Opposed
Matter
MATANDA-MOYO
J:
On 4 February 2014 I issued the following order in favour of the
applicants:
(1)
That the arbitral award of the arbitration tribunal granted by
Honourable C.T. Kadenga on 19 February 2014 in favour of the
applicants be and is hereby registered as an order of this court.
(2)
That Respondent be and is hereby ordered to pay the sum of $20,790-00
(twenty thousand seven hundred and ninety dollars) to each applicant
in terms of the operative part of the award.
(3)
That Respondent be and is hereby ordered to pay the costs of suit.
I
have been requested to give reasons and these are they;
This
is an application for registration of an arbitral award in terms of
section 98(14) of the Labour Court Act [Chapter
28:01].
The applicants obtained an arbitral award in their favour on 19
February 2014 in the following:
(a)
That the respondent pay $15,785-00 to each applicant as back pay;
(b)
That respondent pay $155-00 to each applicant as cash in lieu of
leave; and
(c)
That the respondent pay $3,850-00 to each applicant as damages in
lieu of reinstatement.
The
respondent opposed the registration of the award on the basis that
the award was not authenticated as original. The respondent also
argued that no arbitration agreement nor referral to arbitration
documents were attached to the application in compliance with the
Arbitration Act [Chapter
7:15].
The
respondent challenged the application in the face of an appeal
pending before the Labour Court.
The
respondent submitted that it noted an appeal before the Labour Court
and such appeal has the effect of suspending the arbitral award. Once
the arbitral award is suspended it follows that it could not be
registered.
It
is respondent's case that the arbitral award sought to be
registered is patently wrong and contrary to public policy in that it
was issued without the respondent having been given an opportunity to
make representations.
The
applicants challenged the authority of H. Maticha in deposing to an
affidavit on behalf of the respondent without authorisation.
The
respondent is a legal persona and any person purporting to act on its
behalf must do so on the strength of resolution from the company
directors.
Let
me deal with the issue whether H. Maticha's affidavit is properly
before the court.
It
is trite that a person purporting to represent a company must
establish his authority to do so: see Thelma
Court Flats (Pvt) Ltd v McSwigin 1954 (3) SA 457 (C); John Strong
(Pvt) Ltd and Anor v Wacheauka
(1)
2010 (1) ZLR 151 (H).
In
the matter in
casu
it is common cause that H. Maticha is the Human Resources Manager of
the respondent. In his affidavit he alluded to the fact that he is
duly authorised to depose to the affidavit.
He
did not attach the resolution authorising him to so act.
It
is trite that failure to attach a Board Resolution authorising a
deponent of an affidavit to so act is not fatal to the proceedings.
As long there is evidence that it is the company litigating the
courts should not dismiss an application.
In
the present case the applicants have not shown prima
facie
that H. Maticha was litigating on his own behalf. The resolution by
the company need not be attached in each and every case. See Mall
(Cape) (Pvt) Ltd v Meriwo Ko-Operaise Bpk 1957 (2) SA 347 (C);
Poolquip Industries v Griffin and Anor 1978
(4) SA 353.
The
respondent opposed the granting of the relief sought on the basis
that it appealed against the arbitral award that the applicant sought
to register.
The
respondent did not attach any proof of the appeal.
The
applicants denied that such an appeal has been noted.
Even
agreeing with the respondent that such appeal was noted, the position
of the law is clear.
An
appeal against an arbitral award to the Labour Court does not suspend
the award appealed against. The appellant still has to seek the
suspension of the award pending the appeal.
There
is no evidence before me that such a relief was obtained prior to the
hearing of this matter.
The
applicants referred me to the case of Joseph
Tapera and 17 Ors v Field Spark Investments (Pvt) Ltd
HH102/13
where Justice Mathonsi quoted with approval his earlier observation
in Greenland
v Zimbabwe Community Health Intervention Research Project (Zichre)
HH93/13
at p3, that:
“A
party which finds itself faced with an arbitral award it is
challenging should take advantage of the provisions of section 92E(3)
of the Labour Act [Chapter
28:01]
which empowers the Labour Court to make an interim determination for
the stay or suspension of an arbitral award. Where the award has not
been stayed or suspended in terms of section 92E(3) and remains
extant, this court will, as a matter of principle, register the award
for enforcement unless there are grounds for not doing so as provided
for in Article 36 of the model law contained in the Arbitration Act
[Chapter
2:15]”.
I
am of view that the respondent has failed to show that it noted an
appeal to the Labour Court.
Even
if such appeal was noted the respondent has not obtained an order
staying or suspending the execution of such award. The mere noting of
an appeal to the Labour Court does not have the effect of suspending
the arbitral award.
The
respondent also challenged the award as not being authentic.
I
am not persuaded by that argument as the arbitral award produced
before this court is certified.
The
respondent also opposed the registration of the award in that the
award is patently wrong and contrary to public policy.
The
respondent submitted that it was not given an opportunity to make
representations by the Arbitrator.
The
doctrine of public policy was dealt with by Gubbay CJ (as he then
was) in the case of ZESA
v Maposa
1999
(2) ZLR 452 at 453C-E;
“The
approach to be adopted is to construe the public policy defence as
being applicable to either a foreign or domestic award, restrictively
in order to preserve and recognise the basic objective of finality in
all arbitration, and to hold such defence applicable only if some
fundamental principle of law or morality or justice is violated. An
award will not be contrary to public policy merely because the
reasoning or conclusion of the arbitrator are wrong in fact or in law
where, however, the reasoning or conclusion in an award goes beyond
mere faultiness or incorrectness and constitute a palpable inequity
that is so far reaching and outrageous in its defiance of logic or
accepted moral standards that a sensible and fair minded person would
consider that the conception of justice in Zimbabwe would be
intolerably hurt by the award, then it would be contrary to public
policy to uphold it. The same consequences apply where the arbitrator
has not applied his mind to the question or has totally misunderstood
the issue, and the resultant injustice reaches the point mentioned”.
It
is correct in terms of Article 34(2) of the United Nations Commission
of International Trade Law (UNICITRAL) Model Law Schedule to
Arbitration Act [Chapter
7:15],
that this court can set aside an award if it finds that the award is
in conflict with public policy of Zimbabwe.
Similarly
this court can refuse to register an award which is contrary to
public policy.
A
look at the proceedings before the Arbitrator would show that the
respondent was represented on both occasions. It is not correct that
the respondent was not given an opportunity to present its case. The
award speaks for itself.
It
is my finding that that submission by the respondent is incorrect.
It
is also my view that the respondent has failed to show that the award
is patently wrong.
In
the result I am satisfied that the applicant has met all the
requirements for registration and the award is hereby registered as
an order of this court as per my order of 4 February 2014.
Mahuni
and Mutatu,
applicants legal practitioners
Wintertons,
respondent's legal practitioners
