Chabikwa v Hon. Long & Anor (HC 1603 of 2016; HH 94 of 2017; Ref HC 3360 of 2015) [2017] ZWHHC 94 (15 February 2017)

1 HH 94-17 HC 1603/16 Ref HC 3360/15 WONDER CHABIKWA versus HONOURABLE ARBITRATOR D. E. B. LONG and IETC ZIMBABWE (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE TAGU J HARARE, 17 January and 15 February 2017 OPPOSED MATTER T Kawonde, for the applicant P Ranchod, for the 2nd respondent TAGU J: This is an application for condonation of late noting of an application for review. The background to this matter is that the first respondent granted an arbitral award in favour of the second respondent on 17 December 2014. The award was registered with this court in Case No. HC 3360/15 in July 2015 and registration was not opposed by the applicant. The applicant was then represented by a legal practitioner. In an attempt to set aside the registration of the Arbitral Award the applicant thereafter filed three different applications in the High Court. Firstly the applicant filed an urgent chamber application in Case No. HC 10574/15. This application was dismissed. Secondly, the applicant filed an application for a declaratory order under case No. HC 10804/15. Again this application was dismissed. In a spirited effort to frustrate the arbitral award the applicant filed a third application for an Interpleader Proceedings under case No. HC 07/16. The third application was again dismissed. While these legal battles were going on and the applications dismissed the Arbitral Award was executed and the applicant’s assets were sold. The applicant now seeks for the fourth time to have the Arbitral Award reviewed on the basis that the first respondent failed to read and interpret the contract between himself and the second respondent. HH 94-17 HC 1603/16 Ref HC 3360/15 The applicant submitted that because of lack of proper legal advice from Allied Legal Aid Society at the time of the grant of the order, he did not take appropriate action until the second respondent obtained a writ of execution against movable property in August 2015 which culminated in the attachment of his property. As a result he failed to file his application by February 2015, within 8 weeks of the order in terms of the rules. He submitted further that it would be in the interest of justice for him to be allowed to file the application for review out of time to pave way for a decision to be made in the matter on the merits. The application for condonation was opposed by the second respondent on the basis that the requirements for condonation have not been satisfied. THE LAW In applications of this nature the principles that guide this court in granting or refusing condonation of non-compliance with its rules are the same with respect to appeals and reviews. In the determination of an application for condonation and extension of time within which to appeal, the factors a court has to consider have been stated in numerous decisions of this court and the Supreme Court. In Maheya v Independent African Church S-58-07 it was stated at p 5 of the cyclostyled judgment that: “In considering applications for condonation of non-compliance with its rules the court has discretion which it has to exercise judicially in the sense that it has to consider all the factors and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non- compliance, the explanation therefor, the prospects of success on appeal, the importance of the case, the Respondent’s interests in the finality of the judgment, the convenience to the court and the avoidance of unnecessary delays in the administration of justice.” The same rules were applied by CHIDYAUSIKU CJ in dismissing an appeal from the High Court against refusal to grant condonation of late noting of review in the case of Muroiwa v Delta Operations Ltd & Anor 2002 (2) ZLR 30 (S) at p 4 of the judgement where he commented as follows: “In dismissing the application for condonation, the learned judge in this case took into account: (1) The duration of the delay. (2) The explanation for the delay. (3) The appellant’s prospects of success on the merits. HH 94-17 HC 1603/16 Ref HC 3360/15 The above factors were relevant to the issue the learned judge had to determine. Accordingly, there was no misdirection. The learned judge concluded that the delay in this case was inordinate. It is common cause that the determination sought to be reviewed was made on 2 April 1998 and the review was launched in August 2000. There is no doubt that the learned judge was correct in concluding that this delay, in excess of two years was inordinate.” APPLYING THE LAW TO THE FACTS (a) Whether or not the delay in noting the application for review was inordinate? In casu the first respondent granted an arbitral award in favour of the second respondent on 17 December 2014 which award was subsequently registered unopposed with this court on 1 July 2015 under case HC 3360/15. In terms of the rules the applicant ought to have filed his application for review within 8 weeks from the 17th December 2014. For a period in excess of one year the applicant did not file his application for review. He in fact lodged three separate applications with this court all of which were dismissed. The application for review was filed on 18 February 2016 which was about 12 months out of time. On the face of it the delay in filing the application for review was