MUTEMA J: On 8 September, 2010 I erroneously granted an order, following a
chamber application, registering an arbitral award in favour of the applicant
against the Ministry of Finance as if the correct respondent was Smallholder
Micro-Irrigation Development Support Programme (“the Programme”). The Programme
is donor-funded by the European Development Fund.
Subsequent to the registration of
the arbitral award, it was brought to my attention via my sister judge – Gowora
J – who had dealt with an urgent chamber application by the Programme to stay
the sale in execution of the Programme's motor vehicles which had been attached
pursuant to the enforcement of the arbitral award, that the award had been
registered against a wrong respondent. A closer scrutiny of the papers
confirmed the error.
In order to rectify the error and
the consequent injustice, I drew the parties' attention to the anomally. They
filed their respective submissions on the issue and on 4 November, 2010 I
issued the following order:
“The order made on 8 September, 2010
registering an arbitral award in favour of the applicant against the Small
Holder Micro-Irrigation Development Support Programme as the respondent was
issued in error. The proper respondent should have been the Ministry of
Finance. That order is accordingly rescinded”.
The applicant has now noted an
appeal against the above quoted order to the Supreme Court. The reasons for my
order have been requested. These are they:
Order 49r 449(1)(a) allows a judge,
either mero moto or on application by
any party affected, to correct, rescind or vary any judgment or order
erroneously granted in the absence of any party affected thereby while subr
(1)(b) allows the same to be done if the order was granted as a result of a
mistake common to the parties. Either of the subrules applied in the present
matter, hence I invoked that Rule.
What can be gleaned from the papers
is that the contract of employment was entered into on 3 November, 2008 between
the applicant as employee and the National Authorising Officer for the
Programme, viz the Ministry of Finance as the employer. It is common cause that
the Programme is a separate legal person from the Ministry of Finance.
The letter of applicant's suspension
from work dated 20 October, 2009 emanated from the Ministry of Finance. It was
authored by a deputy National Authorising Officer of that Ministry. So was the
letter containing the misconduct charge dated 30 October, 2009.
Following an abortive disciplinary
hearing at the Ministry of Finance, the applicant took her case to the Ministry
of Labour – against, not the Programme but the Ministry of Finance. A labour
officer referred the matter to arbitration after conciliation failed. It is common
cause that before the arbitrator, the parties were the applicant as claimant
and the Ministry of Finance as respondent. The award reads:
“That respondent pay to the
applicant salary arrears and benefits amounting to E51 933,90 within 7 days
from date of the interim determination”.
It
goes without quarrel, in view of the foregoing, that the Programme had nothing
to do with applicant's misconduct charge, it therefore was not her employer
hence it did not feature before the labour officer or the arbitrator. It was
never represented before the two tribunals. The award was clearly not against
it, it being a separate legal entity. When the applicant resumed duty following
her reinstatement pursuant to the arbitral award, the Programme Manager,
Nhlema, on 26 May, 2010 wrote to the Ministry of Finance asking for
instructions on how to proceed. He also on the same date wrote to the applicant
saying inter alia “I now await formal
instructions from the employer on how to proceed”. This buttresses the view that
the Ministry of Finance was applicant's employer. Even the letter written by
the applicant's legal practitioners on 11 November, 2009 complaining about the
applicant's suspension from duty and disciplinary enquiry was addressed not to
the Programme but to the Ministry of Finance.
Also
common cause is the fact that the Programme was cited for the very first time
only in the application for the registration of the arbitral award in this
Court. This escaped my eye for had I detected it I would not have granted the
application for the registration of the award. What applicant did in this
respect connotes an element of misleading the court if it was done to
circumvent the difficulty of executing against the Ministry of Finance's assets
or property. It is a wonder that the applicant seemed not to be in the know as
regards who her employer was.
Order
39 r328 clearly states that any process which names a wrong person as a party
is invalid. In casu a wrong
respondent was named in the process of registering the arbitral award as well
as in the writ of execution. Such a process is accordingly invalid.
The
foregoing are the reasons for the order/judgment that I gave.
Mbidzo, Muchadehama
& Makoni,
applicant's legal practitioners.
Civil Division of the
Attorney-General's Office, Ministry of Finance's legal practitioners
Dururu
& Associates,
Programme's legal practitioners
