Arbitration re: Approach, Proceedings Before an Arbitrator and Registration and Execution of Arbitral Awards

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HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

This is an application for stay of execution.

The first respondent was an Executive Dean in the Faculty of Commerce and Law of the applicant. At the end of his fixed term contract as Dean, a dispute arose on his status. The parties failed to agree on whether he automatically assumed his former post or whether his contract of employment was terminated.

Conciliation failed and the matter was referred to arbitration.

On 10 January 2011, the applicant was ordered to reinstate the first respondent as a Senior Lecturer, and, in the alternative, to negotiate his exit package in lieu of reinstatement. It was further directed that they approach the arbitrator if they failed to agree on the exit package.

On 2 February 2011, the applicant noted an appeal to the Labour Court against the arbitral award and applied for interim relief seeking the suspension of the award pending the appeal.

While these were pending in the Labour Court, the first respondent requested for the quantification of the exit package in lieu of reinstatement.

On 22 August 2011, the arbitrator quantified the amount in the sum of US$77,302.

On 26 September 2011, the applicant filed a combined application for review and an appeal with the Labour Court against the quantification.

On 27 September 2011, the first respondent, on notice to the applicant, applied in the High Court for the registration of the arbitral award. He served the applicant with the application for registration of the arbitral award on that date.

The applicant did not oppose the registration.

Instead, aware of the application in the High Court, it filed an urgent chamber application in the Labour Court, on 5 October 2011, seeking interim relief for the suspension of the arbitral award of 22 August 2011. The interim relief was granted by the Labour Court on 31 October 2011.

In the meantime, the award was registered by the High Court on 15 November 2011.

On 26 January 2012, the second respondent served a Notice of Attachment to remove the applicant's property for execution without any notice period.

The applicant launched the present application on 27 January 2012. I set it down for hearing on 1 February 2012.

The first respondent raised four preliminary points contesting the urgency of the matter.

I deal with each in turn.

(i) The first preliminary issue raised is on the authority of the deponent to the applicant's affidavit to depose to such an affidavit on behalf of the applicant.

Counsel for the first respondent submitted that where a natural person acts for an artificial person, he or she must establish the authority so to act. She relied on the sentiments expressed by ADAM J in Direct Response Marketing (Pvt) Ltd v Shepherd 1993 (2) ZLR 218 (H)…, part of a quotation in Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) ZLR 347 (C)…,.

Counsel for the applicant relied on the same quotation to argue that the first respondent had not established that the applicant is not properly before the court. The portion he relied on…, reads:

“The best evidence that the proceedings have been properly authorised would be to provide, by an affidavit, made by an official by the company, annexing a copy of the resolution, but, I do not consider that that form of proof is 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 un-authorised person on its behalf.

Where, as in the present case, the respondent has offered no evidence at all to suggest that the applicant is not properly before the court, then, I consider that a minimum of evidence will be required from the applicant: cf Parsons v Barkly East Municipality 1952 (3) SA 595 (E); Thelma Court Flats (Pty) Ltd v McSwigin 1954 (3) SA 457 (C)."

I am satisfied, that, to insist on a resolution from the applicant, that it resolved that the deponent file the founding affidavit on its behalf, would be carrying formality too far.

The applicant is the Director, Legal Services of the applicant.

Counsel for the first respondent conceded that she has, in previous litigation between the parties, filed founding affidavits on behalf of the applicant. There has been protracted litigation between the parties.

I am satisfied that the application is that of the applicant and not of the deponent to its founding affidavit.

The first preliminary point must fail.

(ii) The second preliminary issue was that the application was irregular in that on the face of it, it reads:

“Take notice that the applicant, Zimbabwe Open University hereby makes an application for interim relief pending the hearing of its appeal currently pending before this Honourable Court.”…,..

It proceeds to list seven bases for the application that demonstrate that it was an anomaly to aver in the preamble that the appeal was pending in this court. In addition, the founding affidavit clearly demonstrates that the first sentence in the preamble was in error.

Counsel for the applicant conceded the point but applied for condonation in terms of Rule 4C of the Rules of Court.

Counsel for the first respondent conceded that the court could condone the error.

I accordingly condoned the error and dismissed the second preliminary issue.

The last two preliminary points have unduly exercised my mind.

(iii) The third was that the applicant was coming to court with dirty hands.

The dirty hands policy was set out with clarity in Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity and Ors 2004 (1) ZLR 538 (S). The rationale for the rule being that a court of law cannot connive or condone open defiance of the law and that citizens are obliged to obey the law and argue afterwards.

The third preliminary point was based on the fact that when the Deputy Sheriff went to execute on the registered High Court order, the applicant stopped him by waving the interim relief granted by the Labour Court suspending the operation of the arbitral award pending appeal. The applicant proceeded to remove the items from the reach of the Deputy Sheriff before he could attach the property.

The contention by counsel for the first respondent was that the applicant deliberately frustrated the Deputy Sheriff from effecting a High Court order and thus acted in defiance of the High Court order.

As pointed out by GOWORA J, in Dhlodhlo v Deputy Sheriff Marondera & Ors HH76-11, it was improper to expect the Deputy Sheriff to choose sides by interpreting the law.

It was up to the applicant to bring an application such as the present to stop execution rather than defy the implementation of judgment that it did not oppose.

If the averment was correct, it is clear that the applicant had dirty hands.

Counsel for the applicant, however, argued that whether or not the Deputy Sheriff was stopped from attachment was a question of fact proved by evidence of his return of service.

In the absence of the return of service, or an affidavit from the second respondent, I am not prepared to non-suit the applicant.

I therefore dismiss the third preliminary point.

(iv) The last preliminary point was that the matter was not urgent.

The meaning of urgency has been spelt out in numerous cases. Some of the pertinent cases are Dexprint Investments (Pvt) Ltd v Property and Investments Company (Pvt) Ltd HH120-02 at p2 of the cyclostyled judgment quoted in full in Madzivanzira & Ors v Dexprint Investments (Pvt) Ltd & Anor 2002 (2) ZLR 316 (H)…,; Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H).

Counsel for the first respondent submitted that the applicant sat on its laurels and only acted when the day of reckoning was at hand. She contended that the applicant should have acted on 27 September 2011 when it was served with the notice of registration of the award.

Counsel for the applicant made contradictory submissions on the failure to oppose registration:

(i) The first was that the noting of an appeal in the Labour Court against the arbitral award automatically suspended the award.

(ii) The second was that it was hopeless to oppose without first obtaining interim relief from the Labour Court stopping the implementation of the arbitral award.

If the applicant believed that it was on firm footing on the first ground, then the more reason for it to oppose registration on that point.

But, as events that transpired after it obtained interim relief shows, the applicant believed that implementation could only be stayed by obtaining interim relief from the Labour Court. The applicant's erstwhile legal practitioner wrote as much to the applicant on 4 November 2011 and the applicant waved the interim relief at the second respondent on 26 January 2012.

Counsel for the applicant did not dispute counsel for the first respondent's submission that the applicant was aware of the judgment of Dhlodhlo v Deputy Sheriff Marondera & Ors HH76-11, handed down in Motion Court, on 8 March 2011, that, the Labour Court judgment could not stop a High Court order because the latter is a court of superior jurisdiction.

Accordingly, I agree with counsel for the first respondent, that, at the very least, with this foreknowledge, the applicant, knowing that the first respondent was seeking registration of the arbitral award, should have diligently searched for the outcome of the application, especially after it received the interim relief it sought, in order to forestall it.

It was aware that the purpose of seeking registration was to execute.

Armed with the interim order, the applicant was duty bound to either oppose the registration, which was only granted on 15 November 2011, or to file an application such as the present one soon thereafter.

I find that it waited until the day of reckoning precipitated by the attachment of 26 January 2012 to stay the execution. It did not act with diligence. It sat on its laurels and did not act when the time to act presented itself.

Accordingly, the urgent application is dismissed with costs for want of urgency.

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

This is an appeal against a judgment of the Labour Court which set aside an arbitral award made in favour of the appellant.

The background facts may be tabulated conveniently as follows:

1. The appellant (“Vimbai”) was employed by the respondent (“the Hotel”) as a supervisor.

2. On 18 January 2005 the Hotel wrote to Vimbai informing him that his contract of employment had been terminated. The letter reads as follows:

“Please be advised that effective 1 January 2005 your employment contract with Sheraton Harare Hotel and Towers has been terminated. You are no longer required to register for duty physically, on standby, or in any other form.

The decision has been taken by management as a last resort after futile attempts to resolve the matter amicably and through further attempts to settle the matter through arbitration. Management and yourself are of the opinion that the employment relationship has deteriorated to non-productive levels.

As a way forward, Sheraton Harare Hotel is willing to resolve the matter through arbitration provided both parties agree on terms of reference to be presented before the arbitrator.”

3. Vimbai took the letter to his trade union, the Zimbabwe Catering and Hotel Workers Union (“the Union”) which, on 20 January 2005, wrote to the Hotel indicating that Vimbai's dismissal would be challenged.

4. On 21 January 2005, the Hotel wrote to the Union as follows:

“Vimbai Mbisva's contract of employment has been terminated due to deterioration in the working relationship between Sheraton Harare Hotel and himself. As stated in our previous correspondence, we are willing and able to engage in dialogue that will result in the resolution of this matter. We are, in addition, willing to accept a determination from a body with appropriate authority to settle the matter.

The hotel welcomes intervention from the Zimbabwe Catering and Hotel Workers Union provided such intervention assists in a settlement of the above matter.”

5. Thereafter, the Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected that proposal.

6. Subsequently, the Union and the Hotel entered into negotiations on the best way forward, but, the negotiations did not yield any positive results.

7. Then, on 25 January 2005, Vimbai went to the Hotel where he signed a Memorandum of Agreement (“the MOA”) which reads as follows:

“I, Vimbai Mbisva, hereby acknowledge that I have entered into an agreement with Sheraton Harare Hotel, under the following terms of which I have agreed:

1. To accept payment of the sum of Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) as full and final settlement of all claims that I have against Sheraton Hotel Harare, its directors, subsidiaries, associated companies, and operations. I acknowledge that I have received Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) in full.

2. To withdraw all claims, complaints, and statements made (by) me relating to Sheraton Hotel Harare, whether with my legal advisors, any legal advisors, any Government body, any court, tribunal or to (sic) any other organisation.

I acknowledge that I have no further claims against Sheraton Hotel Harare, its directors, subsidiaries, associated companies and operations, whether for damages or otherwise. I have entered into this agreement of my own free will and I confirm that my signature appears on this agreement. I undertake to file a copy of this agreement with my legal advisors and any other organisation whose assistance I had sought.”

8. On 2 February 2005, Vimbai's legal practitioners referred the issue of Vimbai's unlawful dismissal to a Labour Officer for conciliation. The Labour Officer failed to settle the dispute, and, accordingly, on 15 April 2005, issued a Certificate of No Settlement.

9. On 9 May 2005, the Labour Officer referred the dispute to compulsory arbitration, and identified the issues for arbitration as:

“(1) Whether the agreement of 25 January 2005, between V Mbisva and Sheraton Hotel, is valid or not.

(2) If not, what damages are payable to Mr Mbisva.”

10. On 3 June 2005, Vimbai and the Hotel's Human Resources Director (“Makoni”) appeared before the arbitrator with their legal practitioners. Both Vimbai and Makoni gave oral evidence and were cross-examined. After addresses by the legal practitioners, the arbitrator reserved his decision.

11. On 18 July 2005 the arbitrator gave his decision, which was that the MOA signed by Vimbai on 25 January 2005 was not binding on the parties because it was not an agreement in the legal sense.