inordinate. See Muroyiwa v Delta Operations Ltd & Anor supra. (b) Whether or not the explanation for the delay was reasonable? The applicant submitted that he has always been dissatisfied with the conduct of the arbitral proceedings. He blamed his erstwhile legal practitioners who did not give him proper advice. To that extent three separate applications where lodged with this court all of which were dismissed. To him an application for review was apparent but was not made in time. The second respondent submitted that the explanation proffered by the applicant was unreasonable. It was the second respondent’s contention that it is no excuse for the applicant to state that he received bad legal advice at the relevant time. The second respondent cited the case of Beitbridge Rural District Council v Russell Construction Co 1998 (2) ZLR 190 (S) where the Supreme Court held that: “This court has, on a number of occasions, clearly stated that non-compliance with or a wilful disdain of the rules of court by a party’s legal practitioner should be treated as non- compliance or a wilful disdain by the party himself.” Second respondent, in supporting its contention further cited the case of Kombayi v Berkout 1988 (1) ZLR 53 (SC) where the Supreme Court again held that: HH 94-17 HC 1603/16 Ref HC 3360/15 “There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the sufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to neglect on the part of the attorney. The attorney after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are.” I share the same sentiments. If indeed the applicant treated this matter as important as he wants the court to believe there was no reason for the applicant failing to challenge its registration with this Honourable Court. The explanation given in the circumstances is unreasonable. (c) Whether or not there are prospects of success on review should the application be granted? The applicant submitted that he has good prospects of success on review. His reasoning was that the first respondent failed to read and interpret the contract between the second respondent and himself which stated that the applicant would receive inputs from the second respondent which he would use to realize a yield and the second respondent would accordingly receive soya beans representing the value of the loan. He further said that the first respondent failed to appreciate the breach of contract by the second respondent. This coupled by the importance of the case makes his prospects of success very high. The second respondent submitted that there are no prospects of success on review. Firstly, the second respondent argued that the order has been executed upon and that the applicant’s assets have since been sold making this application frivolous and vexatious. Secondly, it was submitted that in terms of the Memorandum of Agreement between the applicant and the second respondent the first respondent’s written decision would be final and binding on them and incapable of appeal and that it will forthwith be carried into effect. For that reason the applicant is prevented from seeking to resile from this contractual provision. See Zimbabwe Educational Scientific Social and Cultural Workers Union v Welfare Educational Institutions Employers Association SC 11/2013 where the Supreme Court held that: “It is trite that where parties make submissions to arbitration on the terms that they choose their own arbitrator(s), formulate their own terms of reference to bind the arbitrator and agree that the award will be final and binding on them, the court of law will proceed on the basis that the HH 94-17 HC 1603/16 Ref HC 3360/15 parties have chosen their own procedure and that there should not be any interference with the result. See Zesa v Maposa 1999 (2) ZLR 452 (SC). Lastly the second respondent argued that the arbitral award may only be set aside in terms of Article 34 of the Model law prescribed in the 2nd Schedule of the Arbitration Act [Chapter 7.15] which provides that recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with para(s) (2) and (3) of this article. See Catering Employers Association of Zimbabwe v Zimbabwe Hotel and Catering Workers Union & Anor 2001 (2) ZLR 388 (S) and Mtetwa and Anor v Mupamhadzi 2007 (1) ZLR 253 (S). In this case the application for review should have been made within 8 weeks from the date of the award. The applicant however, only acted after a period of over one year and was brought after his 3 prior attempts to impugn the registration of the award which he did not oppose were dismissed by this court. The explanation given for the delay is unreasonable. The application for condonation in a matter for which review should have been brought within 8 weeks is incapable of condonation. The delay is inordinate. On the merits the applicant’s case is very weak. In my view the applicant’s application for condonation is with respect, completely devoid of merit and is intended solely to delay finalisation of the matter. The application should accordingly be dismissed with costs on a legal practitioner and client scale due to his abuse of process. In the result it is ordered that: (1) The application is dismissed. (2) Applicant to pay costs on a legal practitioner and client scale. Kawonde Legal Services, applicant’s legal practitioners Hussein Ranchhod & Co, 2nd respondent’s legal practitioners.