ZIMBABWE POSTS (PVT) LTD v COMMUNICATION & ALLIED SERVICES UNION

SUPREME COURT, HARARE

[Civil Appeal SC 20-16]

July 1, 2013

MALABA DCJ, GOWORA AND HLATSHWAYO JJA

Arbitration – Award – Setting aside of – Grounds – Award in conflict with public policy – What must be shown – Effect of award in wage negotiation case would be to drive employer into insolvency – Such an award in conflict with public policy.

Appellant brought an application in the High Court challenging an arbitration award issued in terms of the Labour Act [Chapter 28:01]. There was confusing reference to the application being for review as well as one brought in terms of the Model Law as contained in the First Schedule to the Arbitration Act [Chapter 7:15]. The founding affidavit was however, clear that the challenge to the arbitral award was on the basis that it was contrary to public policy and the reasons for that contention were given. The High Court dismissed the application holding that it was one for review and did not comply with the High Court Rules, 1971 (RGN 1047 of 1971).

Held, that none of those grounds relied upon by appellant constitute, grounds as contemplated by the High Court Act [Chapter 7:06], upon which the court could set aside any decision on the basis of its powers of review. The clear ground relied upon by appellant was that the award was contrary to public policy. The application was not for review.

Held, further, that given the apparent confusion that had been created by the appellant in settling its papers, the application had to be disposed of on the basis of the founding affidavit. The facts as contained in the founding affidavit cried out for the setting aside of the award on the basis that it was contrary to the public policy of Zimbabwe. Rather than an implication of the relief being sought, there was a statement identifying the basis upon which the award was being challenged. There was no need for further amplification. The fact that the applicant thereto described the application as one for a review to the High Court did not change the substance of what it was.

Case cited:

Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S), dicta applied

Legislation considered:

Arbitration Act [Chapter 7:15], First Schedule Art 34 (2)(b)(ii)

High Court Act [Chapter 7:06], s 27

Labour Act [Chapter 28:01]

High Court Rules, 1971 (RGN 1047 of 1971), O 33 r 256

GOWORA JA:

As a result of runaway inflation and the sliding value of the local currency, in February 2009 the Government of Zimbabwe adopted the multi-currency regime as a mode of conducting financial transactions. Salaries that had been pegged on the local currency lost buying power in the hands of the recipients. It became necessary to renegotiate salaries and benefits across the board with the unions representing the appellant’s employees. In casu, the parties were unable to agree on a minimum wage and allowances. It was resolved to submit the dispute to voluntary arbitration through the Commercial Arbitration Centre.

On 13 January 2010, the Commercial Arbitration Centre in Harare appointed MP Mahlangu (“the arbitrator”) to arbitrate the dispute between the parties. After hearing the parties, on 23 February 2010 the arbitrator issued an award in the following terms:

“For the period between 1 May and 31 August 2009, the salary of the lowest earning employee of the respondent company should receive an adjustment of US$ 25 in respect of each month, and for the period between 1 September and 31 December 2009 a further US$ 25 adjustment should be effected. The effect of this on the lowest earning employee of the respondent is that in total the back-pay payable to him or her will be US$ 300. In doing this I realise that further financial strain will be added to the respondent but believe that this is necessary in fairness to the claimant.” (my emphasis)

The appellant was aggrieved by the award and on 17 May 2010 it filed a court application in the High Court. Attached to the court application under separate cover was what was termed an application for review. One of the grounds upon which the review was sought was “that the arbitral award was in conflict with the public policy of Zimbabwe”.

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