12. Aggrieved by that decision, the Hotel appealed to the Labour Court in terms of section 98(10) of the Labour Act [Chapter 28:01] (“the Act”).

13. On 5 April 2007, the Labour Court allowed the appeal and set aside the arbitral award granted on 18 July 2005.

14. Dissatisfied with that result, Vimbai appealed to this Court, leave to appeal having been granted in terms of section 92F(2) of the Labour Act [Chapter 28:01].

The grounds of appeal set out in the Notice of Appeal are as follows:

“1. The court a quo grossly erred as a question of law overturning the decision of the arbitrator on ordinary common law (principles) and not on the (principles) of public policies (enunciated) and captured in Article (34) of the UNCITRAL Model Law as incorporated in our Arbitration Act [Cap 11:15]. Put simply, (in) overturning the decision of the arbitrator, the court was obliged to consider whether the award in itself offended public policy.

2. Even assuming that the matter had to be determined purely and squarely on the basis of section 98(10) of the Labour Act [Cap 28:01], the court a quo grossly erred (in) overturning (a) finding of fact by the arbitrator. Put simply, there (were) no questions of law in the appeal pending before the Labour Court, and, for that reason, the Labour Court had no good reason to interfere with the finding of fact that (had) been made by the arbitrator.

3. Put simply, the Labour Court grossly misunderstood its functions, the court dealing specifically with questions of law under section 98(10) of the Labour Act [Cap 28:01].

4. Even assuming, without conceding, that (there were) questions of law in the appeal before the Labour Court, the Labour Court itself grossly erred in holding that (the) document executed on the 25th of January 2005 was binding, and ignored that the same had been executed under protest. In any event, to show that the appellant was not agreeing with the same he had left a settlement cheque with the respondent.”

Although four grounds of appeal are set out in the Notice of Appeal, there are in fact only three grounds because the second and third grounds raise the same issue, i.e. whether there were questions of law in the appeal pending before the Labour Court.

I shall deal with grounds 2 and 3 first, and then with grounds 1 and 4.

DID THE APPEAL TO THE LABOUR COURT INVOLVE A QUESTION OF LAW?

This question is important, because, in terms of section 98(10) of the Labour Act [Chapter 28:01], the right to appeal against the arbitrator's decision is restricted to questions of law only. The section reads as follows:

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section.”

What is a question of law was considered by this Court in Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S). At 220D-F GUBBAY CJ said:

“The twin concepts, questions of law and questions of fact, were considered in depth by E.M. GROSSKOPF JA in Media Workers Association of South Africa and Ors v Press Corporation of South Africa Ltd (Perskor) 1992 (4) SA 791 (A).

Approving the discussion of the topic in Salmond on Jurisprudence, 12ed at 65-75, the learned JUDGE OF APPEAL pointed out, at 795D-G, that, the term 'question of law' is used in three distinct though related senses:

(i) First, it means 'a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what it considered to be the truth and justice of the matter'.

(ii) Second, it means 'a question as to what the law is.

Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter; and

(iii) Third, any question which is within the province of the judge instead of the jury is called a question of law. This division of judicial function arises in this country in a criminal trial presided over by a judge and assessors.”

Applying these principles to the Hotel's appeal to the Labour Court, there is no doubt in my mind that the appeal involved a question of law. I say so because in its Notice of Appeal, filed in the Labour Court, the Hotel based the appeal on the following ground of appeal:

“The arbitrator erred grossly at law and on the facts in holding that the Memorandum of Agreement is not (an) agreement in terms of the law.”

The issue before the Labour Court was, therefore, whether the Memorandum of Agreement (MOA) was an agreement in terms of the law. That, in my view, is a question of law within the second sense of the term 'question of law' set out above.

There is, therefore, no substance in the second and third grounds of appeal.

DOES ARTICLE 34(2)(b)(ii) OF THE MODEL LAW APPLY TO APPEALS BROUGHT TO THE LABOUR COURT IN TERMS OF SECTION 98(10) OF THE LABOUR ACT?

This issue arises because, in the first ground of appeal, it is submitted that the Labour Court should not have set aside the arbitral award unless it had been satisfied that the award was in conflict with the public policy of Zimbabwe, in terms of Article 34(2)(b)(ii) of the Model Law set out in the First Schedule to the Arbitration Act [Chapter 7:15].

Article 34 of the Model Law, in relevant part, reads as follows:

“(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 -

(a)…,.

(b) The High Court finds that -

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or

(ii) The award is in conflict with the public policy of Zimbabwe.

(3)…,.”

The issue set out above was considered by this Court in NetOne Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net One Employees SC89-05.

In that case, this Court ruled that Article 34 of the Model Law did not apply to an appeal against
an arbitral award brought to the Labour Court in terms of section 98(10) of the Labour Act [Chapter 28:01].

In my view, it is quite clear, from a careful reading of Article 34 of the Arbitration Act, that, the Article only deals with and limits the power of the High Court to set aside an arbitral award, and does not in any way deal with or limit the power of the Labour Court to set aside an arbitral award challenged in terms of section 98(10) of the Labour Act.

I cannot, therefore, see any reason for departing from this Court's decision in NetOne Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net One Employees SC89-05.

Consequently, the Labour Court did not have to be satisfied that the arbitral award was in conflict with the public policy of Zimbabwe before setting it aside.

There is, therefore, no merit in the first ground of appeal.

WAS THE MEMORANDUM OF AGREEMENT BINDING ON VIMBAI?

In the fourth ground of appeal, it is submitted that the Labour Court erred in holding that the Memorandum of Agreement (MOA) was binding on Vimbai, and ignored the fact that it was signed under duress.

However, this ground of appeal was not dealt with in the heads of argument filed on behalf of Vimbai. Nevertheless, I will deal with it.

The issue raised in this ground of appeal is whether the Memorandum of Agreement (MOA) was signed under duress.

As already stated, both Makoni and Vimbai gave evidence before the arbitrator and were cross-examined. After consideration of that evidence, the arbitrator said the following:

“In one way or the other, after the dismissal of the claimant, the parties contacted each other, resulting in the claimant and Mr Makoni (from Sheraton) meeting to 'finalise' the matter. At this penultimate meeting, the employer presented a document that would put the matter to rest. The claimant knew that if he continued to challenge his dismissal, he would get nothing from the employer. He therefore pretended to be accepting his terminal benefits, but requested that they be split into two parts, with the first part incorporating largely the January salary and (the) other part the rest of the other terminal benefits.

The claimant then wrote “U.P.” after his signature to signify that he was accepting the benefits 'Under Pressure'.

This was not explained to the employer.

The employer acknowledges that he (it?) was not aware that the claimant had signed the document under pressure.

The claimant hoodwinked the employer into believing that he was consenting to the termination of employment and to the acceptance of terminal benefits. This was done with the sole aim of accessing the January salary.

The claimant's conduct is deplorable.

He was understandably desperate for cash but he used unorthodox methods to get what he wanted.

He lied that he was accepting the benefits of his own free will, and that his acceptance was in full and final settlement of (the) claims that he had against the respondent.

No wonder the respondent's agent kept referring to him as a trickster.

Had it not been for my findings regarding the Memorandum of Agreement (MOA) I would have ruled that the claimant be bound by (his) signature, never mind the invented 'U.P'.”

It is quite clear, from what the arbitrator said, that, he was satisfied that Vimbai had not signed the Memorandum of Agreement (MOA) under duress.

The Labour Court was of the same view and said the following:

“It may very well be true that he was under financial pressure which forced him to accept a deal that he did not like. But, the fact remains that he need not have accepted the deal. It is not like his will was overborne by (the) appellant's to the extent that he had no choice in the matter. He had a choice. He could have rejected the whole deal and pursued other remedies. The fact that he now feels that he should have got more than the deal offered is no ground for breaking the deal.”

The finding by the Labour Court, that Vimbai did not sign the Memorandum of Agreement (MOA) under duress, is a finding of fact, which is not appealable unless it can be said to be irrational in the sense set out in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, where this Court said:

“The general rule of law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671E-H; CCSU v Minister for the Civil Service [1984] 3 All ER 935 (HL) at 951A-B; PF-ZAPU v Minister of Justice (2) 1985 (1) ZLR 305 (S) at 326E-G.”

In the present case, I am not prepared to say, that, having regard to the evidence placed before the arbitrator and the Labour Court the finding complained of is irrational in the sense set out above.

Consequently, the finding that Vimbai did not sign the Memorandum of Agreement (MOA) under duress is not appealable, and the fourth ground of appeal, therefore, falls away.

In my view, the Labour Court correctly determined the matter.

The Memorandum of Agreement (MOA) was a declaration by Vimbai that the dispute between him and the Hotel had been settled on the terms and conditions set out in the Memorandum of Agreement (MOA).

That conclusion is logically consistent with what happened in this case before 25 January 2005.

Vimbai was dismissed by the Hotel. He reported the matter to the Union and a labour dispute ensued. Negotiations aimed at settling the dispute commenced between the Union and the Hotel. The Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected the proposal. As he badly needed some money, Vimbai went to the Hotel, on 25 January 2005, and signed the Memorandum of Agreement (MOA), declaring that the
labour dispute had been settled on the terms and conditions set out therein.

In my view, that declaration is binding on him.

In the circumstances, the appeal is dismissed with costs.

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

This matter came before me as an urgent application.

After having sight of the opposing papers filed by the respondents, I concluded that the matter was not urgent, and, by agreement of the parties, it was enrolled on my roll of opposed matters as all parties had filed all the necessary affidavits and heads of argument.

The dispute arises out of the registration of an arbitral award by this court at the instance of the applicant.

Subsequent to the said registration, the applicant caused a writ of execution to be issued by the Registrar of this Honourable Court. The writ was served by the first respondent who attached a number of assets belonging to the fourth respondent.

When the first respondent attended at the fourth respondent's premises to remove the attached goods, the third respondent, a firm of legal practitioners engaged by the fourth respondent, intervened and allegedly advised the first respondent that the order of this court had been stayed by an order of the Labour Court.

Thereafter, the legal practitioners for the applicant, on the one hand, and those representing the fourth respondent, on the other, engaged in correspondence whose tone descended with each letter, culminating in each of them hurling insults, threats, and counter accusations.

It is sad to record that insults were traded between the legal practitioners of the applicant and the respondents.

Needless to say, the first and second respondents were not spared from this barrage.

I think it it is pertinent to remind legal practitioners, that, the second respondent and his deputies are officers of this court. In the performance of their duties, they are supposed to be impartial.

If there exists a dispute between parties, it would be foolhardy for the second respondent, especially, to be seen to be taking the side of one party against another.

If there is a court order which has been granted staying execution, as happened in this case, the second respondent cannot be expected to conclude that the court order is irregular and should be disregarded. That would lead to a breakdown in the rule of law as well as a complete disregard and breakdown of the judicial system.

For the applicant to suggest, as he did, that, the first and second respondents ought to have, upon his demand, overlooked the existence of the order of the Labour Court and proceeded to levy execution in his favour 'because the order was clearly wrong', is, to my mind, tantamount to encouraging any official to disregard orders of the courts of this country.

The respondents have no capacity to decide if an order is incompetent or otherwise. That is the function of these courts.

The first and second respondents, having been threatened with criminal sanction, wisely, in my view, decided to take no further action until a court had decided whether one or the other was in the right from a legal perspective.

They have, as a result, been brought to court for an order for mandamus for the Sheriff and his Deputy to perform their duties in terms of the law.

I cannot fault the manner in which they handled their task. The same cannot, however, be said of the legal practitioners for the applicant and the fourth respondent.

The starting point would, in my view, be the award that the applicant obtained from the arbitrator which is the causa causans of the entire dispute.

