Held, that the High Court can only register an award in the form in which it was granted. It cannot, before registration, convert the award from its original form. The issue of deciding on the rate of conversion or the conversion itself is for the appropriate authority in terms of the award. Nor is the applicant permitted to convert the award on his or her or its own.

Case cited:

Nyakamha v Lobels Bread (Pvt) Ltd HC 3887/08, referred to

Legislation considered:

Reserve Bank of Zimbabwe (Demonetisation of Notes and Coins) Notice, 2015 (SI 70 of 2015)

Applicant in person

KT Madzetse, for the first respondent

No appearance, for the second respondent

CHITAKUNYE J:

On 7 November 2016, I dismissed the applicant's application for conversion of an arbitral award from Zimbabwe dollars to United States dollars. I gave my reasons for the decision at the time. The applicant has now asked for the written reasons despite having conceded that his application cannot succeed in its present form.

The background to this case makes sad reading. The applicant has been battling with his former employer, the respondent, since 2001 when allegations of misconduct were levelled against him. In Nyakamha v Lobels Bread (Pvt) Ltd HC 3887/08 MAKARAU JP (as she then was) had this to say on the applicant's plight:

"The applicant in this matter may well be justified in believing that the law is indeed an ass. He has been battling with his former employers since May 2001 when certain alleged acts of misconduct were levelled against him, leading to his suspension from employment. He has been to a number of labour officials, the Labour Court, before two independent arbitrators before he appeared before me on 11 February 2009. Due to certain procedural irregularities attendant upon his application before me, I had to dismiss his application on the turn."

A myriad of problems with the applicant's case were alluded to in that case. Since then the applicant has again been before the labour court where his application for another quantification of the award was dismissed on 8 August 2011. In dismissing the application, the Labour Court judge stated, inter alia, that:

"Chavura's award upon which this application is based was by consent and quantified by arbitrator Lucas on 21 January 2008 and that award still stands."

As that award was in Zimbabwe dollars efforts to have it converted to United States dollars by an arbitrator failed and so applicant approached this Court for the registration of the award in United States dollars. He had apparently converted the award to United States dollars arbitrarily. That application in HH 104-14 was duly dismissed by Mtshiya J.

Dissatisfied with the dismissal, the applicant appealed to the Supreme Court against the dismissal. That appeal was dismissed.

As a consequence of the above applicant filed this application.

In this application the applicant seeks an order that:

1. That this Court fixes the rate which can be used to convert the quantified award of 2 January 2008 by Mr H Lucas from Zimbabwean dollars to the United States dollars.

2. Alternatively, that this Court fixes the rate and convert the award into United States dollars.

3. In the event that the court grants the alternative relief specified in para 2 above, the parties shall submit their papers, the applicant within 15 days of this order with respondent filing its submissions five days later and then the applicant wrap up within a further five days.

4. Each party pays its own costs.

The first respondent opposed the application. In its opposition the first respondent raised some points in limine. The points in limine comprised the following:

1. That the matter is res judicata as a final and definitive judgment had already been made on the merits by a competent court in HC 423/13.

2. That the applicant has approached court with dirty hands as he is in defiance of a court order that ordered him to pay costs of suit on the higher scale. The costs were duly taxed on 18 February 2015 but up to now the applicant has not paid those costs.

3. That the relief sought is incompetent as applicant is seeking payment of US$ 923 949 but does not show the court where that figure is from.

4. Another point raised was that there were material disputes of fact which cannot be resolved on the papers filed of record.

After explaining to the applicant, the meaning and import of the points in limine raised, it appeared to me he understood what each point in limine meant.

I explained to the applicant the issues raised regarding the draft order or the relief he is seeking. He appeared to have understood and accepted the draft order was not elegantly drafted and the relief sought may not be easy to enforce. If the order were to be granted as per the draft it would not make any sense to him as well. It appeared that what the applicant had in mind was for this Court to do its own order where court will come up with its own rate of exchange that the parties will use in converting the Zimbabwe dollars award to a United States dollars award.

As regards to the rate to be used, the applicant admitted that there has been a dispute between the parties as to which rate to use. Indeed, that appears to be the central dispute between the parties ever since the dollarisation of our economy.

In the circumstances, the question of material dispute of fact is something that has been known to the applicant for quite some time.

The applicant has also been aware as per the judgment by Mtshiya J in
HH 104-14 that this Court cannot on its own convert the Zimbabwe dollars award into a United States dollars award. At page 5 of the judgment the Honourable Judge stated that:

"In addition to the foregoing, I want to point out that this Court can only register an award in the form it was granted. The applicant, in casu, has arbitrarily sought to convert the CH Lucas award from its original form where it is denominated in Zimbabwe dollars, to United States dollars. Indeed even if the award were registrable, this Court cannot, on its own, convert that award into United States dollars. That would be a deterrent award altogether."

It is pertinent to note that those remarks were made in an application to register this same award that applicant has brought before me seeking the conversion of the award from Zimbabwe dollars to the United States dollars.

Despite these pronouncements the applicant nevertheless persisted in asking this Court to do that which it has said it cannot do. The issue of deciding on the rate of conversion or the conversion itself is not for this Court to do but the appropriate authority in terms of the award. This Court is only required to register an award for purposes of enforcement and not to tamper with the award in such a way that it comes up with a different award from the one granted by the arbitrator.

The dispute on the rate of conversion to use is something that this Court cannot grant on the papers.

This Court has, on a number of occasions, said that where a party is aware of the material disputes of fact but nevertheless approaches court by way of court application, that party may be penalised by having their application dismissed.

It is my view that the disputes of fact which applicant acknowledged is that there is no way he would have expected this Court to resolve it on the papers. So, he deliberately brought a material dispute of fact on a court application and so the consequences of such conduct must visit him.

The material dispute could have been dealt with in action proceedings purely to determine dispute between the parties with each party calling evidence on the conversion rate to use in the circumstances as the Zimbabwe dollars was demonetised. This Court cannot sit as a court of social equity in the labour issue and decide on the conversion rate to use for the award.

This Court is guided by what the parties bring before it and cannot go out of its way in search of a conversion rate when the parties themselves have not brought evidence of what would be an appropriate rate in the circumstances.

The applicant also alluded to other factors he tried to use in previous court hearings, in the Supreme Court and in this Court as justification for having approached court in this way. I find those grounds not valid. He ought to have paid heed to the pronouncements by those courts and sought legal advice.

I also did not hear the applicant to seriously deny the fact that he has not paid costs that were awarded against him in previous court hearings. This is the other point in limine raised by the first respondent. This therefore means he is approaching court not with clean hands in terms of complying with court orders. The applicant being a self-actor one would want to be lenient with him as he pleaded with court to excuse him from paying costs on a higher scale. But in my view, where a party, even a self-actor persists in pushing a case without having a careful examination of the other party's grounds for opposing the issue, then he must be prepared to meet the costs on the higher scale. I fully accept that as a self-actor he has limited knowledge of the law but that has its limits. There is a limit to which court can bend backwards so as to accommodate self-actors in terms of the level of costs to award against them. This is an application that would not have been placed before this Court or even launched by the applicant had he taken heed of the various indications given in other cases in the same matter. An award of costs on the higher scale will be granted.

Accordingly, the application be and is hereby dismissed with costs on the attorney-client scale.

Mawere Sibanda, first respondent's legal practitioners