1.
CHIGUMBA
J:
At the hearing of this matter, I granted the application for
registration of an arbitral award with costs on an ordinary scale.
I
gave brief reasons for the judgment, being of the view that the law
that governs the question of whether the noting of an appeal against
an arbitral award suspends the operation of the award is settled and
that there was no evidence that respondent could successfully rely
on, to challenge the registration applied for.
I
have now been asked to provide detailed reasons for judgment. These
are they.
2.
The applicant sought the registration of a Labour Arbitral award
handed down in compulsory arbitration proceedings on 23 November
2012, by Ms E. Maganyani.
In
terms of section 98(14) and (15) of the Labour Act, any party to whom
an arbitral award relates may submit it for registration to a court
of corresponding monetary jurisdiction.
Applicant
was awarded various sums of money totalling US$19,125-00, plus
interest thereon at the prescribed sum calculated from the date of
the arbitral award to the date of payment in full.
3.
In his founding affidavit he averred that as at the date of his
application for registration of the Arbitral award, 7 December 2012,
the respondent had failed, refused or neglected to pay this sum.
Registration of the Arbitral award was sought for purposes of
enforcement. The application was served on the respondent on 10
December 2012.
4.
Respondent filed a notice of opposition on 19 December 2012. The
grounds of opposition were, firstly, that the applicant was never its
employee, but a mere contractor; secondly that there was need for
oral evidence from both parties, and thirdly that no quantification
was done by both parties. The last reason for opposing the
registration of the Arbitral award was that the respondent had since
appealed to the Labour Court against the decision of the Arbitrator,
on points of law. The details of the appeal were attached to the
notice of opposition.
5.
Applicant filed his answering affidavit on 16 April 2013. He attached
copies of both parties written submissions which had been submitted
to the Arbitrator, to counter the allegation by respondent that it
had been denied an opportunity to be heard by the Arbitrator. He
denied having been a contract worker, and reiterated that he fitted
the statutory definition of employee, as set out in the Labour Act.
He averred that respondent had deliberately chosen not to attend the
date of the hearing by the Arbitrator, despite being notified of it.
He reiterated that the Arbitrator was asked to determine the matter
on the basis of the papers filed of record when respondent failed to
respond to the notice of set down of the hearing. He alleged that the
respondent's appeal to the Labour Court was fatally defective,
being filed out of time, and alleged that the opposition to the
registration of the Arbitral award was an attempt by respondent to
frustrate him and delay in paying him his dues.
6.
At the hearing of the matter both parties abided by their heads of
argument and had nothing of value to add.
Applicant
submitted that the issue that the court ought to determine was
whether the Arbitral award made on 23 November 2012 can be registered
as an order of this court for purposes of enforcement.
I
agree with that submission, and note that the issue is purely one of
law.
Applicant
sought to raise a point in limine via its heads of argument that the
deponent to the opposing affidavit was not duly authorized to
represent the respondent.
He
relied on the following cases as authorities for that proposition:
United Associates (Pvt) Ltd v Est Ncube & Ors HC29/03; Madzivire
Enterprises (Pvt) Ltd v Schweggman Family Trust HB2/07.
7.
He submitted that the court proceed on the basis that there was no
opposition before it.
Respondent,
in opposing the point in limine submitted it was a duly registered
company and that the deponent to the opposing affidavit was its
managing director who was duly authorized to depose to the affidavit.
8.
Respondent submitted that, while it is correct that an application
stands or falls on its founding affidavit, there are exceptions to
that rule when it comes to the capacity of a company representative
that was involved in the main matter and whom both parties know to be
a duly authorized company representative from previous dealings.
Respondent
relied on the case of Air Zimbabwe Corporation & Ors v Zimra
HH-96-03 and on Mall Cape (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2)
SA 347 where the court stated that:
“…the
best evidence that the proceedings have been properly authorized
would be provided by an affidavit made by an official of the company
annexing a copy of the resolution but I do not consider that form of
proof as necessary in every case. Each case must be considered on its
own merits and the court must decide whether enough has been placed
before it to warrant the conclusion that it is the applicant which is
litigating and not some unauthorized person on its behalf”.
9.
A perusal of the papers filed of record will show that the
applicant's objection is not that the deponent to respondent's
opposing affidavit is not known or is a stranger to the respondent.
The objection appears to be that no averment was made in the opposing
affidavit that the deponent was duly authorized to represent the
respondent in the proceedings.
10.
In my view such an objection should be raised only in those instances
where the deponent to the affidavit on behalf of a company is a total
stranger.
In
this case I am satisfied that the parties all knew each other from
previous dealings, and from proceedings in the main matter, and that,
there can be no question of the deponent to the opposing papers being
a stranger to respondent company, or to the applicants.
The
point in limine is dismissed on that basis.
11.
In regards to the merits of the matter applicant contended that an
Arbitral award which has not been set aside or in respect of which
execution has not been stayed must be registered as a matter of
course.