The applicant was employed by the fourth respondent as a Director of the Agricultural unit at the school. On 6 March 2009 he was dismissed following a finding that he was guilty of wilful disobedience to a lawful order.

He filed an appeal to the Minister who referred the matter to an arbitrator for conciliation.

The arbitrator heard the parties on 12 May 2009, and, on 30 June, the arbitrator issued an award in favour of the applicant. The arbitrator found that there had been unfair labour practice against the applicant and gave the following award:

(i) That the employee be paid salary arrears from 1 March 2009 to 30 June 2009 and gratuity with immediate effect;

(ii) That the employee be paid three (3) months cash in lieu of notice, gratuity, and any outstanding vacation leave days with immediate effect;

(iii) That the employee be paid damages in lieu of reinstatement. Further, that, the parties negotiate the quantum of damages payable, if they fail to agree they should refer the matter back to arbitration.

The parties did not agree on the amounts to be paid, and, as a result, on 7 June 2010, the applicant referred the dispute to the arbitrator for an assessment of the monies due and owing as damages in lieu of reinstatement.

The arbitrator, on 7 June 2010, awarded the applicant US$60,000 as damages in lieu of reinstatement.

Armed with this award, the applicant then filed a chamber application with this court for the registration of the award.

In the draft order attached to the application, he sought registration of the awards granted to him on 16 July 2009 and 7 June 2010 respectively.

The learned judge before whom the application was placed, pointed out, correctly, in my view, that the first mentioned award did not sound in money.

To comply with this query, the applicant then submitted two annexures, one of which was a payslip and the other a document which purportedly set out all the sums as salary and allowances claimed from February 2009 to June 2009. These amounts totalled US$29,367 were accordingly claimed on the amended draft order filed by the applicant.

There was, however, no indication on the papers that these amounts had been awarded by the arbitrator.

On 21 June, this court gave an order in favour of the applicant in which the arbitral award of June 2010 was registered together with an amount of US$29,367 - which clearly was not part of the award by the arbitrator.

When the parties appeared before me, I raised a query with the applicant's counsel as to the entitlement by the applicant to have this aspect of the award registered with this court.

Counsel, who had not been instructed on the circumstances surrounding the registration of the award, was unable to confirm that it was based on an award by the arbitrator.

I indicated to the parties, that, in my view, the award had been registered in error and that it was my intention to invoke Rule 449 of the Rules of the High Court and rescind that part of the order.

Accordingly, the order of this court, dated 21 June 2010, relating to an award by Mpisaunga, dated 16 July 2009, for the sum of US$29,367 is hereby rescinded.

I now turn to the dispute between the parties.

The applicant seeks an order that the process of execution be proceeded with by the first and second respondents. He also seeks an order barring the fourth respondent from interfering with the first and second respondents in the execution of their duties.

In the final relief, the applicant also sought an order to the effect that Rule 34(1) of the Labour Court Rules 2006, S.I.59/06, S.I. 59 of 2006 is ultra vires the Labour Act [Chapter 28;01].

Subsequent to his having an order issued in his favour, the applicant caused, on 23 June 2010, a writ of execution to be issued by the Registrar of this Honourable Court.

It is common cause, that, on 28 June, the first respondent attended at the premises of the fourth respondent armed with the writ and attached two buses and a tractor. Removal was scheduled for 1 July 2010.

He did not do so due to a letter, dated 30 June 2010, from Messers Kantor & Immerman which advised the first respondent that a stay of execution had been granted in favour of the fourth respondent by the Labour Court, and that, therefore, the respondent ought not to proceed further with the process.

A copy of the order, which was attached to the letter, reveals that the order staying execution was granted in chambers by KACHAMBWA President on 30 June 2010.

The president had granted a stay on the execution of the judgment relating to the damages in lieu of reinstatement but had allowed execution on the part of the award which was not the subject matter of an appeal.

It transpired that the fourth respondent had not appealed against the award of 16 July 2009 but had appealed the award issued on 7 June 2010. The applicant had apparently not been served with the Notice of Appeal.

The applicant and his legal practitioners were not convinced that the Labour Court could order stay of execution on an order emanating from this court, and, accordingly, on 14 July, the latter addressed a letter to the first respondent urging him to proceed with execution.

The first respondent complied and served a fresh notice of removal on 16 July 2010. Removal was this time scheduled for 21 July 2010.

He was unsuccessful as he was met with resistance.

In the meantime, the fourth respondent's legal practitioners had addressed a letter to the first respondent, which they copied to the applicant's legal practitioners, on 19 July, in which they intimated that the writ of execution was no more legally enforceable and warning the first respondent that he risked being charged with a criminal offence if he persisted with execution.

A further letter on the issue was written to the applicant's legal practitioners, on 22 July 2010, in which it was stated, amongst other things, that, any instructions to the first respondent to proceed with execution would be unlawful because the writ had been suspended by the Labour Court.

In view of the turn of events, the second respondent advised the first respondent to suspend execution pending the determination of the application filed by the applicant, in the Labour Court, for rescission of the order for stay of execution.

The applicant sought an explanation from the second respondent who reiterated that his office would not proceed with the process of execution until the rescission would have been determined hence the application before me as the applicant is of the view, that, until such time as the order of this court has been set aside the writ is valid.

The execution of judgments of the High Court is provided for in Order 40 of the Rules.

Rule 324 thereof provides that a writ of execution, once issued, remains in force until such time as the judgment has been satisfied.

Rule 323 provides that one or more writs may be sued out by any person in whose favour a judgment has been pronounced if such judgement has not been satisfied, stayed, or suspended.

The contention of the first and second respondents is that the writ cannot be enforced because it has been suspended by the Labour Court.

The order by the Labour Court staying execution of the order of 21 June 2010 was effected in terms of Rule 34 of the Labour Court Rules which is to the following effect:

"Where a decision, order, or determination has been registered in terms of section 92B(3) of the Act, the Court or a President sitting in chambers may, upon application, order a stay of execution of the decision, order, or determination.”

The issue which then arises is whether this was a decision, order, or determination registered according to the provisions of section 92B of the Labour Act.

Section 92B(1) of the Labour Act provides that the Labour Court may fix the date from which any decision, order, or determination made by it may operate.

Subrule (2) requires the court or the president who made the decision to submit sufficient copies of the order or decision to the Registrar, who, in turn, will provide a copy to each of the parties affected by the order or decision.

Section 92B(3) of the Labour Act, in turn, permits the registration of the order or decision with the Magistrates Court or the High Court, depending on the jurisdictional limit of the lower court.

Clearly, an award from an arbitrator cannot be registered under section 92B of the Labour Act.

A closer scrutiny of the Labour Act actually reveals that the appropriate section for the registration of such awards is section 98(14) of the Labour Act, which is, to all intents and purposes, a mirror of section 92B(3) of the Labour Act except that there is reference to an arbitrator and an arbitral award as opposed to the Labour Court and a decision, order, or determination.

In my view, the Labour Court provided for the suspension of orders or decisions registered under section 92B(3) of the Labour Court only.

The judgments registered under section 98(14) of the Labour Act have been excluded.

Any suspension of any award granted under section 98 of the Labour Act would therefore be ultra vires the Rules themselves as they have not provided for such suspension.

The matter however does not end there.

The applicant has contended, that, irrespective of what the Labour Court Rules may provide, that court does not have the jurisdiction or power to suspend or stay execution of an order or judgment of this Honourable Court.

In terms of section 92B(4) of the Labour Act, once a judgment or order has been registered with the High Court, it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.

The same provision is found in section 98(15) of the Labour Act.

Effectively, therefore, once this court issued an order registering the award in favour of the applicant; upon the registration, the award became, to all intents and purposes, a judgment of the High Court.

The contention by the applicant is that, as a result of the registration, the Labour Court ceases to have jurisdiction over the judgment and it cannot control, vary, set aside, or rescind the judgment.

I think this is a correct exposition of the law.

The effect of the registration with this court is that only the High Court, barring an appeal to the Supreme Court, can interfere with the judgment or its execution. This is because, the High Court, being a court of superior jurisdiction, has the inherent power to regulate its own proceedings as remarked by GILLESPIE J in S v Chakwinya 1997 (1) ZLR 109 (H) as follows:

“…, and the remedy for the accused here lies in the inherent jurisdiction of this court to regulate its own proceedings and to protect the rights of those coming before it."

Clearly, the import behind Rule 34(1) of the Labour Court Rules is to permit the stay of any judgment registered with a court possibly with inferior jurisdiction to it.

I say possibly because this aspect was not argued before me as that was not the situation confronting the parties. I am therefore not in a position to state, with certainty, that the Rule permits this.

It is an issue that would have to be argued before a court can pronounce on it.

What I can state is that the Rule cannot be read as giving the Labour Court the power to regulate proceedings of the High Court. To the extent that it appears to do so, the Rule, in my view, is in conflict with the Labour Act and the limited jurisdiction granted to the Labour Court in terms of section 89 thereof.

I am bolstered in this view by the comments of SANSOLE J in Chibaya v Chibaya 1985 (2) ZLR 237…, where he quoted from remarks by ROPER J in R v de Jager 1953 (2) SA 197, remarks to the following effect:

"The ordinary rule of law is that an order made by a court can (except by way of appeal or review in a higher court) not be varied except by the court itself:…,."

It is trite, that, a judicial officer cannot vary or set aside a judgment or order issued by an officer of parallel jurisdiction, except in the case of a rescission of an order granted in default, or, in restricted circumstances, in accordance with the provisions of Rule 449 of the rules of this court.

As the applicant rightly argues, if a judge cannot vary or alter aside an order issued by a judge with parallel jurisdiction (see Parker v Parker 1985 (2) ZLR 79…,.) how can it be possible for a judge from a lower court have the power to stay an order issued by a court of superior jurisdiction?

I cannot conceive of a situation where a court can lawfully interfere with execution or suspension of a court order issued by a court of superior jurisdiction to its own.

Execution is a process of the court and every court has the power to control its own process subject to the Rules of Court. In the High Court, that power is inherent: see Strime v Strime 1983 (4) SA 850; and Stumbles & Rowe v Mattinson 1989 (1) ZLR 172.

The courts in this country have all been imbued with the power to regulate their own proceedings and therefore no other court can legally interfere with those proceedings unless in an appeal or a review of the proceedings of that other, which, in any case, would have to be a court of inferior jurisdiction.

In casu, the Labour Court is not such a court as can review or subject to appeal the proceedings of the High Court and it ought not to have stayed the judgment of this court as that is not within its jurisdictional power.

I have been enjoined in this vein to find, by the applicant, that Rule 34(1) of the Labour Court Rules is ultra vires the provisions of section 92B of the Labour Act.

The award which is the subject matter of this dispute falls for registration in terms of section 98 of the Labour Act, and, therefore, this Rule does not make reference to awards registered in terms of that section, and any remarks by this court relating to section 92B of the Labour Act would be obiter.

I will therefore not venture into that territory, as I believe that the law is clearly against the Labour Court staying the execution of an order of this court - even where it has been granted through the registration process of an order, award, decision, or judgment emanating from that court or bodies under its umbrella.

Thus, the order staying execution of the judgment of this court, of 21 January 2010, does not bind this court and the stay is of no force and effect.

The writ issued in consequence of that order is therefore valid and capable of execution by the first respondent or the second respondent.

It is clear, that, as a result of the provisions of Rule 34(1) of the Labour Court Rules a lot of confusion has been evident between the litigants as to which court, between this court and the Labour Court, should be approached for relief when considering a stay of execution.

The import behind section 92B(3) and (4) as well as 98(13) and (14) of the Labour Act is to provide successful litigants under the Labour Act an avenue for the due execution of any orders or awards rendered in their favour.

