Opposed
Application
MATHONSI
J:
This is an application for the registration of an arbitral award
issued by J Mambara, an arbitrator, on 21 October 2014 in terms of
which the respondent was directed to pay the applicant a sum of
$43,800-26 plus interest at the rate of 5 per cent per annum from 30
September 2012 and costs of suit on a legal practitioner and client
scale.
The
arbitration was conducted in terms of an arbitration clause in the
agreement of the parties.
The
amount in question is the purchase price of farming inputs sold and
delivered to the respondent, a farmer.
The
reasons for opposing the application as appears from the opposing
affidavit of the respondent are tenuous to say the least.
They
are that the deponent of the founding affidavit, Loveness Ngwaga,
despite stating in the affidavit that she is authorised to depose to
the affidavit as the applicant's legal officer, does not have such
authority because she has not attached a company resolution to that
effect. While admitting that he owes the applicant the money, the
respondent asserts that the “award is unregisterable for want of
proper identity” in that the arbitration was done in terms of the
Arbitration Act [Chapter
7:15]
but the arbitrator went on to issue a certificate in terms of section
98(13) of the Labour Act [Chapter
28:01].
For
those 2 reasons the respondent urged of me the dismissal of the
application with costs.
The
respondent has not shown that it is not the applicant that is
litigating but an unauthorised person. All he wants is a dismissal of
the application because a resolution of the board of directors of the
applicant has not been produced.
It
is now fashionable for respondents who have nothing to say in
opposition to question the authority of the deponent of a founding
affidavit in order to appear to have a defence.
I
stand by what I stated in African
Banking Corporation of Zimbabwe Ltd t/a Banc ABC v PWC Motors (Pvt)
Ltd and Others
HH123/13 that the production of a company resolution as proof that
the deponent has authority is not necessary in every case as each
case must be considered on its merits; Mall
(Cape) (Pty) Ltd v Merino Ko-opraise Bpk
1957 (2) SA 345 (C).
All
the court is required to do is satisfy itself that enough evidence
has been placed before it to show that it is indeed the applicant
which is litigating and not an authorised person.
Indeed,
where the deponent of an affidavit has said that she has the
authority of the company to represent it, there is no reason for the
court to disbelieve her unless it is shown evidence to the contrary
and where no such contrary evidence is produced, the omission of a
company resolution cannot be fatal to the application.
That
is as it should be because an affidavit is evidence acceptable in
court as it is a statement sworn before a commissioner of oaths.
Where
it states that the deponent has authority, it can only be disbelieved
where there exists evidence to the contrary. It is not enough for one
to just challenge the existence of authority without more as the
respondent has done.
I
conclude therefore that there is no merit in the respondent's first
line of defence relating to lack of authority.
The
second line of opposition relates to the unfortunate and patently
erroneous certificate issued by the arbitrator, clearly outside the
arbitration process, in terms of section 98(13) of the Labour Act
[Chapter
28:01].
Mr
Mambara must be so used to arbitrating labour disputes that he
quickly generates that certificate like an automaton, a machine
without feeling. There was no need for him to issue a certificate in
the first place because the arbitration was not in terms of the
Labour Act but in terms of the Arbitration Act.
The
question however is whether the unsolicited certificate which the
applicant unwittingly attached to the application, nullified the
award.
Of
course the respondent gladly latched onto it, it having been
Christmas come early for a litigant which had no other defence to the
application.
I
think not.
The
certificate was as unnecessary in the scheme of things as it was a
nullity. It cannot even rub off its null effect onto an arbitral
award property issued as suggested by Mr Makwanya
for
the respondent.
In
terms of art 36 of the Model law contained in the Arbitration Act
[Chapter
7:15]
the recognition or enforcement of an arbitral award may only be
refused at the request of the party against whom it is invoked if
that party can show proof that:
1.
A party to an arbitral award was under some incapacity or the
agreement was invalid under the law to which the parties subjected it
to or under the law of the country.
2.
The party was not given proper notice of the appointment of an
arbitrator or the proceedings or was otherwise unable to present his
case.
3.
The award deals with a dispute not contemplated or not falling within
the terms of reference to arbitration.
4.
The composition of the arbitral tribunal was not in accordance with
the agreement or the law of the country.
5.
The award has not yet become binding on the parties or has been set
aside or suspended by a court of law.
6.
The court finds that the subject matter of the dispute is not capable
of settlement by arbitration under Zimbabwean law or recognition or
enforcement will be contrary to the public policy of Zimbabwe.
See
Tapera
and Others v Fieldspark Investments (Pvt) Ltd
HH102/13;
Zesa
v Maposa
1999
(2) ZLR 455 (S) 466E; Delta
Operations v Origen Corp (Pvt) Ltd
2007
(2) ZLR 81 (S) 85C-D.
The
respondent has not set out any of the above grounds for refusal to
recognise or enforce an arbitral award.
It
would be stretching logic to elasticity limit to hold that the
inclusion of an invalid and extremely unnecessary certificate
purportedly issued in terms of in irrelevant statute, amounts to
saying that the award itself deals with a dispute, not contemplated
or not falling within the terms of reference of the arbitration as
the respondent would want to insinuate.
That
certificate remained outside the award and exceedingly useless.
In
the result, it is ordered that:
1.
The arbitral award dated 21 October 2014 by the Honourable J Mambara
be and is hereby registered as an order of this court.
2.
The respondent shall bear the costs of this application.
Muvirimi
Law Chambers,
applicant's legal practitioners
Zimbodza
& Mugwagwa,
respondent's legal practitioners
