NATIONAL FOODS LTD v NGWARU & ANOR*

HIGH COURT, HARARE

[Opposed Application HH 213-16]

March 8 and 23, 2016

MUREMBA J

Employment  –  Arbitral award  – Default judgment  –  Whether arbitrator can grant.

Employment  –  Registered arbitral award  –  Rescission of  –  Sections 98 (9) and 92C (1)(a) of the Labour Act [Chapter 28:01]  –  Whether arbitrator can rescind.

An arbitrator rescinded an award granted in default. In an application for the registration of the award rescinding the original award the respondents argued that an arbitrator has no jurisdiction to rescind an award. They argued further that an arbitrator cannot rescind an award which has already been registered with the High Court.

Held, that because an arbitrator has the same powers as the Labour Court in terms of s 98 (9) of the Labour Act [Chapter 28:01], an arbitrator can rescind his own award in the same manner that the Labour Court can, in terms of s 92C (1)(a) of the Labour Act, rescind or vary its decisions or judgments.

Held, further, that an arbitrator can rescind his award even after it has been registered.

Cases cited:

Dhlodhlo v Deputy Sheriff for Marondera & Ors 2011 (1) ZLR 416 (H), applied

Industrial Equity Ltd v Walker 1996 (1) ZLR 269 (H), referred to

MacFoy v United Africa Co Ltd [1962] AC 152; [1961] 3 All ER 1169 (PC), referred to

Mandiringa & Ors v National Social Security Authority 2005 (2) ZLR 329 (S), referred to

Stumbles & Rowe v Mattinson; Mattinson v Stephens & Ors 1989 (1) ZLR 172 (H), referred to

Tapera & Ors v Field Spark Investments (Pvt) Ltd HH 102-13 (unreported), referred to

Legislation considered:

Arbitration Act [Chapter 7:15]

Labour Act [Chapter 28:01], ss 92B (4), (5), 92C, 92C (1)(a), 98 (9), (14)

High Court Rules, 1971 (RGN 1047 of 1971), O 9 r 63

AK Maguchu, for the appellant

M Hungwe, for the respondents

MUREMBA J:

On 3 February 2011, the respondents obtained an arbitral award in the sum of US$ 33 104.23 against the applicant. On 25 March 2011, they came and registered the arbitral award as an order of this Court under case number HC 1962/11 for purposes of enforcement. On the same date of 25 March 2011 the respondents had a writ of execution issued by the Registrar of this Court.

On 28 April 2011, the same arbitrator who issued the arbitral award in default rescinded it upon application for rescission by the applicant and upon hearing the parties. In rescinding the arbitral award he said, among other things:

“The default judgment is hereby set aside to allow another arbitrator to look into the merits of the case. It is undesirable that labour disputes be resolved on the basis of technicalities. …Conciliation and reference to arbitration to be done within 14 days from the date of this order.”

Meanwhile the respondents had instructed the Sheriff to attach the applicant’s property in execution. Consequently the Deputy Sheriff had attached the applicant’s property and served the applicant with a notice of removal of the attached property on 27 April 2011. The property was going to be removed on 3 May 2011. This prompted the applicant to make an urgent chamber application to this Court for stay of execution under case number HC 4410/11. In the interim relief, the applicant wanted the respondents who included the Deputy Sheriff stopped from removing the attached property pending the return date. In the final order the respondents wanted the order of the arbitrator of 25 April 2011 rescinding the arbitral award of 3 February 2011, registered as an order of this Court. It also wanted the writ of execution issued by the Registrar on 25 March 2011 under case number HC 1962/11 to be set aside.

Unfortunately for the applicant, the application was dismissed by Mtshiya J on 17 May 2011 for lack of urgency. The applicant was ordered to proceed by way of an ordinary court application. On 19 May 2011, the applicant appealed to the Supreme Court against the judgment of Mtshiya J. Whilst the appeal was pending, the Supreme Court on 20 June 2011 granted an interdict interdicting the Deputy Sheriff from removing the attached applicant’s property in pursuit of the writ of execution issued by the Registrar of this Court on 25 March 2011. However, for three and a half years the applicant did not prosecute its appeal in the Supreme Court and on 30 January 2016, the Supreme Court Registrar dismissed the appeal for want of prosecution. The Supreme Court Registrar wrote to the parties notifying them of the lapse of the appeal.

As a result of the dismissal of the applicant’s appeal, the respondents on 19 February 2015 had another writ of execution issued by the Registrar of this Court and instructed the Sheriff to attach and remove the property of the applicant. Again the applicant rushed here with an urgent chamber application for stay of execution arguing among other things that there was no arbitral award entitling the respondents to claim any money against it as the arbitral award of 3 February 2011 had been rescinded by the arbitrator. The applicant further averred that in terms of the Arbitration Act [Chapter 7:15], one can resist the enforcement of an arbitral award that has been set aside. However, this application was struck off the roll for lack of urgency by Makoni J. As usual the applicant appealed against the decision of Makoni J to the Supreme Court.

When the present application was made, the appeal was still pending in the Supreme Court. When the urgent application for stay of execution was struck off the roll for lack of urgency by Makoni J, the respondents proceeded with execution. In order to save its property which had been attached, the applicant paid cash to the respondents’ counsel, Mr Hungwe, on 22 April 2015.

After all this had happened, the applicant made the present application seeking the following relief:

(a) The registration of the order of 28 April 2011 by the arbitrator rescinding the arbitral award of 3 February 2011.

(b) The setting aside of the High Court order in case number HC 1962/11 registering the arbitral award of 3 February 2011.

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