The purpose was not to make this court or the Magistrates Court the owner of those orders.

However, in order for the orders to be given legal effect, for purposes of execution, the relevant sections provide, that, upon registration, the order or award becomes an order of the court in which the registration has been effected.

The legal consequences of the registration are manifold:

(i) Firstly, if there is need for a stay, in so far as the High Court is concerned, only this court can order a stay of the order. I was not addressed on the issue of an award registered in the Magistrates Court, and, in the absence of argument, I am unable to render an opinion.

(ii) Secondly, once the order is registered, only the High Court can entertain an application for rescission or variation.

The High Court does not have the jurisdiction to deal with labour matters, that being within the exclusive jurisdiction of the Labour Court and structures set up under the Labour Act. In the event that the initial order, judgment, or award has to be reviewed, rescinded, varied or interfered with in any manner, this court plays no part. It cannot determine anything to do with labour on the merits.

The absurd situation is therefore created where this court has registered an order which becomes its own, but, if either party wishes it rescinded, this court cannot consider the merits of the application as it has no jurisdiction to determine labour issues.

In the event, the parties have to utilise the structures set up under the Labour Act to regularise or deal with the dispute, and, once that is finalised, they approach the High Court to set aside its judgment which came by way of registration.

I believe that the burden on the litigant, in the existence of the need to have a multiplicity of actions, is not just unduly burdensome, it can be costly. Invariably, the employee is not legally represented and the minefield presented by the need to jump from one court to another for redress may lead to an injustice.

I would venture to suggest that the Labour Court be provided with the services of the Sheriff for purposes of effecting execution of its own judgments and this would instantly remove the confusion prevailing from the interpretation of Rule 34(1) of the Labour Court Rules.

Already, the Deputy Sheriff and the Messenger of Court are empowered to serve process of that court, and, it would be a simple thing to extend those powers to execution of judgments rendered by the court.

I turn then to the substance of the application, as to whether or not I should issue an order in favour of the applicant directing the first and second respondents to abide by their statutory duties and remove the attached assets and sell them in execution of the judgment of this court.

The powers and duties of the Sheriff are provided for in section 20(1) of the High Court Act to the following effect:

"Subject to section nineteen and to rules of court, the Sheriff shall, by himself or his deputy or an assistant deputy, execute all sentences, decrees, judgments, writs, summonses, rules, orders, warrants, commands and other processes of the High Court, and shall make a return thereof to that court together with the manner of execution thereof."

That there is a statutory obligation falling upon the shoulders of the Sheriff and his lawful deputy, in this case the first and second respondents, is not in dispute. Both are officers of this court and are bound by the High Court Act.

The question to be determined here is whether or not the applicant has made out a case requiring this court to order that the first respondent execute his mandate in terms of the writ.

The applicant has addressed this court at length on the validity of the writ. I do not believe that is the issue before me. The writ is valid until such time as the judgment of this court has been set aside.

The judgment has not.

However, each of the parties has noted an appeal against the assessment of damages by the arbitrator in the sum of US$60,000.

It is trite that a litigant who is dissatisfied with a judgment or decision may appeal against that judgment or decision.

Appeals under the Labour Act are governed by that Act. Section 92D provides:

"A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner prescribed, appeal to the Labour Court."

The effect of noting an appeal under this section is described in section 92E of the Labour Act in the following terms:

"(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."

In terms of subsection (2), the Legislature has finally put to rest the confusion in the law as to whether or not an appeal under the Labour Act would suspend the operation of the decision or determination appealed against.

The arbitral award was however granted in terms of section 98(9) of the Labour Act.

An appeal against the decision of the arbitrator, on a question of law, lies to the Labour Court in accordance with the provisions of section 98(10) of the Labour Act.

Where section 92E of the Labour Act provides that the noting of an appeal does not suspend the decision or determination, there is no such provision in relation to an appeal against an award by an arbitrator.

In PTC v Mahachi 1997 (2) ZLR 71 (H) CHATIKOBO J stated…,.:

"I am concerned with proceedings conducted in the public law domain under the provisions of the Act. In this domain, the common law presumption against the operation of judgments which have been appealed against applies unless the Act provides to the contrary.

In this case, the Act is silent on the issue. But, does this silence mean that Parliament intended to alter the common law position?

In Phiri & Ors v Industrial Steel & Pipe (Pvt) Ltd SC242-95 (not reported) KORSAH JA said:

'There is a presumption, in the interpretation of statutes, that Parliament does not intend to change the common law, unless it expresses its intention with irresistible clearness, or, it follows, by necessary implication, from the language of the statute in question, that it intended to effect such alteration in the common law; for 'construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself is to sin against one of the most familiar rules of construction….,.': per LORD HALSBURY LC in Bank of England v Vagliani [1891] AC 107 at 120.

I am of the opinion, that, in the absence of a clear indication by the law giver to the contrary, the common law position that the execution of all judgments is suspended upon the noting of an appeal is not ousted by the silence of the statutory instrument in terms of which the respondent's appeal to the Tribunal was lodged upon the effect of such appeal against the order made by the Minister.'"

I will consider, and accept, as CHATIKOBO J did before me in PTC v Mahachi 1997 (2) ZLR 71 (H) that the proceedings against which the appeal was noted were conducted in the public domain law under the aegis of the Labour Act. As such, in the public domain law, the common law presumption against the operation of judgments which have been appealed against operates unless the Act has provided to the contrary viz section 92E(2) of the Labour Act.

I am fortified in this view by comments made by GREENLAND J in Mushaishi v Lifeline Syndicate & Anor 1990 (1) ZLR 284 (H)…, to the following effect:

"To my mind, it would be anomalous if an administrative decision of a quasi-judicial nature, as is the case here, were to be put on a different footing from court judgments and orders.

In the absence of anything provided to the contrary in the relevant Act, such decisions must be treated as suspended pending appeal."

The sum total of the comments from the eminent jurists that I have quoted from leaves me with no other conclusion than that the arbitral award, having been appealed against, is not capable of being executed against.

To hold otherwise would be to fly in the face of age old established common law principles, let alone logic.

For a litigant to note an appeal against judgment granted in his favour, and, thereafter, to seek to execute against the same judgment with which he has clearly expressed unhappiness, is, to say the least, an abuse of court process.

ln any event, the fourth respondent has noted an appeal against the award of damages by the arbitrator.

The Labour Court is a creature of statute and is regulated strictly within the four corners of the statute which created it.

The Act that created it has not seen fit to interfere with the common law position which provides that an appeal against a judgment suspends the same.

It stands suspended and the applicant has not convinced me otherwise.

In the premises, I find that the application has no merit and it should be dismissed with an appropriate order for costs. I therefore make an order as follows:

IT IS HEREBY ORDERED AS FOLLOWS:

1. The order of this court dated 21 June be and is hereby varied by the rescission of the order for the sum of $29,367 registered in favour of the applicant as having been registered in error.

2. The application for an order of mandamus against the first and second respondents be and is hereby dismissed.

3. The applicant is ordered to pay the costs of this application.

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

Article 12 of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15], provides as follows:

“(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment, and throughout the arbitral proceedings, shall, without delay, disclose any such circumstances to the parties unless they have already been informed of them by him.

(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.”

Article 13 of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15] sets out the procedure for challenging an arbitrator in the following terms:

“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the High Court to decide on the challenge, which decision shall be subject to no appeal: while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”...,.

It is generally accepted, that, in evaluating bias or partiality on the part of an arbitrator the test to be applied is an objective one: see The Elissar [1984] 2 Lloyd's Rep 84…, where ACKNER LJ enunciated the test as follows:

“Do there exist grounds from which a reasonable person would think that there was a real likelihood that the arbitrator could not or would not fairly determine the relevant issue on the basis of the evidence and arguments to be adduced before him.”

In Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S)…, KORSAH JA stated that:

“A common theme which runs through the authorities is, therefore, that, the test to be applied is an objective one. One does not enquire into the mind of the person challenged to determine whether or not he was or would be actually biased. Thus, the character, professionalism, experience, or ability as to make it unlikely, despite the existence of circumstances suggesting a possibility of bias arising out of some conflict of interest, that he would yield to infamy, do not fall for consideration.”

In Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)…, SMITH J adopted the same objective approach:

“In an application for recusal, the test to be applied is not easily defined since decided cases are not entirely consistent, with some judges favouring the view that the test is whether, as a matter of fact, there is a real likelihood of bias, whilst others accepted a reasonable belief that a real likelihood of bias existed as being sufficient.

To my mind, however, there is no real difference between the two approaches since, unless there were a real likelihood of bias, a reasonable or right-thinking man would not believe that there was such likelihood.”

The twofold nature of the test to be applied was elaborated by MUKHARJI J in a decision of the Supreme Court of India in International Airport Authority of India v Bali & Anor [1988] LRC (Comm) 583…,:

“It is well said that once the arbitrator enters into an arbitration, the arbitrator must not be guilty of any act which can possibly be construed as indicative of partiality or unfairness. It is not a question of the effect which misconduct on his part had in fact upon the result of the proceeding, but of what effect it might possibly have produced.

It is not enough to show that, even if there was misconduct on his part, the award was unaffected by it, and was, in reality, just; the arbitrator must not do anything which is not in itself fair and impartial….,.

It is well settled that there must be a real likelihood of bias and not mere suspicion of bias before the proceedings can be quashed on the ground that the person conducting the proceedings is disqualified by interest….,.

There must be reasonableness in the apprehension of bias in the mind of the party.

The purity of administration requires that the party to the proceedings should not have apprehension that the authority is biased and is likely to decide against the party. But, we agree with the learned judge of the High Court, that, it is equally true that it is not every suspicion felt by a party which must lead to the conclusion that the authority hearing the proceedings is biased. The apprehension must be judged from a healthy, reasonable, and average point of view and not on the mere apprehension of any whimsical person.”

Similarly, in a decision of the High Court of Singapore in Koh Bros Building and Civil Engineering Pte Ltd v Scotts Development (Saraca) Pte Ltd [2003] 3 LRC 111…, PRAKASH J observed as follows:

“No actual bias or partiality need be shown as long as the court is satisfied, from the conduct of the arbitrator, either by his words, his action or inaction, or his handling of the proceedings, that he displayed a real likelihood that he might not be able to act judicially.”

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

This is an urgent application in which the applicant seeks a provisional order in the following terms:-“(A) TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. That the execution of the Arbitral Award in case ...

This is an urgent application in which the applicant seeks a provisional order in the following terms:-

“(A) TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That the execution of the Arbitral Award in case number HC6251/11 by the respondents be and is hereby permanently stayed.

2. That there shall be no order as to costs of this application.

(B) INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order the applicant is granted the following relief:

(a) That the execution of the Arbitral Award registered in case number HC6251/11 be and is hereby stayed.

(b) In the event of this application being heard after execution has been carried out, that the applicant be restored to possession of its movable property.”

On 24 May 2011, labour arbitrator, L.M. Gabilo, handed down an arbitral award in an arbitration involving the parties in terms of which he directed the applicant to pay the respondents a total sum of US$24,103 as unpaid salaries and cash in lieu of notice.

It does not appear, from the papers, as if the applicant did anything about the award until recently.

The arbitral award was registered with this Court following an application made by the respondents in terms of section 98(14) of the Labour Act [Chapter 28:01] in case number HC6251/11 but not before that application was served upon the applicant on 4 July 2011.

According to the Deputy Sheriff's return of service, the application was served on an employee of the applicant, Mrs Mudyawabikwa, who is a responsible person.

The applicant did not see the wisdom of opposing the application and now claims that the employee did not bring it to the attention of management.

