GOWORA
JA:
As
a result of runaway inflation and the sliding value of the local
currency, in February 2009 the Government of Zimbabwe adopted the
multi-currency regime as a mode of conducting financial transactions.
Salaries
that had been pegged on the local currency lost buying power in the
hands of the recipients. It became necessary to renegotiate salaries
and benefits across the board with the unions representing the
appellant's employees.
In
casu
the
parties were unable to agree on a minimum wage and allowances. It was
resolved to submit the dispute to voluntary arbitration through the
Commercial Arbitration Centre.
On
13 January 2010, the Commercial Arbitration Centre in Harare
appointed MP Mahlangu ('the arbitrator') to arbitrate the dispute
between the parties.
After
hearing the parties, on 23 February 2010 the arbitrator issued an
award in the following terms:
“For
the period between 1 May and 31 August 2009, the salary of the lowest
earning employee of the respondent company should receive an
adjustment of US$25 in respect of each month, and for the period
between 1 September and 31 December 2009 a further US$25 adjustment
should be effected. The effect of this on the lowest earning employee
of the respondent is that in total the back-pay payable to him or her
will be US$300.
In
doing this I realise that further financial strain will be added to
the respondent but believe that this is necessary in fairness to the
claimant.”
(my emphasis)
The
appellant was aggrieved by the award and on 17 May 2010 it filed a
Court Application in the High Court.
Attached
to the court application under separate cover was what was termed an
Application For Review. One of the grounds upon which the review was
sought was “that
the arbitral award was in conflict with the public policy of
Zimbabwe”.
(My underlining).
The
respondent filed papers in opposition in which it raised a number of
preliminary issues on alleged procedural irregularities appearing on
the papers.
When
the matter was heard, the High Court upheld the objections raised by
the respondent and on 1 December 2010 the court a
quo
dismissed the application without determining the merits of the
dispute.
This
appeal is against the dismissal.
In
the court a
quo,
the respondent relied on the following points in
limine:
1.
That the application was fatally defective in that it was not clear
whether or not it was a court application or an application for
review;
2.
That in the event that it was an application for review, the
application did not comply with the provisions of Order 33 of the
rules of the High Court and the court should find that it was filed
out of time;
3.
That if it was a review the arbitrator ought to have been cited as a
party to the proceedings;
4.
That in any event, an arbitral award is not subject to review and the
High Court lacks the jurisdiction to review an arbitral award outside
the provisions of the Arbitration Act [Chapter
7:15],
(the “Act”).
In
upholding the preliminary issues the learned judge in the court a
quo
said:
“In
the instant case, the application, as already pointed out above, was
one for review of the arbitral award up until the stage of the
applicant's Heads of Argument when a u-turn was made in a vain
endeavour to clothe it with a semblance of one made in terms of
Article 34 of the Model Law. Indeed, the respondent avers that there
is even an application before this Court in Case No. HC4120/10
seeking condonation for the late filing of this review. I did not
hear the applicant to dispute this assertion. It goes without quarrel
that a wrong form for this application was adopted.
Even
assuming that the application was permissible in terms of Order 33 of
the High Court Rules it would still fail to scale the insurmountable
difficulty besetting it for flagrantly flouting provisions of Order
33.
Rule
256 of Order 33 makes it imperative by the use of the word 'shall'
for an applicant to 'direct' the application to, inter alia, the
person whose decision is to be reviewed, viz,
the arbitrator.
The
applicant in
casu
did not cite the arbitrator. This omission is fatal to a review
application.
In
para 4.3 of its answering affidavit, applicant lamely tried to defend
this omission saying 'citing the arbitrator is not a rule cast in
concrete. Such non-joinder is not fatal to the proceedings. In any
event the relief sought is against the respondent only.'
Further,
an application for review in
casu
would also have been hamstrung by being lodged outside the 8 week
period permitted by the rules.
The
application does not comply with the requirements for an application
for review in that it does not state shortly and clearly the grounds
upon which an application for review would be sought in terms of
Order 33 of the Rules of the High Court.”
The
criticism that the learned judge in the court a
quo
placed more emphasis on form rather than substance cannot be denied.
It
is true that the format adopted in launching the application does
indeed cause confusion.
The
applicant appears to have merged two applications into one. There is
a court application to which is annexed an application for review,
thus creating the impression that the applicant to the process is not
confident of what form the intended proceedings should take.
Nevertheless
the application for review lists as one of the grounds of the
application that the arbitration award was in conflict with the
public policy of Zimbabwe.
That
is a ground for review which is peculiar to the Arbitration Act and
in particular Article 34(2)(b)(ii) of the Model Law incorporated in
the Act.
To
show the confusion under which the appellant's counsel was
labouring under, in the answering affidavit it is averred that the
application is one for review in terms of the said rules.
