube
1992
(1) ZLR 288 (S).
Applicant's
reasons for her default HC/11439/12 are credible.
Order
2 Rule 5(2) of the High Court Rules requires a party who has changed
legal practitioners to file a notice of change with the Registrar and
to advise all
other parties
to the proceedings of the change.
It
is unreasonable and most certainly irregular to simply expect that
the applicant should have picked the change of address from the fact
that the application came from Mawere and Sibanda Legal
Practitioners.
There
is nothing on record that shows that the applicant was advised of the
sea of changes in practitioners representing the respondent at
various turns - these include the take over from Mr Mazhande
who is said to have been unable to attend the hearing on 15 February
by Muchandibaya and Associates who subsequently came into the picture
sometime thereafter. Then there is the notification of the takeover
by Mawere and Sibanda from Muchandibaya and Associates the
respondent's current practitioners that is also not on file.
In
the result, applicant assumed, albeit erroneously, that Muchandibaya
and Associates were still handling the matter.
Her
opposition did not find its way to Mawere and Sibanda
and
the matter was heard as unopposed.
Once
she got knowledge of the judgement she acted swiftly to seek its
rescission.
I
find that the default was not wilful and that the applicant is bona
fide in her application to rescind.
On
the bona
fides
of the applicant's defence to the claim and whether it has some
prospects of success if the matter is rescinded, again I find that
the weight of the evidence appears to favour her claim.
The
basis of respondent's application against which rescission is
sought, was that it had not been accorded a right to be heard.
As
I have earlier remarked, this is not supported by the papers placed
before the court since the arbitrator put the postponement in
writing. The notice was received and signed for at the respondent's
offices.
Applicant
in my view has some prospects of success in challenging the
respondent's claim.
I
proceeded in my analysis of this application on the basis that the
matter against which rescission is sought was properly brought before
the High Court by the respondent.
Applicant
in her heads of argument also argued that the primary matter had been
improperly brought before this court.
The
crux of her averment is that the proper forum for an application to
set aside an arbitration award is the Labour Court.
Indeed
various decisions of this court have canvassed the increased
jurisdictional issues as well as the specialist nature and
positioning of the Labour Court in labour matters in relation to the
High Court. This followed in particular amendments to the Act such as
No.17 of 2002 and Amendment No.7 of 2005: see Tuso
v City of Harare
2004
(1) ZLR 1 (H);
Zimtrade
v Makaya
2005
(1) ZLR 427;
Delta
Corporation t/a Delta Beverages v Lovett Mabhumbo
HB34/07;
Dlodlo
v Deputy Sherriff of Marondera & Ors
HH76-11;
Benson
Samudzimu v Dairiboard Holdings
HH204-10.
Where
specific statutes apportion responsibility and authority for hearing
certain matters, it is indeed vital for the swift administration of
justice that the jurisdiction accorded any specific courts be
recognised, respected and enforced.
Clarity
on the part of the legislature in according such jurisdiction is
equally important as its absence can result in overlapping
jurisdiction.
A
key issue in this regard is whether the jurisdiction of the High
Court pertaining to setting aside arbitration awards in labour
matters is now indisputably the strict preserve of the Labour Court
or whether the High Court maintains its jurisdiction.
This
issue arises in light of the wording of the applicable provision that
deals with this issue.
The
relevant provisions of Article 34 of the Unicitral Model Law,
Arbitration Act [Cap
7:15]
upon which the respondent brought the matter to the High Court reads
as follows:
“Application
for setting aside as exclusive recourse against arbitral award
(1)
Recourse to a court against an arbitral award may be made only by an
application for setting aside in accordance with paragraphs (2) and
(3) of this Article.
(2)
An arbitral award may be set aside by the High
Court
only
if…..
(i)….
(ii)
the party making the application was not given proper notice of the
appointment of the arbitrator or the arbitral proceedings or was
otherwise unable to present his case; or
(iii)………………..
………..
…………
…………
(4)
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)………
(b)
a breach of the rules of natural justice occurred in connection with
the making of the award.