I find it incredible that Mrs Mudyawabikwa could have appropriated the application for herself - especially as no affidavit has been elicited from her explaining how this came about. In fact, I reject the argument that the applicant only got to know of the arbitral award at the time of attachment.

Looking at L.M. Gabilo's award, the arbitration costs were to be borne by the parties at the ratio of 15% by the respondents and 85% by the applicant. It is highly unlikely that the arbitrator would have failed to send the award to the applicant when the bulk of his fees were to come from the applicant.

I therefore proceed from the premise, that, aware of both the award and its registration as an order of this Court, the applicant did nothing about the matter until removal of its property on 12 January 2012.

This is particularly so given that the applicant did not act even when served with the notice of seizure and attachment on 6 September 2011 and with the notice of removal on 5 January 2012.

Following registration of the award, a writ of execution was issued and the applicant's property attached and removed for sale in execution on 13 January 2012. It is that removal which jolted the applicant into action, as, prior to that, it had blissfully allowed the matter to remain unattended.

The applicant promptly filed an urgent application in this Court, in case no. HC289/12, seeking an order for a stay of execution pending the hearing of a review application which it only filed in the Labour Court on 13 January 2012 when its property was removed.

The urgent application, in HC289/12, was placed before my brother MUTEMA J who refused it on 13 January 2012 on the basis that he lacked jurisdiction as section 89(6) of the Labour Act [Chapter 28:01] ousted the jurisdiction of this Court, the determination of such application falling within the exclusive purview of the Labour Court as well as the fact that no urgency was demonstrated by the applicant - it having waited until the eleventh hour to bring the application.

It would appear that after failing to get relief from this Court, the applicant tried its luck at the Labour Court but it met with no joy there either as Senior President, G. Mhuri, of that Court, threw out the application on 15 February 2012 “for want of jurisdiction”.

The applicant then returned to this Court, again, on an urgent basis, seeking a stay of execution pending the determination of its review application in the Labour Court.

Significantly, the applicant filed almost the same application rejected by MUTEMA J and did not attach the review application in question.

More importantly, the applicant did not disclose the fact that it had been to this Court before and had had the same application dismissed. Neither did it disclose that its property had been advertised by the Deputy Sheriff and part of it sold by public auction on 4 February 2012.

If I had not directed service of the application upon the respondents, I would have determined the matter without knowledge of the existence of a similar application dismissed by this Court or indeed the sale of the property sought to be protected.

The utmost good faith must be shown by litigants making applications of this nature. They should place all material facts before the Court to enable the Court to make an informed decision: see N & R Agencies (Pvt) Ltd & Anor v Ndlovu & Anor HB198-11 and Graspeak Investments v Delta Corporation (Pvt) Ltd 2001 (2) ZLR 551 (H)…, where NDOU J stated, as he quoted with approval, HERBESTEIN and VAN WINSEN, The Civil Practice of the Supreme Courts of South Africa;

“The utmost good faith must be observed by litigants making ex parte applications in placing material facts before the Court, so much so that if an order has been made upon an exparte application and it appears that material facts have been kept back, whether wilfully or mala fide or negligently which might have influenced the decision of the Court whether to make the order or not the Court has a discretion to set the order aside with costs on the grounds of non-disclosure.”

At p555C, the learned judge went on to say:-

“The Courts should, in my view, discourage urgent applications, whether ex parte or not, which are characterised by material non-disclosures, mala fides or dishonesty. Depending on circumstances of the case, the Court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on the part of litigants.”

I find myself in total agreement with the sentiments expressed by the learned judge.

Here is a litigant that had approached this court a few weeks earlier and had its case dismissed. Its property has already been sold in execution; it was sold on 4 February 2012. The same litigant returns to this Court on virtually the same facts but does not disclose the history of the matter.

In my view, this is a very material non-disclosure and it borders on dishonesty. The courts must always cast a dim view on litigants who pull the wool over its eyes.

This is not the only problem confronting the applicant in this matter.

The other issue relates to urgency. I have already stated that MUTEMA J rejected the same application for lack of urgency on 13 January 2012.

For the applicant to approach the Court on the same facts, more than a month later, is not only disingenuous in the extreme but a lamentable abuse of court process.

Realising this difficulty, counsel for the applicant tried to suggest that this matter came before me as a referral from the Labour Court.

That is not the case, as it is a stand alone application.

The applicant was aware that the arbitral award was being registered for purposes of execution in July 2011. It did not contest the registration neither did it seek a stay of the execution. It waited until the day of reckoning to approach the Court. This is not the kind of urgency envisaged by the Rules. As stated by CHATIKOBO J, a pronouncement which I am in total agreement with, in Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…,.:

“What constitutes urgency is not only the imminent arrival of the day of reckoning. A matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberative or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the Rules.”

The interim relief which the applicant seeks betrays its real intention.

The applicant prays, that, in the event that execution has been carried out, the court must restore possession of the property to it.

How can one do that?

The property has already been sold and third parties have acquired rights over such property. The applicant desires to reverse the execution and not to stay it.

This is a case calling for costs to be visited upon the applicant on a higher scale in light of its lack of bona fides and what appears to be an abuse of court process.

It should have been apparent to the applicant, especially with the benefit of legal counsel, that the application has no prospects of success.

In the result, the application is dismissed with costs on the legal practitioner and client scale.

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

The application before me is a special plea and exception.

The brief facts surrounding this claim are as follows:

The plaintiff was employed by the Confederation of Zimbabwe Industries reporting to the first defendant who was its President and Chief Executive Officer. On 18 June 2014, the plaintiff issued summons against the two defendants claiming damages for shock, non-patrimonial damages, post traumatic damages and pain and suffering.

The plaintiff claims that during the course of her employment with the second defendant, which ran between September 2002 and June 2003, she was sexually harassed by the first defendant who would pester her for an improper relationship. She claims that her resistance to the sexual advances culminated in the termination of her employment by the first defendant for a petty offence.

She challenged the dismissal.

The matter ended up at arbitration. An arbitrator ruled in her favor after having found that she had been sexually harassed by the first defendant. The arbitrator ordered the defendants to jointly compensate her for the damages she had suffered as a result of the sexual harassment....,.

The jurisdiction of arbitrators, when dealing with unfair labour practices, is limited to stopping the conduct complained against. The role of the Labour Court and arbitrators, when dealing with claims involving sexual harassment, is to make a finding on allegations of unfair labour practice and only seek to stop the practice.

The Labour Court or tribunal does not have jurisdiction to assess damages arising from a complaint of an unfair labour practice.

Similarly, a Labour Court or tribunal faced with a complaint of sexual harassment cannot proceed and make an award for damages arising out of the sexual harassment.

The claim for damages was never properly before the arbitrator.

The arbitrator erred in dealing with the issue regarding damages suffered as a result of the sexual harassment as damages were not part of the arbitrator's terms of reference. His terms of reference were clear that he was required to deal with the unfair labour practice only. He dealt with the claim for damages out of his own initiative and wrongly so. He went on a frolic of his own.

The award was subsequently set aside by this court on the basis that the arbitrator lacked jurisdiction to award civil damages.

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

This is an appeal against the decision of the High Court upholding the respondents' special plea of prescription, and, consequently, dismissing the appellant's claim with costs.The appellant has noted her appeal against the entire judgment and prays, as per her amended prayer, that the judgment of the court a quo ...

This is an appeal against the decision of the High Court upholding the respondents' special plea of prescription, and, consequently, dismissing the appellant's claim with costs.

The appellant has noted her appeal against the entire judgment and prays, as per her amended prayer, that the judgment of the court a quo be set aside and substituted with an order dismissing the special plea with costs.

Background

This protracted and bitterly contested matter emanates from the following factual background:

The appellant was employed by the second respondent, reporting to the first respondent, who was the Chief Executive Officer of the second respondent. On 18 June 2014, the appellant issued summons against the respondents claiming damages for shock, pain and suffering, arising from alleged sexual harassment by the first respondent between September 2002 and June 2003.

According to the appellant, her resistance to the first respondent's unsolicited and predatory advances culminated in her dismissal from the second respondent's employment. Her dismissal was challenged and referred to arbitration. The arbitrator found in her favour after finding that she had been sexually harassed by the first respondent.

The arbitrator initially ordered both respondents to jointly compensate the appellant, but, in subsequent proceedings, he referred the parties to the High Court to adjudicate the appellant's claim for damages for sexual harassment.

Before the High Court, the respondents filed a special plea that the claim had prescribed by the time that summons were issued in June 2014.

The second respondent also excepted to the declaration on the basis that it did not disclose a cause of action by reason of the appellant's failure to specifically and properly allege vicarious liability on its part in respect of the first respondent's conduct.

The court a quo found that, by the end of 2003, the appellant was aware of every fact necessary to prove her claim for damages. However, instead of approaching the High Court for damages, she pursued her claim through the labour relations mechanisms of conciliation and arbitration. The arbitrator had no jurisdiction to assess damages arising from an unfair labour practice, and, therefore, could not award damages for sexual harassment. The claim for such damages was not part of the arbitrator's terms of reference and was not properly before the arbitrator.

In the circumstances, the court held that the setting in of prescription was not delayed, in terms of section 17(1)(d) of the Prescription Act, by the purported submission of the claim to the arbitrator. The claim for damages was raised before a competent court well after it had prescribed.

In the event, the court upheld the respondents' special plea of prescription and dismissed the appellant's claim with costs.

Submissions on Appeal

The appellant's position, as appears from her grounds of appeal and voluminous heads of argument, is that the question of sexual harassment was a labour matter to be first determined and disposed of by the arbitrator before any claim for delictual damages could be lodged at the High Court.

She further submits that the issues of sexual harassment and vicarious liability were part of the arbitrator's terms of reference.

Moreover, the arbitrator's finding of sexual harassment was not appealed against and remained unchallenged.

Thus, she contends that the question of damages, having been properly raised before the arbitrator, was not raised for the first time before a competent court well after her claim had prescribed.

Counsel for the first respondent submits, that, there is a fundamental distinction between a claim for compensation in a labour dispute and a claim for damages under the lex Aquilia. Therefore, since there was a different cause of action before the arbitrator as compared with that before the High Court, the reference to arbitration did not operate to interrupt the running of prescription on the claim for damages.

Counsel for the second respondent echoes the same position, but from a slightly different angle.

He submits that the appellant's claim of sexual harassment created two distinct rights:

(i) One was an exclusively labour matter;

(ii) While the other was purely for civil damages.

Consequently, the appellant's claims before the arbitrator did not have the effect of suspending the running of prescription as against the appellant's claim in the High Court.

However, he accepted that the rationale behind section 17(1)(d) of the Prescription Act was the need to avoid the multiplicity of litigation in respect of the same cause of action.

In casu, there are two critical factors that are not in dispute:

(i) Firstly, one of the questions referred to the arbitrator for determination was “whether or not sexual harassment was perpetrated on R.M. Mbatha by F.B. Zizhou in his capacity as Confederation of Zimbabwe Industries Chief Executive Officer.”

(ii) Secondly, in March 2014, the arbitrator found that the appellant had been sexually harassed and ordered the respondents to compensate her for the damages she had suffered.

However, as I have already indicated, the arbitrator subsequently referred the parties to the High Court to adjudicate the appellant's claim for damages for sexual harassment, as that was a matter that fell outside his jurisdictional remit.

In any event, the arbitrator's finding, that the appellant had been sexually harassed, remains extant. It has not been appealed against or otherwise challenged.

Whether Prescription Interrupted by Arbitration Proceedings

In light of the exchanges between the Court and the parties at the hearing of the appeal, the principal issue for determination in casu is the meaning to be ascribed to section 17(1)(d) of the Prescription Act [Chapter 8:11].