It
was only in the heads of argument that reference was made to the
Model Law.
Notwithstanding
reliance by the appellant on the Model Law as a basis for the
application, the court a
quo
was persuaded to find that what was before it was an ordinary review
which had been brought in defiance of the provisions of Order 33 of
the rules of the High Court.
Order
33 does not set out the grounds upon which a review may be launched.
It merely sets out the form an application should take and sets out
time limits for bringing such application.
The
grounds upon which a review may be brought are set out in the High
Court Act [Chapter
7:06],
in particular section 27 thereof which reads in relevant part:
“27
Grounds for Review
(1)
Subject to this Act and any other law, the grounds on which any
proceedings or decision may be brought on review before the High
Court shall be -
(a)
absence of jurisdiction on the part of the court, tribunal or
authority concerned;
(b)
interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part
of the authority concerned, as the case may be;
(c)
gross irregularity in the proceedings or the decision.
(2)
Nothing in subsection (1) shall affect any other law relating to the
review of proceedings or decisions of inferior courts, tribunals or
authorities.”
An
examination of the additional grounds upon which the applicant sought
reliance for relief points to those grounds as being an amplification
of the first ground rather than grounds of review under Order 33 of
the rules of the High Court.
None
of those grounds are such as contemplated by the High Court Act as
being grounds upon which the court could set aside any decision on
the basis of its powers of review.
The
conclusion by the court a
quo
to the effect that what was before it was an ordinary review was
therefore a misdirection.
The
issue that begs an answer is how the court a
quo
should have dealt with the matter given the apparent confusion that
had been created by the appellant in settling its papers.
An
application must be disposed of on the basis of the founding
affidavit.
The
only ground for review referred to in the affidavit is that the award
is contrary to the public policy of Zimbabwe.
Granted,
there is an averment within the affidavit to the effect that the
decision of the arbitrator was irrational but the statement is made
in the context of justifying the claim that the award was in conflict
with the law.
The
court a
quo
overlooked the dicta in ZESA
v Maposa
1999 (2) ZLR 452 (S) wherein GUBBAY CJ stated:
“Certainly,
for some reason not easy to comprehend, the application purported to
be in the nature of a review to the High Court rather than one
brought pursuant to Article 34(2)(b)(ii) of the Model Law.
Consequently, the ground justifying an order that the award be set
aside was specified as 'gross unreasonableness in the decision
arrived at.'
However,
one of the particulars given of such unreasonableness was that the
arbitrator had erred 'in holding that ZESA did not comply with
section 13(2) of the code of conduct.'
This
was to be read in conjunction with the earlier explanatory statement
of the chief executive that the application in which Maposa sought an
order that the looming disciplinary proceedings be held before an
independent arbitrator as opposed to the disciplinary committee of
the Board, caused such proceedings to be stayed.
When
so viewed it seems to me that the complaint by implication, sets out
the factual basis for the application to set aside the award as a
breach of Article 34(2)(b)(ii). This is how the learned judge
understood the contention and I do not think he was wrong.
Accordingly, I am not persuaded that the objection raised is valid.”
In
my view, these remarks apply with equal force to the facts of this
case.
The
facts as contained in the founding affidavit cried out for the
setting aside of the award on the basis that it was contrary to the
public policy of Zimbabwe.
Here,
rather than an implication of the relief being sought, there was a
statement identifying the basis upon which the award was being
challenged. There was no need for further amplification and the fact
that the applicant thereto described the application as one for a
review to the High Court did not change the substance of what it was.
The
applicant might have been confused as to the form that it was meant
to take but the legal principle upon which the award was challenged
was clearly stated and identified in the founding papers.
The
heads of argument filed in support of the application state clearly
and succinctly that the challenge to the award was predicated on the
ground that recognition of the award would be contrary to the public
policy of Zimbabwe.
The
essence of the application was not lost upon the learned judge who
commented that “…… the
gravamen of the application is essentially for the setting aside of
an arbitral award.”
(my underlining.)
It
becomes obvious that the learned judge understood the contention of
the application and premise upon which it had been brought. It is
then difficult to fathom the rationale for refusing to entertain the
same on the premise that it was a review to the High Court.
The
view I take is that there was no application for review before the
court a
quo.
What was filed was an application to set aside an arbitral award
under the Model Law.
It
was for these reasons that we allowed the appeal and issued an order
in the following terms:
“It
is ordered that:
1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a
quo
be and is hereby set aside.
3.
The matter is remitted for a determination on the merits by the same
judicial officer.”
MALABA
DCJ: I
agree
HLATSHWAYO
JA: I
agree
Mbidzo,
Muchadehama & Makoni,
appellant's legal practitioners
Honey
& Blanckenberg,
respondent's
legal practitioners
1.
At 462B-E
