Wells & 66Ors v Dunstan Transport (Pvt) Ltd. (HC 3833 of 2015) [2015] ZWHHC 787 (14 October 2015)

1 HH 787-15 HC 3833/15 YOBE WELLS AND 66 OTHERS versus DUNSTAN TRANSPORT (PVT) LTD HIGH COURT OF ZIMBABWE BHUNU J HARARE, 21 July 2015 and 27 July 2015 and 14 October 2015 Opposed Matter Mr E Ndoro, for the applicant Ms NS Ndlovu, for the respondents BHUNU J: This is an application for the registration of an arbitral award in terms of s 98 (14) of the Labour Act [Chapter 28:01]. All the 67 applicants were employees of the respondent. On 30th of April 2014 they obtained a globular composite arbitral award granted by D. Muchemwa (Arbitrator NECTOI) in the following terms: “AWARD It is ordered that the above claimants should be paid their outstanding wages and allowances amounting to $133 121, 34 within 6 months from April 2014 to September 2014. Please note that recognition and enforcement of this award may be made to the magistrates/ High Court in terms of Model Law 35 of the Arbitration act. I so award. Signed D Muchemwa Arbitrator (NECTOI)”. On 27 April 2015 they lodged a chamber application for the registration of the arbitral award in terms of s 98 (13) as read with (14) of the Labour Act [Chapter: 28:14] which provide that: HH 787-15 HC 3833/15 “(13) At the conclusion of the arbitration the arbitrator shall submit sufficient certified copies of his arbitral award to each of the parties affected by it. (14) Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of subsection (13) to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any magistrates court, the High Court.” The application was opposed purely on technical grounds. The issues which image for determination are in the main: 1. Whether or not it is fatal for a legal practitioner to depose to an affidavit on behalf of his client? 2. Whether or not applicants have adopted a wrong procedure by use of a chamber application? 3. Whether or not partial compliance affects registration of same? 4. Whether or not this application complies with the arbitration Act? I now proceed to deal with the issues raised seriatim. Whether or not it is fatal for a legal practitioner to depose to an affidavit on behalf of its client? A survey of case authorities shows that in the ordinary run of things it is undesirable for a legal practitioner in an application to depose to an affidavit on behalf of his client. This is however a general rule of general application not cast in stone but subject to exceptions. The mischief behind the rule is that legal practitioners ought to maintain their professional neutrality by not giving evidence on behalf of their clients. In most cases legal practitioners apart from what they gather from their clients and witnesses have no independent knowledge of the facts and circumstances of the case. This case is however different and exceptional in that the legal practitioner was simply deposing to facts over which she has direct knowledge of and within her purview and specialised knowledge as a legal practitioner. She was simply articulating in a brief and concise affidavit that she obtained an award on behalf her clients in terms of s 98 (5) of the Act and that in terms of s 98 (14) she was now applying for registration of the award on behalf of her clients. The relevant parts of the affidavit reads: “3. From December 2012 to September 2013 Respondent was not paying Applicants their wages and allowances. 4. The matter was referred for arbitration in terms of Section 98 (5) of the Labour Act. HH 787-15 HC 3833/15 5. The Arbitrator ruled in favour of the Applicants and all applicants were awarded their arrear salaries and allowances accordingly. A copy of the certified award is attached and marked Annexure “A”. The Respondent has paid out some amounts to the Applicants but has not fully 6. complied with the award in its totality. 7. The application is made in terms of Section 98(5) of the labour act Chapter 28:01 to have the arbitral award registered as an order of this court for purposes of enforcement. 8. In the premises the applicant(s) pray(s) for an order in terms of the draft annexed hereto.” In my view the applicants’ legal practitioner was the best person suited to articulate matters relating to the procedural aspects of the case and enforcement of the arbitral award. All the facts stated can be ascertained from the record of proceedings. I therefore come to the conclusion that there were exceptional circumstances warranting the applicants’ legal practitioner to depose a founding affidavit on behalf of her clients in this case. Whether or not applicants have adopted a wrong procedure by use of a chamber application? The respondent also objected to the applicants’ application on the basis that they ought to have proceeded in terms of a court application and not a chamber application. Section 98 (14) of the Act which provides for the registration of an arbitrary award does not however prescribe the mode of application. The section makes no reference to a court application it simply states that: “Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of subsection (13) to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any magistrates court, the High Court.” Rule 226 (2) of the High Court Rules however, gives a guideline as to when it is permissible or not permissible to proceed by way of a chamber application. It provides that: “226. Nature of applications (1) Subject to this rule, all applications made for whatever purpose in terms of these rules or any other law, other than applications made orally during the course of a hearing, shall be made— (a) as a court application, that is to say, in writing to the court on notice to all interested parties ; or HH 787-15 HC 3833/15 (b) as a chamber application, that is to say, in writing to a judge. (2) An application shall not be made as a chamber application unless— (a) the matter is urgent and cannot wait to be resolved through a court application; or (b) these rules or any other enactment