Section 17 of the Prescription Act enumerates the various circumstances in which the completion of prescription is delayed. Section 17(1)(d), which is specifically relevant in casu, provides as follows:

“(1) If -

…,.

(d) The debt is the subject matter of a dispute submitted to arbitration, or is the subject matter of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of a debtor or against a company in liquidation or against an applicant under the Agricultural Assistance Scheme set out in the Third Schedule to the Agricultural Finance Corporation Act [Chapter 18:02]; or…, and the period of prescription would, but for this subsection, be completed before or on, or within one year after, the date on which the relevant impediment referred to in paragraph (a), (b), (c), (d) or (e) has ceased to exist, the period of prescription shall not be completed before the expiration of the period of one year which follows that date.”

As a matter of interpretive principle, in the context of statutory provisions, it is trite that the courts lean towards an interpretation that gives full effect to the purpose for which the provision under consideration was enacted.

In my view, a broad and generous interpretation of section 17(1)(d) of the Prescription Act would give effect to the twofold purpose for which it was enacted:

(i) The foremost rationale of the provision is to avoid the situation where the same dispute is submitted for adjudication before multiple fora.

(ii) The second objective is to ensure that litigants whose disputes are submitted to arbitration are not prejudiced by being precluded from instituting proceedings before the courts, should it become necessary to do so, in respect of the same matters.

On this broad and purposive approach, where a matter is submitted to arbitration, the running of prescription would be arrested notwithstanding that a different remedy is later sought, provided that remedy arises from the same cause of action. To hold otherwise would, in my view, operate to erode the purpose for which section 17(1)(d) of the Prescription Act was created.

While I accept that a cause of action is conceptually distinct from the overlying debt that is claimed, the latter cannot exist in vacuo and must be predicated on the underlying cause of action.

In the instant case, the debt, being the claim for damages for sexual harassment, cannot be severed or divorced from the cause of action, which is the sexual harassment itself.

The question that was submitted to the arbitrator for determination was whether or not sexual harassment was perpetrated on the appellant. This is the same cause of action from which the appellant's claim for damages emanates.

On this basis, it must be accepted, that, the debt claimed by the appellant, being the damages for sexual harassment, constitutes the subject matter of the dispute that was submitted to arbitration.

It then follows that the running of prescription on the claim for damages was interrupted in accordance with the provisions of section 17(1)(d) of the Prescription Act.

The same conclusion is arrived at if one has regard to the broad definition of the term “debt” in section 2 of the Prescription Act [Chapter 8:11], viz:

“Without limiting the meaning of the term, [a debt] includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict, or otherwise.”

The debt sued for in the court a quo arose from the delict of sexual harassment, which delictual matter was also competently before the arbitrator.

The debt in casu comprises two separate but interrelated components, to wit, the delictual conduct perpetrated by the first respondent and the consequent claim for damages.

The arbitrator dealt with and determined the first component of the debt, which consequently gave rise to the claim for damages in the court a quo.

Thus, inasmuch as an essential component of the debt was before the arbitrator, the debt was the subject matter of the dispute submitted to arbitration, thereby interrupting the running of prescription on the claim for damages in the court a quo.

Potential Plea of Lis Alibi Pendens

I am fortified in the foregoing conclusion from a different practical perspective.

The argument that the appellant should have simultaneously, or conjunctively with the arbitration proceedings, pursued a separate suit for delictual damages in the High Court results in the untenable scenario where the arbitrator might possibly have made findings contradictory to those made by the High Court.

Quite apart from this potentially anomalous scenario, the principles governing the special plea of lis alibi pendens would have operated to impede the successful institution of a claim for delictual damages. This is because the claim would be premised on the same cause of action in a dispute between the same parties already pending before an arbitral tribunal.

The rationale behind the special plea of lis alibi pendens is akin to that underlying section 17(1)(d) of the Prescription Act, viz. the need to avoid potential duplication of litigation founded on the same cause of action.

This point was highlighted by the Appellate Division in Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571…, in interpreting the South African equivalent of section 17(1)(d) of the Prescription Act [Chapter 8:11]:

“The same duality of purpose can be seen, in my view, in section 13(1)(f) of the Act which is of direct relevance to the present case. The subsection applies 'if…, the debt is the object of a dispute subjected to arbitration.'

An arbitration agreement does not necessarily oust the jurisdiction of the court.

Despite the existence of such an agreement, the creditor may elect to institute legal proceedings, although he might be met by an application for stay of proceedings or a special plea to the same effect…,.

The court would, in practice, normally order a stay if requested to do so…,.

An arbitration agreement is therefore, in a sense, an impediment to the recovery of a debt by means of legal proceedings, but it is one, because it provides an alternative means of resolving disputes, which carries the approval of the law.

This applies a fortiori where a dispute has actually been subjected to arbitration.

The creditor is protected against the running of prescription because there exists an impediment to his approaching the ordinary courts, and the impediment exists because he is taking appropriate alternative steps to recover his debt. It is against this background that section 13(1)(f) of the Act should, in my view, be interpreted and applied.”

In casu, it would not have been practically possible for the appellant to institute proceedings for delictual damages in the High Court when another competent tribunal was already seized with an unfair labour practice arising out of the same cause of action.

This is so because the respondents would undoubtedly have pleaded lis alibi pendens and succeeded in that plea, thereby preventing the appellant from prosecuting her claim for damages.

Disposition

It follows from all of the foregoing that the appeal must succeed on the basis that the running of prescription against the appellant's claim for damages was interrupted by the submission to arbitration of her claim of sexual harassment by the respondents.

Thus, the prescriptive period would only have expired, in terms of section 17(1)(d) of the Prescription Act [Chapter 8:11], one year after the date of the award rendered in her favour.

Consequently, the appellant's claim for damages for sexual harassment, having been lodged in June 2014, within three months of the award rendered in March 2014, must be regarded as having been timeously lodged in the High Court.

It is accordingly ordered that:

1. The appeal be and is hereby allowed with costs.

2. The judgement of the court a quo be and is hereby set aside and substituted with the following:

“(i) The defendants' special plea of prescription is dismissed with costs.

(ii) The defendants shall plead to the plaintiff's claim within ten days from the date of the judgement handed down by the Supreme Court in Case No. SC80/18 as Judgment No. SC69/2018.”

SC65-21 : STARAFRICA CORPORATION LIMITED vs ZIMBABWE SUGAR REFINERY WORKERS UNION
Ruled By: GWAUNZA DCJ, BHUNU JA and BERE JA

This is an appeal against part of the judgment of the Labour Court (the court a quo) handed down on 26 January 2018. The appeal is against that part of the judgment which upheld the arbitrator's award granting the respondent's members an 11 percent wage increase.FACTUAL BACKGROUND OF THE CASEThe ...

FACTUAL BACKGROUND OF THE CASE

The facts giving rise to this appeal are by and large common cause. The undisputed facts are that the appellant is the owner of a group of companies whereas the respondent is a trade union representing employees of Gold Star, a trading division of the appellant.

The parties deadlocked during collective bargaining negotiations for wage increases for the period 1 January 2011 to 30 June 2011. The respondent was claiming a basic salary increase from US$157 to US$180 per month.

It did not claim any increase for housing allowance on behalf of its members.

On the other hand, the appellant objected to the respondent's members being awarded any increase pleading economic hardship.

Both parties proffered evidence before the arbitrator. Having carefully considered the evidence before him, he issued the following order:

“I herein award as follows:

(a) Basic salary is increased from US$157, by 11 percent, to US$174.27 per month for the lowest paid employee.

(b) Housing allowance is increased from US$50, by 11 percent, to US$56.50.

(c) The total award per lowest paid employee is US$230.77.”

In coming up with that award, the arbitrator took into account the employees basic needs and weighed them against the employer's economic hardship.

In exercising his discretion, he came to the conclusion, that, although the company was in economic dire straits, with proper management and re-alignment of its operations, it could afford an increase of 11 percent across the board for both wages and housing allowances.

This is what the arbitrator had to say at p2 of his award:

“The 2011 financial statement also showed a loss of US$16,375,557. Clearly, the fortunes of the company are not that bright. The cost of employment seems to be on the higher side, but, it appears the management salaries chew also a huge chunk. Those are some of (the) things that also need alignment. The other costs were for was sugar (sic) production which seems to be on the higher side.

However, the cost should be recovered from sale through proper pricing.”

In assessing the basic needs of the employees, the arbitrator accepted and took into account that it was common cause that rentals in the high density suburbs were pegged at US$60 to US$80 per month. He also found, that, it was common cause that groceries amounted to US$100 per month per person.

The arbitrator also took into account the comparative evidence placed before him, that employees in related sub-sectors earned a total of between US$250 to US$281 per month.

In conclusion, he remarked that…,.:

“For the avoidance of doubt, I have taken into consideration the harsh environment the employees are in and the company…,. However, had the company been performing, I would have awarded a US$300 basic salary increase and housing allowance of over US$100 - but that would be to bury the company.”

Aggrieved by the arbitrator's award, the appellant appealed to the court a quo with partial success.

Its complaints were that the arbitrator erred in relying on financial statements of the entire Group of companies instead of only on those of Gold Star.

It further complained that the arbitrator awarded the employees an increase in housing allowance which they had not asked for.

The court a quo upheld the appellant's complaint that the arbitrator had misdirected himself in awarding an increase in housing allowances which no one had asked for. It however dismissed the appellant's appeal against the award on wage increases of 11 percent.

The appellant's grounds of appeal raise a single issue for determination by this Court.

The sole issue for determination is whether or not the court a quo erred in upholding part of the award granting the employees an 11 percent salary increase.

ANALYSIS OF THE FACTS AND THE LAW

Whether or not the court a quo erred in upholding the arbitrator's award, of an 11 percent wage increase, is a question of fact.

It is trite and a matter of elementary law, that, for the appellant to succeed, it must prove, on a balance of probabilities, that, the award was so irrational in its defiance of logic such that no arbitrator properly exercising his or her discretion would have made such an award: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 64 (S) and Sable Chemical Industries Ltd v Easterbrook 2010 (2) ZLR 342 (S).

THE LAW

The appellant's appeal is premised on the well-known principle of Company Law, to the effect that a company has a separate and distinct existence from other personalities as enunciated in the familiar case of Salomon v Salomon & Co Ltd [1897] AC 22 (HL).

In that case, LORD HALSBURY LC had this to say:

“It seems to me impossible to dispute, that, once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself: and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.”

The principle of law laid down in Salomon v Salomon & Co Ltd [1897] AC 22 (HL) has found wide recognition in our jurisdiction in a plethora of cases.

In Deputy Sheriff Harare v Trinpac Investments (Pvt) Ltd & Anor HH121–11, PATEL J…, restated the legal principle as follows:

“The cardinal principle of Company Law, as enunciated in Salomon v Salomon & Co Ltd [1897] AC 22 (HL) and Dadoo Ltd & Others v Krugersdop Municipal Council 1920 AD 530 at 550 is that a company is a separate entity distinct from its members.”

Applying the timeless dictum laid down in Salomon v Salomon & Co Ltd [1897] AC 22 (HL), it is plain that entities comprising a Group of companies maintain their separate and distinct legal personalities although they fall under one umbrella or legal owner.

Latching onto that doctrine, learned counsel for the appellant argued, that, as the appellant had a separate and distinct legal personality, the arbitrator erred in having regard to the financial statements of the whole Group. He ought to have restricted himself to the financial statements of Gold Star; so the argument goes.

The rule in Salomon v Salomon & Co Ltd [1897] AC 22 (HL) is however not cast in stone.