Section
5(2) of the Arbitration Act which addresses the application of the
Arbitration Act under other enactments is also vital. It is couched
as follows:
(2)
Where an enactment provides for the determination of any matter by
arbitration, the provisions of that enactment, to the extent that
they are inconsistent with this Act, shall prevail.”
The
provisions of Article 34 have found specific commentary in case law.
For
instance CHIWESHE JP, in the case of Benson
Samudzimu (supra)
remarked
as
follows with specific reference to Article 34 and 36 of the
Arbitration Act:
“I
agree with the applicant that the correct interpretation would be
that, with regards the law, the Labour Act takes precedence over the
Arbitration Act or any other enactment. The intention of the
legislature was to have all labour matters initiated and resolved to
finality in terms of the Labour Act. Equally, the legislature must
have intended that such matters be dealt with by the Labour Court to
the exclusion of any other court. Sections 34 and 36 of the
Arbitration Act are not applicable in cases where the award sought to
be challenged is a labour dispute. The mechanisms for challenging
awards are provided for in the Labour Act and may be accessed through
the medium of the Labour Court. No other court has jurisdiction to
entertain such matters.”
This
approach towards interpreting the enhanced powers of the Labour Court
occasioned by legislative intervention helps to streamline and direct
labour matters towards this court. However, Article 34 still
specifically mentions the High Court in no uncertain terms as the
forum for applying for the setting aside of an arbitral award.
The
purported ouster of the High Court's jurisdiction in labour matters
while the provision remains couched as it is, is doubtful.
In
my view there is no inconsistency between the jurisdictional
provisions of the Labour Act on issues relating to arbitration and
the provisions of Article 34 that would justify the invocation of
section 5 of the Arbitration Act.
I
say this because the issues envisaged in Article 34 for setting aside
an award are not dealt with elsewhere in the Labour Act.
Indeed
it is for this reason that Munyaradzi Gwisai, a labour scholar,
attempts to argue at p234 of his book on Labour Law in Zimbabwe that
appeals on questions of law as stipulated in section 98(10) of the
Labour Act, encompass the kind of issues envisaged by Article 34.
To
quote him:
“Where
the making of an award is in violation of grounds specified under
article 34 of the Model law, discussed above, such violation
qualifies the appeal as being on a question of law.”
The
essence of his interpretation is that it is to the Labour Court,
under appeals on question of law, that any matter relating to the
award under Article 34 should be brought.
In
my view such an interpretation, while clearly recognising the
specialist role of the Labour Court, is nonetheless a contortionist
way of locating jurisdiction within the Labour Court for setting
aside arbitral awards.
Given
its specific wording, and in the absence of a specific ouster through
an amendment clarifying the non-application of Article 34 to labour
matters, the jurisdiction of the High Court in such issues cannot be
said to have been ousted.
There
is nothing that stops the legislature from effecting the desired
clarity in the interests of the smooth administration of justice in
labour matters if indeed its intention was and is to exclude these
from the ambit of the provision of Article 34 in favour of the Labour
Court. See De
Wet v Deetlefs
1928
AD 286 at p290 where SOLOMON CJ remarked as follows:
“It
is well a recognised rule in the interpretation of statutes that, in
order to oust the jurisdiction of a court of law, it must be clear
that such was the intention of the legislature”.
Pending
such clarity to the application of Article 34 in labour matters,
litigants such as the respondent who have sought audience in the High
Court to set aside an arbitral award cannot be said to be accidental,
unwelcome visitors.
In
the result, I therefore make the following order:
1.
The judgement of this Honourable Court under case No. HC11439/12 be
and is hereby rescinded.
2.
There is no order as to costs.
Mawere
& Sibanda,
respondent's
legal practitioners
1.
Munyaradzi
Gwisai Labour
and Employment Law in Zimbabwe: Relations of Work under Neo Colonial
Capitalism
(Harare:
Zimbabwe Labour Centre and Institute of Commercial Law, UZ 2006) at
p234