so provide; or (c) the relief sought is procedural or for a provisional order where no interim relief is sought only; or [Paragraph amended by s.i. 101 of 1994] (d) the relief sought is for a default judgment or a final order where— (i) the defendant or respondent, as the case may be, has previously had due notice that the order will be sought, and is in default; or (ii) there is no other interested party to the application; or (iii) every interested party is a party to the application; or (e) there are special circumstances which are set out in the application justifying the application.” Rule 226 (2) (c) makes it clear that where the relief sought is merely procedural it is permissible for the applicant to proceed by way of a chamber application. It is plain in this case that the order sought from this court is merely procedural to facilitate the enforcement of a lawful arbitral award. That being the case, the applicants were within their rights to proceed by way of a chamber application as they did. Whether or not partial compliance affects registration of same? Section 98 (13) obliges the arbitrator to furnish each party with a certified copy of the arbitral award. Subsection (14) thereafter enjoins the party who wishes to enforce the award to register a certified copy of the arbitral award furnished to him in terms of subsection (13) with the court. What this means is that the applicant can only register a certified copy of the arbitral award furnished to him by the arbitrator in terms of subsection (13) and nothing else. It is not permissible for the applicant to register any order other than that obtained from the arbitrator. He cannot adulterate the arbitral award by factoring in, any amendments to the award. He cannot add or subtract anything from the order as given by the arbitrator. The respondent’s proposition suggesting that the applicants should make provision for payments already made is untenable and illogical as it has the effect of opening floodgates for HH 787-15 HC 3833/15 the applicants to increase their claim should they feel that they left anything out in their claim before the arbitrator or on account of new facts arising. This is simply not permissible at law. Whether or not the respondent has made partial payment is a matter between it and the sheriff or his deputy. Partial compliance with the award does not therefore affect the registration of the arbitral award furnished by the arbitrator in terms of s 98 (13). Neither the applicants nor the court may tamper with the order as given by the arbitrator. It must be registered as it is without any alteration. Whether or not this application complies with the arbitration Act? The respondent sought to have registration of the arbitral award declined by this court on the basis of non-compliance with article 35 (2) of the UNICTRAL MODEL LAW contained in the 1st schedule to the Arbitration Act [Chapter 7:15]. A lot of energy and argument was expended on this issue. Had both counsel taken the trouble to look at s 5 of the Act they could have saved their breath and time arguing over an irrelevant issue. The section reads: “5 Application of Act to arbitration under other enactments (1) Subject to subsection (2), where an enactment requires any matter to be determined by an arbitrator or by arbitration in accordance with any law relating to arbitration, such requirement shall be deemed to be an arbitration agreement for the purposes of this Act. (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 section renders the Arbitration Act subservient to the Labour Act which provides for an elaborate procedure for the registration of an arbitral award. The section therefore renders Article 35 (2) irrelevant. This is for the simple but good reason that all what the applicant is required to do is to comply with the elaborate procedure laid down in the Labour Act. Any other provision in the Arbitration Act inconsistent with the Labour Act is not law as it is rendered nugatory and a legal nullity by operation of law. There being no allegation that there was failure to comply with laid down procedures in the Labour Act I come to the conclusion that the application of Article 35 (2) of the UNICTRAL MODEL LAW contained in the 1st schedule to the Arbitration Act [Chapter 7:15] is an irrelevant consideration. HH 787-15 HC 3833/15 Conclusion In conclusion I am constrained to remark that this is a classic case where a litigant is determined to throw spanners into the works and subvert the due administration of justice by fastening onto technicalities. This is the sort of case McNally JA had in mind when he remarked in Dalney Mine v Musa Banda SC 39/99 that: “As a general rule it seems to me undesirable that labour relations matters should be decided on the basis of procedural Irregularities.” It is patently clear that although the respondent lost the case more than a year ago it has managed to evade paying the applicants their dues for more than a year now in circumstances where the applicants have proved their claim against the respondent on claims dating back to 2012. Justice, fairness and equity demands that a worker who has expended his labour and proved his claim in a court of law or tribunal be paid his dues without any further ado because his livelihood and those dependent on him depends on it. It is for this reason that I find the respondent’s attitude to be repugnant, inconsiderate and wholly inconsistent with all notions of justice and fairness. For that reason alone had the applicants asked for costs at the higher scale I certainly would have obliged. In the final analysis the application can only succeed. It is accordingly ordered: 1. That the arbitral award issued by Honourable D Muchemwa in favour of the applicants on 30th of April 2014 be and is hereby registered as an order of this court 2. The Respondent shall pay costs of this application. Thondhlanga and Associates, applicants’ legal practitioners Wintertons, respondent’s legal practitioners