It is only a general rule subject to exceptions, particularly in labour matters, where the courts and tribunals are enjoined to dispense equitable social justice.

In DHN Food Distributors Ltd v London Borough of Tower Hamlets [1976] 3 All ER 462 (CA)…, the court observed that:

“PROFESSOR GOWER, in his book on Company Law, says:

'There is evidence of a general tendency to ignore the separate legal entities of various companies within a Group and to look, instead, at the economic entity of the whole group.'

This is especially the case when the parent company owns all the shares of the subsidiaries, so much so that it can control every movement of the subsidiaries. These subsidiaries are bound hand and foot to the parent company and must just do what the parent company says….,.

This Group is virtually the same as a partnership in which all the three companies should, for present purposes, be treated as one and the parent company should be treated as that one.”

The principle that emerges quite clearly from DHN Food Distributors Ltd v London Borough of Tower Hamlets [1976] 3 All ER 462 (CA), is that, in appropriate cases involving Group or holding companies and their subsidiaries, the court or tribunal is not strictly bound by the dictates of the doctrine of separate corporate legal personality.

This enables them to look at the economic outlook of the whole Group in order to do real and substantial justice between the parties as the economic perspective of the Group and its subsidiaries may be intricately interwoven and difficult to unravel unless holistically considered.

It is ironic, that, the appellant is objecting to being treated as a partner of Gold Star when it sowed the seeds of implied partnership by intervening on behalf of Gold Star and litigating on its behalf. By so doing, it became the employer, in partnership with Gold Star, which was not a party to the proceedings.

At p17 of the record of proceedings, learned counsel for the appellant acknowledged that the appellant was legally obliged to produce the questioned statements in terms of section 76(1) of the Labour Act.

The section provides as follows:

“76 Duty of full disclosure when financial incapacity alleged

(1) When any party to the negotiation of a collective bargaining agreement alleges financial incapacity as a ground for his inability to agree to any terms or conditions, or to any alteration of any terms or conditions thereof, it shall be the duty of such party to make full disclosure of his financial position, duly supported by all relevant accounting papers and documents, to the other party.”

It is common cause, that, it is the appellant that was pleading financial incapacity to pay the increased wages claimed by the respondent.

Thus, by virtue of section 76(1) of the Labour Act, it was obliged to produce its own financial statements to justify financial incapacity to pay the amounts claimed.

Gold Star was not obliged to produce any financial statements as it was not a party to the proceedings and had not pleaded incapacity to pay the amounts claimed.

In any case, at p12 of the record of proceedings, the appellant makes it clear that there were no separate financial statements for Gold Star. Learned counsel for the appellant submitted that:

“There is need for full disclosure; we have consolidated accounts for the whole Group it does not make individual company (statements) financials.”

That statement puts this case squarely within the ambit of DHN Food Distributors Ltd v London Borough of Tower Hamlets [1976] 3 All ER 462 (CA). This is for the simple, but good, reason that the appellant was in absolute control of the Group's finances to the exclusion of its subsidiaries - including Gold Star.

This explains why it litigated in its capacity as the employer, without joining Gold Star, which it now alleges is the real employer separate and distinct from it.

Had it been so, then the appellant would undoubtedly have joined Gold Star to the proceedings considering that it was ably represented by counsel at every stage of the protracted proceedings.

This it did not do, thereby exposing itself as the real employer. Had it not been the real employer, it could not have fought Gold Star's battles in its absence and without its mandate.

Section 3(1) of the Labour Act only applies to employers and employees except those excluded under section(3). The appellant, not being one of those excluded by the Labour Act, it is fully bound by the Labour Act as the employer.

Thus, the arbitrator's award binds the appellant, and not Gold Star, which was not a party to the proceedings.

That being the case, we find no merit in the appellant's protestations that the arbitrator improperly pierced the corporate veil.

We come to that conclusion because the appellant appeared before the arbitrator and argued the case in its capacity as the employer and not a proxy of Gold Star; thus, the arbitrator correctly treated it as such.

The appellant's reliance on the cases of Mkombachoto v Commercial Bank of Zimbabwe & Anor 2002 (1) ZLR 21; Sheriff & Ors v Dube & Ors 2014 (2) ZLR 688…, and Pacific Ltd v Lubner Controlling Investments (Pty) Ltd & Ors 1993 (2) SA 784 (C) is misplaced as the award had nothing to do with ordering the appellant to pay anyone's debts or piercing the corporate veil.

The appellant was simply being ordered to pay, in its personal capacity, as the employer.

WHETHER THE ARBITRATOR'S AWARD WAS IRRATIONAL

We now turn to consider whether the arbitrator's award was irrational, as alleged by the appellant, or at all.

The appeal is premised on the argument that the award is irrational in that it was made in circumstances where the appellant was in financial distress and in no capacity to pay the salary increase of 11 percent as ordered by the arbitrator.

On the other hand, the respondent countered, that, the appellant was obliged to pay a decent living wage to its employees.

In argument, it was submitted, that, Zimbabwe, having ratified the United Nations instrument on the Universal Declaration of Human Rights 1948, it was bound by its provisions.

It is pertinent to note, that, Zimbabwe has not ratified this Universal Declaration of Human Rights. However, it is an instrument that is universally recognised and applied in this jurisdiction.

Article 23(3) of the Universal Declaration of Human Rights 1948 states that:

“Every person who works has a right to just and favourable remuneration ensuring for himself and herself an existence worthy of human dignity, and supplement, if necessary, by other means of social protection.”

Further reliance was placed on Article 11(1) of the International Covenant on Economic, Social and Cultural Rights 1966, which provides that:

“The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

The principles set out in the two instruments are of fundamental universal importance bidding the judiciary and tribunals to uphold and preserve human integrity and the dignity of workers.

Although acknowledging that the respondents are entitled to a living wage, the arbitrator found it imperative to balance the employees interests against the employer's capacity to pay the increased wages.

As alluded to elsewhere in this judgment, the arbitrator made a careful analysis of the facts before him and arrived at a delicate balance of the two competing interests before him. He finally came to the conclusion, that, although the appellant had made a loss, its employees were entitled to a modest 11 percent wage increase.

Comparative evidence proferred by the respondent shows that, even after the increase, its members were some of the least paid in the industry.

It appears that the appellant is labouring under a serious mis-apprehension that an employer who makes a loss cannot be ordered to pay its employees any increase in wages.

The mere fact that an employer is operating at a loss is no licence for it to pay slave wages not worthy of human dignity.

We are of the considered view, that, an employer operating at a loss may still be ordered to pay a reasonable wage increase to its employees to avoid them falling into destitution and loss of human dignity.

An employer who cannot pay decent wages pertaining to the industry has no business continuing to operate subjecting its employees to slave wages.

The appellant's plea of incapacity to pay lacks merit in circumstances where it was unable to rebut the respondent's allegation that its management were being paid huge salaries. It also failed to rebut the evidence to the effect that it could afford the increase if it were to shed excess labour in the form of casual labour.

It is also ironic that the appellant accuses the arbitrator of irrationality by suggesting that one of its subsidiaries, Country Choice, which made a profit, could prop up Gold Star. This is because Country Choice was already financially assisting another distressed unit of the respondent in Bulawayo.

This prompted the Arbitrator to remark, at p149 of the record of proceedings, that:

“The respondent submitted, that, its business is facing viability challenges since the inception of the US dollar in 2009 to the effect that its Bulawayo Plant was forced to close. The Bulawayo Plant's financial burdens are being incurred by the Harare Plant and Country Choice Foods….,.”

There is therefore no irrationality in the suggestion that Country Choice Foods could assist its distressed sister company financially.

DISPOSITION

In the result, we come to the conclusion, that, there is absolutely no merit in this appeal. Costs will follow the result.

It is accordingly ordered that:

1. The appeal be and is hereby dismissed with costs.

2. The appellant bears costs of the appeal.

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.BackgroundThe appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. ...

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.

Background

The appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. Their periods of employment ranged from 2007 and 2008 until January and April 2011 when their contracts of employment expired by effluxion of time.

Their contracts were not renewed because the project for which they were employed was finally wound up in 2011.

In July 2010, in a separate matter involving the respondent, its Workers Committee, and its employees, the first arbitrator (Nasho) ordered the payment of back pay, from 1 March 2009 to the date of the award, in line with the multi-currency system.

In conformity with that award, a Works Council Agreement was concluded, on 15 September 2010, to fix the back-pay due to all employees and the salary structure for non-managerial employees from 1 January 2010 onwards.

In a subsequent matter, the appellants in casu challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

The second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012.

On appeal, the arbitral award was upheld by the Labour Court. That decision is currently pending an application for leave to appeal to this court.

On 10 December 2012, following the rejection of their unfair dismissal claim by arbitrator Mugumisi, the appellants filed a further claim for the payment of arrear salaries and benefits.

The third arbitrator (Mambara) found in their favour and awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimant was retrenched.

The respondent, being aggrieved by that award, applied to the Labour Court for the review of the award.

Decision Appealed and Grounds of Appeal

The court a quo rejected two of the grounds of review mounted by the respondent.

It found, that, the Mambara award did not improperly seek to review or enforce the Nasho award. It also found, that, the prior decision of the court, upholding the Mugumisi award, was different from the matter currently before it because the former concerned back pay from the date of termination to the date of reinstatement as opposed to salary and benefits accrued before termination.

Consequently, it was not necessary that the current matter be held in abeyance pending the determination of the appeal in the earlier matter.

The court a quo found in favour of the respondent on the remaining two grounds of review:

(i) Firstly, it held, that, the Mambara award did operate to review and alter the court's previous decision that the appellants had not been unfairly dismissed. This resulted in uncertainty on the employment status of the appellants and the possible institution of other unnecessary claims.

Moreover, the arbitrator's findings, that, the appellants had implied permanent contracts of employment and that they had been retrenched were equally erroneous.

(ii) Secondly, the court found, that, the issue of the appellants grades was not part of the arbitrator's terms of reference. Thus, the arbitrator had misdirected himself in going beyond his remit and basing his award on extraneous terms of reference.

The court accordingly held, that, the review succeeded on these two grounds.

The arbitral award was set aside and substituted with the dismissal of the appellants claim.

The grounds of appeal in casu are that the court a quo erred in the following respects:

(i) In concluding, that, the arbitrator's award, mandating the quantification of an admitted liability, had the effect of altering the court's previous judgment.

(ii) In placing any significance on the arbitrator's misuse of the word retrenchment.

(iii) In concluding, that, the arbitrator had effectively conducted a re-grading exercise in determining what was due to the appellants.

(iv) In concluding, that, there was a reviewable issue raised before the court....,.

The Merits

Counsel for the appellants submits, that, the arbitrator did not go outside his terms of reference.

The Mambara award found, that, the 2010 Works Council Agreement (the 2010 Agreement) applied to all of the respondent's employees, including the appellants, in conformity with the Nasho award. It did not re-grade the appellants but simply provided that each claimant be paid in accordance with the 2010 Agreement from 1 January 2010 to the date of termination.

As regards the actual wording of the operative part of the award, he proffers the strange argument, that, the reference to 1 January 2010 is a mere typographical error and should have been a reference to 1 February 2009, which was the commencement date for payment claimed by the appellants.

He further argues, equally startlingly, that the use of the term “retrenched” in relation to the closing date for payment in the Mambara award is of no significance and must be regarded as being inconsequential. Rather, it must be read and construed as relating to the respective date of termination of employment of each appellant.

Counsel for the respondent counters, that, the arbitrator clearly went beyond the terms of reference set out at the beginning of his award.

Moreover, he erroneously applied the terms of the 2010 Agreement to the appellants by conflating various claims. The 2010 Agreement was confined to permanent employees and did not extend to the appellants who were employees on fixed term contracts.