He
relied on the case of Greenland v Zimbabwe Community Health
International Research Project HH-93-13, as authority for that
proposition where the court stated that, at page 3:
“where
an award is not stayed or suspended in terms of section 92E(3) of the
Labour Act, the court will, as a matter of principle, register the
award unless there are grounds as provided for in Article 36 of the
Model Law contained in the Arbitration Act [Chapter 7:15]. Article 36
of the Model Law, a schedule to the Arbitration Act [Cap 7;15]
provides the grounds on which challenges to the registration of
Arbitral awards may be mounted. Article 35 provides that arbitral
awards shall be recognized as binding and shall be enforced subject
to its provisions and to the provisions of article 36.”
12.
Respondent challenged the registration of the Arbitral award on the
basis that it was denied an opportunity to be heard, which falls
under Article 36(1)(a)(ii) of the Model Law: that is:
“(1)
Recognition or enforcement of an arbitral award, irrespective of the
country in which it was made, may be refused only at the request of
the party against whom it is invoked, if that party furnishes to the
court where recognition or enforcement is sought proof that —
(i)…
(ii)
the party against whom the award is invoked was not given proper
notice of the appointment of an arbitrator or of the arbitral
proceedings or was otherwise unable to present his case; or” (my
underlining for emphasis)
13.
And/or Article 36(3) which provides that:
“(3)
For the avoidance of doubt and without limiting the generality of
paragraph (1)(b)(ii) of this article, it is declared that the
recognition or enforcement of an award would be contrary to the
public policy of Zimbabwe if the making of the award was induced or
effected by fraud or corruption; or a breach of the rules of natural
justice occurred in connection with the making of the award.”
14.
In my view it was open to respondent to argue that the registration
of the Arbitral award was contrary to public policy because there was
a breach in the rules of natural justice in the making of the award:
Article 36(3)(b).
Respondent
unfortunately, did not make specific reference to article 36.
Respondent
contended that it was not afforded an opportunity to present oral
evidence on the quantification of the entitlements awarded, in clear
breach of the rules of natural justice, rendering the decision making
process unprocedural.
This
implies that respondent was invoking the provisions of Article
36(1)(a)(ii).
15.
It is trite that the onus of proving that inadequate notice of the
hearing was not given is on the respondent.
Respondent
is required to furnish the court with proof that it was not given
adequate notice of the set down of the Arbitration proceedings,
resulting in an inability to present its case. The onus was on the
respondent to furnish the court with proof that the arbitrator
breached the rules of natural justice.
In
my view, respondent failed to provide any such proof in its papers
filed of record.
There
was no averment made in the opposing affidavit that the arbitrator
proceeded without affording respondent an opportunity to be heard. In
paragraph 3, Leipeng Wang, the deponent to the opposing affidavit
states that:
“The
arbitrator erred in her finding; the quantification was not done by
both parties, besides the fact that there is need for viva voce
evidence from both sides…”
16.
This is the only averment made which remotely resembles the
allegation that the arbitrator proceeded contrary to the rules of
natural justice.
In
my view, this bald assertion is insufficient and does not even amount
to prima facie evidence that the rules of natural justice were
breached.
No
attempt is made to explain why the arbitrator proceeded on the basis
of the parties written submissions, or to refute the allegation that
respondent failed to attend two scheduled hearings before the
arbitrator and did not provide any explanation as to why they failed
to attend.
17.
Applicant filed a statement of claim, a copy of which is attached to
the papers filed of record, dated October 2011, and which contains a
breakdown of its claim. On 12 October 2012, respondent filed written
submissions with the arbitrator. Applicant, then the claimant filed
his written submissions in August 2012. Applicant wrote a letter to
the arbitrator dated 11 October 2012 confirming that the arbitration
had been determined on the 28th of September 2012, in default of
appearance by the respondents.
Paragraph
2 of that letter stated that:
“I
confirm that you have informed us that respondent's Legal
Practitioner wrote a letter on the same day of hearing requesting for
a postponement but it was received by yourself after the day of the
hearing. I therefore request you, honorable that this matter be
determined on written submissions. This request is made in view of
the fact that respondent has made requests to postpone the matter
twice now and to avoid these postponements which I view as delaying
tactics, if you may give them time to file their written
submissions…”
18.
The letter was copied to the respondent's legal practitioners of
record, and served on them, on 11 October 2012.
Applicant
wrote to the respondent and attached a copy of the arbitral award on
27 November 2012.
Respondent
appealed against the arbitral award on 15 January 2013.
19.
The dilemma that arises in this case is that the respondent did not
place any evidence before the court, which it could rely on to
determine the veracity of its contention that it was denied an
opportunity to be heard.
Applicant
averred that respondent deliberately failed to attend two hearings
set down before the arbitrator, resulting in the applicant and the
arbitrator agreeing that the matter simply be disposed of on the
basis of the papers filed of record.
20.
This averment unfortunately was not denied by the respondent in its
opposing papers.
