VICTORIA FALLS MUNICIPALITY v MUTARE NO & ORS*

HIGH COURT, BULAWAYO

[Opposed Application HB 160-16]

June 10 and 16, 2016

MATHONSI 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].

Employment  –  Arbitral award  – Whether arbitrator can rescind  –  Article 34 (2)(a)(ii) of First Schedule of the Arbitration Act [Chapter 7:15].

An arbitrator in an employment dispute granted the claimant relief in default of appearance. The applicant applied to the arbitrator for rescission of the award. The arbitrator did not deal with the application for rescission. The applicant approached the High Court to compel the arbitrator to consider the application for rescission of her award.

Held, an arbitrator must consider the merits of the dispute before him in making his award where there is default of appearance by one party in arbitration proceedings.

Held, further, that an arbitrator who has made an award is functus officio. The aggrieved party’s remedies lie in Art 34 (2)(a)(ii) of the Model Law, as contained in First Schedule to the Arbitration Act [Chapter 7:15], i.e. an application to the High Court for the setting aside of the award on the basis that the arbitrator did not consider the merits.

Case cited:

Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H), applied

Legislation considered:

Arbitration Act [Chapter 7:15], First Schedule Arts 25, 34 (2)(a)(ii)

Labour Act [Chapter 28:01], ss 89, 92C (1)(a), (b) and (c), 98 (9)

Urban Councils Act [Chapter 29:15]

Labour Court Rules, 2006 (SI 59 of 2006), rr 30, 33

K Ngwenya, for the applicant

First respondent in default

P Ngulube, for the second respondent

MATHONSI J:

Lawyering, especially for young and upcoming legal practitioners, is a very exciting, satisfying and indeed adrenalin pumping prospect as it helps the lawyer achieve the childhood dreams they had after many bitter years of travail at university. It can however be a nightmarish and disconcerting undertaking for those unable to quickly understand the problem faced by a client, know where to find the law under which the problem falls and to make the right choice of the course of action to take in pursuit of a remedy.

The applicant has gone knocking at the door of an arbitrator and finding no joy, it has been to the Labour Court where it was rebuffed and it has now come here with a humdinger of an application for “relief in the form of a declaratory order and a mandamus” against the arbitrator. Very high sounding and involved terminology but in aid of what really? A simple remedy has always been sitting and awaiting the applicant in Art 34 of the Model Law as contained in First Schedule to the Arbitration Act [Chapter 7:15] (“the Model Law”).

The applicant is a local government authority constituted in terms of the Urban Councils Act [Chapter 29:15]. It used to employ the 17 former employees (“Dickson Mukombwe and 16 others”). A labour dispute between the applicant and the employees could not be resolved through conciliation. It was referred to the first respondent, a labour arbitrator appointed in terms of the Labour Act [Chapter 28:01].

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