Finally, he notes, that, the references to 1 January 2010 and retrenchment, in the operative part of the arbitral award, should not be regarded as mere typographical errors.

On the question of re-grading, arbitrator Mambara rejected the respondent's argument, that, the appellants had no specific grade in terms of their contracts of employment. Instead, he applied the Nasho award, which ordered that the salaries of the respondent's employees be regularised, coupled with the salaries specified in the 2010 Agreement.

The court a quo found, that, the arbitrator misdirected himself in re-grading the appellants and thereby going outside his terms of reference.

It is common cause, that, the arbitrator's terms of reference raised an unfair labour practice in the respondent's alleged failure to pay arrear salaries and benefits due to them from 1 February 2009 to the date of termination of their respective contracts of employment.

The arbitrator dealt with this question by following the Nasho award and adopting the lowest salary figure payable as stipulated in the 2010 Agreement.

In my view, this did not entail any re-grading of the appellants but simply involved applying the sums derived from the exercise conducted by the Works Council.

I am therefore unable to agree with the finding of the court a quo that the arbitrator exceeded his terms of reference.

The appeal accordingly succeeds in this particular inconclusive respect.

On the other hand, the operative part of the order delivered by the arbitrator is extremely problematic. It states:

“That the Respondent be and is hereby ordered to pay to each and every Claimant arrear salaries and benefits per the 16 September 2010 Works Council Agreement from 1st January 2010 to the date each and every claimant was retrenched.”…,.

I have no doubt that the learned arbitrator was alive to the fact that he was called upon to deal with claims for salaries and benefits from 1 February 2009 to the date of termination of each appellant's contract of employment.

This emerges clearly from his stated terms of reference and his comments at the beginning, and end, of his award.

I also have no quarrel with the trite proposition that technicalities should not be allowed to impinge upon or obstruct the delivery of justice in labour matters.

Nevertheless, I take the view that the order made by a judicial tribunal constitutes the decisive gravamen of its adjudicative process.

Moreover, it is that order that must be capable of obedience and practical enforcement by the parties concerned.

Its precise wording and exactitude of expression are therefore of paramount importance.

Consequently, where it is recklessly mis-pronounced, as it was in casu, it fails to achieve its fundamental purpose and cannot be condoned or endorsed by an Appellate Court.

To use the celebrated MacFoy phraseology, it is an arrant nullity and everything founded upon it must collapse.

In the instant case, the mis-citation of the date from which the appellants entitlement to their claims arose, i.e. 1 January 2010, is patently erroneous inasmuch as it fails to address the preceding period from 1 February to 31 December 2009.

Again, the reference to the date when each claimant was “retrenched” is entirely misplaced in the context of termination of contracts of fixed duration by effluxion of time.

As was quite correctly observed by the court a quo, the Mambara award operates to alter the earlier findings of the Mugumisi award, as confirmed by the Labour Court, that the appellants had not been unfairly dismissed.

The attendant implication of permanent employment status results in lack of certainty and the potential creation of other unnecessary claims.

In the event, I take the view that the two critical errors in the operative part of the order delivered in the impugned award are so fundamental to its validity that they cannot be disregarded and swept away as mere technicalities or typographical errors.

This conclusion effectively entails the dismissal of the remaining three grounds of appeal.

Scope of 2010 Agreement

Having disposed of the stated grounds of appeal, I still think it necessary, in the interests of justice and the finality of litigation, to consider a crucial aspect of the matter that was canvassed before the arbitrator, and the court a quo, but not properly addressed or determined by either tribunal.

This aspect concerns the exact scope of the 2010 Agreement and its possible extension to the appellants.

The arbitrator noted, that, the Nasho award required the appellants contracts to be regularised in line with the multi-currency system, from 1 March 2009 onwards. He then turned to the 2010 Agreement and concluded that it applied to the appellants.

In so doing, he referred to the minutes confirming the Agreement and signed by the parties on 27 September 2011. However, he did not reproduce the relevant portions of the Agreement or the confirmation minutes to explain or justify his conclusion that the benefits accruing from the Agreement extended to the appellants.

The court a quo also noted the operative part of the Nasho award that called upon the respondent to regularise its employees contracts. It then referred to the subsequent 2010 Agreement in which “it was resolved that a net salary of $500 per month be paid to all employees across the board for the period 1 March 2009 to December 2009.”

It further noted, that “the Works Council agreed to a salary structure for 1 January 2010 to date for its non-managerial grades” ranging from $500 to $1,092.

Again, the court did not reproduce the relevant clauses of the 2010 Agreement. Nor did it call for any evidence to be adduced, as it was statutorily empowered to do, from the signatories to that Agreement, to clarify or explain its provisions and scope of coverage.

In the event, the court did not proceed to consider the precise ambit of the Agreement and its implications for the appellants claims before the arbitrator.

Indeed, it made no finding whatsoever on this critical aspect of the matter, despite having recognised some sequential and causal nexus between the Nasho award and the 2010 Agreement.

It appears to be common cause, although even this may need clarification, that the present 153 appellants were part of the 1,078 claimants and beneficiaries of the Nasho award rendered in July 2010.

That award also ordered the parties involved to reconvene through the Works Council to regularise the employees contracts in line with the multiple currency system with effect from 1 March 2009.

Thereafter, the Works Council was convened in September 2010 and concluded the Agreement presently under consideration.

If this sequence of events is correct, and if the 2010 Agreement was designed to embrace all of the respondent's employees, it would follow that the appellants have an eminently justifiable claim to the benefits accruing from that Agreement.

In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu.

This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.

As regards costs, in view of the partial success coupled with the partial failure of the appeal, as well as the impending remittal of the matter to the court a quo, I think it fitting that each party should bear its own costs.

In the result, it is ordered as follows:

1. The appeal succeeds in respect of Ground 3 and is dismissed in respect of Grounds 1, 2 and 4 in the Notice of Appeal.

2. The judgment of the court a quo is set aside insofar as it relates to Ground 3 in the Notice of Appeal.

3. The matter is remitted to the court a quo:

(i) To determine, on the basis of the specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the Agreement, whether or not the salaries and benefits stipulated in that Agreement were intended to apply to the appellants; and

(ii) If, the answer to that question is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.

4. Each party shall bear its own costs in respect of this appeal.

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

Once a certificate of no settlement is issued to the parties to a dispute of right, or unfair labour practice involving a dispute of right, the matter cannot be referred to arbitration. It must be the subject of the adjudication process before the Labour Court....,.Only disputes of interest are referable ...

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD
Ruled By: 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 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 the respondent.

The information in the papers placed before the court, in addition, confirms that the 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. The 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 [Chapter 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 the applicant did respond to the application on the 18th of 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.

The 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.

The 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 [Chapter 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:
(i) A reasonable explanation for the default;
(ii) The bona fides of the application to rescind; and
(iii) 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 SC16-86.

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).

The 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, the 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 the 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.

The 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.

The 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 Labour 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 [Chapter 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 [Chapter 7:15], 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 of the Unicitral Model Law, Arbitration Act have found specific commentary in case law.

For instance, CHIWESHE JP, in the case of Benson Samudzimu v Dairiboard Holdings HH204-10 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 of the Arbitration Act 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 of the Arbitration Act that would justify the invocation of section 5 of the Arbitration Act.

I say this because the issues envisaged in Article 34 of the Arbitration Act, 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 of the Arbitration Act: see 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).

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 of the Abitration Act 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 of the Arbitration Act in favour of the Labour Court: see De Wet v Deetlefs 1928 AD 286…, 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 of the Arbitration Act, 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.

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: 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 the 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.

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.

The applicant was awarded various sums of money totalling US$19,125 plus interest thereon at the prescribed sum, calculated from the date of the arbitral award to the date of payment in full.

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.

The respondent filed a notice of opposition on 19 December 2012. The grounds of opposition were;

(i) Firstly, that the applicant was never its employee, but a mere contractor;

(ii) Secondly, that there was need for oral evidence from both parties;

(iii) Thirdly, that no quantification was done by both parties.

(iv) 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.

The 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 the 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, the 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 the 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 the respondent to frustrate him and delay in paying him his dues.

At the hearing of the matter, both parties abided by their heads of argument and had nothing of value to add.

The 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....,.

In regards to the merits of the matter, the 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 HH93-13 as authority for that proposition where the court stated that…,:

“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.”

The 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”…,.

And/or Article 36(3) of the Model Law 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.”

In my view, it was open to the 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: see Article 36(3)(b) of the Model Law.

The respondent, unfortunately, did not make specific reference to Article 36.

The 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, the respondent was invoking the provisions of Article 36(1)(a)(ii) of the Model Law.

It is trite, that, the onus of proving that inadequate notice of the hearing was not given is on the respondent.

The 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, the 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 the 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…,.”

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 the respondent failed to attend two scheduled hearings before the arbitrator and did not provide any explanation as to why they failed to attend.

The 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 2011, the respondent filed written submissions with the arbitrator. The applicant, then the claimant, filed his written submissions in August 2012. The 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 respondent.

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….,.”

The letter was copied to the respondent's legal practitioners of record, and served on them on 11 October 2012.

The applicant wrote to the respondent and attached a copy of the arbitral award on 27 November 2012.

The respondent appealed against the arbitral award on 15 January 2013.

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.

The applicant averred, that, the 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.

This averment, unfortunately, was not denied by the respondent in its opposing papers.

The respondent was not heard orally, but, it had placed its written submissions before the arbitrator. The applicant was also not heard, orally, on the merits of the matter.

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.”

Based on the provisions of Article 19 of the Model Law, 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.

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 defence, 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, the 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.

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 [Chapter 28: 01] provides for the registration of arbitral awards, to any court of corresponding monetary jurisdiction, for purpose of enforcement.

Section 92E of the Labour Act, 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.”

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 HH04-12; Elvis Ndluvu v Higher Learning Centre HB86-10; Net-One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275; DHL International Ltd v Clive Madzikanda HH51-10; Benson Samudzimu v Dairibord Holdings HH204-10.

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 an 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.

Section 92E(3) of the Labour Act 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.

The 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.

None of those defences 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 by the arbitrator, Ms. E. Maganyani, be and is hereby registered as an order of this court.

(ii) The respondent shall pay costs of suit.

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Law Portal
Zimbabwe

Arbitration re: Approach, Proceedings Before an Arbitrator and Registration and Execution of Arbitral Awards

View Appeal
HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

SC65-21 : STARAFRICA CORPORATION LIMITED vs ZIMBABWE SUGAR REFINERY WORKERS UNION
Ruled By: GWAUNZA DCJ, BHUNU JA and BERE JA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD
Ruled By: TSANGA J

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

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Law Portal Zimbabwe

Arbitration re: Approach, Proceedings Before an Arbitrator and Registration and Execution of Arbitral Awards

View Appeal HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O. Ruled By: KUDYA J

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE Ruled By: GOWORA J

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS Ruled By: PATEL J

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS Ruled By: MATHONSI J

Appealed HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: DUBE J

View Appeal SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

SC65-21 : STARAFRICA CORPORATION LIMITED vs ZIMBABWE SUGAR REFINERY WORKERS UNION Ruled By: GWAUNZA DCJ, BHUNU JA and BERE JA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD Ruled By: TSANGA J

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE Ruled By: CHIGUMBA J

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Law Portal
Zimbabwe

View Appeal
HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

SC65-21 : STARAFRICA CORPORATION LIMITED vs ZIMBABWE SUGAR REFINERY WORKERS UNION
Ruled By: GWAUNZA DCJ, BHUNU JA and BERE JA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD
Ruled By: TSANGA J

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J