Respondent
was not heard orally, but it had placed its written submissions
before the arbitrator. Applicant was also not heard orally, on the
merits of the matter.
21.
Article 19 of the Model Law provides that:
“ARTICLE
19 Determination of rules of procedure
(1)
Subject to the provisions of this Model Law, the parties are free to
agree on the procedure to be followed by the arbitral tribunal in
conducting the proceedings.
(2)
Failing such agreement, the arbitral tribunal may, subject to the
provisions of this Model Law, conduct the arbitration in such manner
as it considers appropriate.
The
power conferred upon the arbitral tribunal includes the power to
determine the admissibility, relevance, materiality and weight of any
evidence.”
22.
Based on the provisions of Article 19, I find that it was entirely
proper and permissible for the Arbitrator and the applicant to agree
on the procedure to be followed.
The
Arbitrator was even at liberty, to conduct the arbitration in such
manner as it considered appropriate if the parties failed to agree on
which procedure could be used (Article 19(2)).
The
power conferred on the tribunal included the power to: “determine
the admissibility, relevance, materiality and weight of any
evidence.”
There
is nothing in the papers filed of record which suggests that the
arbitrator did not have these powers.
23.
A reading of the Arbitral award will show that the arbitration
proceeded by way of written submissions. The reason why this happened
is clearly endorsed on page 2 thereof. The basis of the claim is
clearly set out, as well as details of the entitlements and the
calculation of dues. The arbitrator considered the question of
whether the applicant was an employee of the respondent and if so,
the extent of what he was entitled to.
If
the arbitrator erred in any way in these findings and calculations,
the Labour Court will determine that on appeal.
The
High Court does not concern itself with the merits or otherwise of
the appeal, it will register the arbitration award unless, a defense
in terms of articles 35 and 36 of the model law is pleaded and
proved, or the arbitral award is suspended by the Labour Court, or
stay of execution has been granted by the Labour Court.
I
have already found that Respondent is not entitled to invoke any of
the provisions of Articles 35 and 36 of the Model Law in order to
prevent the registration of the Arbitral award.
24.
Does
the fact that an appeal has been noted against an arbitral award to
the Labour Court preclude the High Court from registering the award
for purposes of enforcement?
Section
98(14) of the Labour Act [Cap 28: 01] provides for the registration
of Arbitral awards to any court of corresponding monetary
jurisdiction, for purpose of enforcement.
Section
92E, which governs appeals to the Labour Court generally, provides
that:
“92E
Appeals to the Labour Court generally
(1)
An appeal in terms of this Act may address the merits of the
determination or decision appealed against.
(2)
An appeal in terms of subsection (1) shall not have the effect of
suspending the determination or decision appealed against.
(3)
Pending the determination of an appeal the Labour Court may make such
interim determination in the matter as the justice of the case
requires.”
25.
It is trite therefore that an appeal to the Labour Court, against the
merits of a decision does not suspend the operation of the decision
appealed against. See Gaylord Baudi v Kenmark Builders (Private)
Limited HH-4-12; Elvis Ndluvu v Higher Learning Centre HB-86-10;
Net-One Cellular (Pvt) Ltd v Net-One Employees & Anor 2005 (1)
ZLR 275; DHL International Ltd v Clive Madzikanda HH-51-10; Benson
Samudzimu v Dairibord Holdings HH-204-10.
This
is expressly provided for in section 92E of the Labour Act.
There
is a school of thought that adheres to the supposition that, an
arbitral award being tantamount to an award by a tribunal, or an
inferior court cannot be suspended by the noting of an appeal for the
simple reason that, at common law, only decisions of superior courts,
courts of inherent jurisdiction, are automatically, suspended by the
noting of appeal.
The
simplicity of this argument appeals to me.
It
would appear that the Labour Act, in section 92E, sought to reinforce
that common law position.
However,
all is not lost, as the Labour Act provides a pressure valve, in the
form of a medley of interlocutory remedies that can be employed
pending determination of an appeal.
26.
Section 92E(3) provides that a Labour Court, may, pending the
determination of the appeal, make interim orders that meet the
justice of the case. Stay of execution pending appeal, suspension of
the arbitral award, are but some of the interim remedies that may be
sought before the Labour Court pending determination of an appeal.
Respondent
has not availed itself to any of these remedies.
Instead,
it opted to impliedly cloak itself with two defenses against the
registration of an arbitral award provided for in the Model Law, in
an attempt to prevent registration of the Arbitral award.
27.
None of those defenses are available to the respondent because of the
paucity of evidence to sustain them.
For
these reasons, the following order is made:
(i)
The award made on the 23rd November 2012 the arbitrator Ms. E.
Maganyani, be and is hereby registered as an order of this court.
(ii)
Respondent shall pay costs of suit.
Nyamushaya,
Kasuso & Rubaya, applicant's legal practitioners
Tavenhave
& Machingauta, respondent's legal practitioners
