CZI v Mbatha (HC 8795 of 2014) [2015] ZWHHC 125 (10 February 2015)

1 HH 125-15 HC 8795/14 CONFEDERATION OF ZIMBABWE INDUSTRIES versus RITA MARQUE MBATHA HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 29 January 2015 and 11 February 2015 Opposed Application T Mpofu, for the applicant The respondent in person MATHONSI J: This application is made in terms of Art 34 of the Uncitral Model Law which is a schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award issued by the arbitrator, K. Segula, on 29 July 2014 in terms of which she quantified the respondent’s damages in lieu of reinstatement as $87 640-00 made up of $1 400-00 May 2003 salary, $50 400-00 damages, $35 000-00 pension contributions and $840-00 cash in lieu of leave. The applicant employed the respondent as a Personal Assistant to its President and Chief Executive Officer from 2 September 2002. The relationship between the parties deteriorated when the respondent complained of sexual harassment by her immediate superior. The employment contract was terminated giving rise to a labour dispute which eventually went to arbitration. On 24 March 2014, the arbitrator issued an arbitral award the import of which was that the respondent had been unfairly dismissed. It is not clear from the papers why the matter took almost 10 years to finalise if indeed the respondent had been dismissed on 19 June 2003. Whatever the case, the applicant did not reinstate the respondent necessitating a second hearing before the arbitrator for purposes of quantification of damages due to the respondent. The quantification hearing occurred on 10 June 2014, but not before the applicant had, on 17 April 2014, noted an appeal against the initial award to the Labour Court. At the HH 125-15 HC 8795/14 conclusion of oral submissions the parties agreed to make written closing submissions. The applicant’s legal practitioner undertook to submit his on 16 June 2014 after which the respondent was to submit hers. The period was later extended by the arbitrator as a result of which the applicant’s submissions were to be filed by 25 June 2014 with the respondent obliging on 30 June 2014. The closing submissions were, eventually filed by both parties and the arbitrator, quantified the damages and delivered her award aforesaid on 29 July 2014. Problems started again. The applicant appealed against the second award to the Labour Court. The applicant also launched this application for the setting aside of the award. In its founding affidavit deposed to by its Finance Manager McShaman Kembo, the applicant stated that the award ought to be set aside on 2 grounds; namely that it deals with a dispute not contemplated by or not falling within the terms of the arbitration, or contains decisions on matters beyond the scope of the arbitration in that while the arbitrator was only seized with the issue of damages in lieu of reinstatement she had gone beyond her mandate by dealing with and awarding a sum of $35 000-00 in respect of pension contributions. The second ground is that the award is in conflict with the public policy of Zimbabwe in the sense that there was a breach of the rules of natural justice, in particular the audi alteram partem rule in that after the parties had made oral submissions the arbitrator allowed the respondent to produce further evidence which she went on to rely upon without according the applicant an opportunity to respond. The evidence was in the form of a lengthy document with the title “Application in support of quantification of damages.” The write up itself is 10 pages to which is attached another 8 paged document called “Zimbabwe All Industry Salary Survey.” The applicant complains that the documents contains evidence which was not made available at the oral hearing of 10 June 2014 and that as a result it did not respond to it. Significantly the arbitrator went on to rely on that unrebutted evidence in awarding the respondent damages in lieu of reinstatement and $35 000-00 as pension contributions. The respondent opposed the application and in her lengthy opposing papers she complained about the non-joinder of the arbitrator in the proceedings and disputed having introduced new evidence to the prejudice of the applicant. According to her all that is contained in her submissions dated 30 June 2014 which I have already cited, was available at the hearing on 10 June 2014. If the applicant had chosen not to address those issues in its closing written submissions, that should certainly not be her problem. To the respondent the HH 125-15 HC 8795/14 application is another ruse being employed by the applicant to deny her justice and to wear her down. At the hearing, the respondent however conceded that the issue of pension contributions was not only outside the scope of the arbitration, it had also not been brought up at the hearing on 10 June 2014. That notwithstanding, the arbitrator made an award for it. Let me deal first with the point raised in limine relating to the non-joinder of the arbitrator. Mr Mpofu conceded that the arbitrator should have been cited in the application as it is her award which is being impugned. While regretting the non-joinder he submitted that it is not fatal to the application especially as there is nothing in Art 34 of the Model Law, in terms of which the application was filed, requiring the citation of the arbitrator. Mr Mpofu also submitted that the application cannot be defeated by reason of the non-joinder of the arbitrator considering the provisions of r 87(1) of the High Court of Zimbabwe Rules, 1971 that:- “No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party……………” After we had exchanged a few “war stories” Mr Mpofu conceded that r 87 does not apply to application procedure, falling as it does under Order 13 dealing with actions. He however, robustly submitted that I must take a cue from that rule especially given that there is no rule whatsoever providing for joinder in applications. I agree. In fact the issues before me are capable of determination in the absence of the arbitrator. I will therefore, allow the matter to proceed without the citation of the arbitrator. Regarding the existence of an appeal to the Labour Court I agree with Mr Mpofu that an art 34 application is available to a litigant outside the appeal procedure and now that s 171 (1) (a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on labour matters which had been ousted by the provisions of s 89 (6) of the Labour Act [Chapter 28:01] there is nothing stopping me from exercising jurisdiction. Section 171 (1) (a) of the new Constitution provides:- “The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.” HH 125-15 HC 8795/14 To the extent that the Constitution overrides any Act of Parliament, there can scarcely be any doubt that s 171 (1) (a) overrides s 89 (6) of the Labour Act. What this means is that by clear constitutional provision this court has original jurisdiction over all matters including those of a labour nature where prior to the new constitutional order, the Labour Court enjoyed exclusivity. Considering that this matter has been set down and argued before me while the appeal is still pending in the Labour Court, it is expedient that I indulge the parties and determine the matter. In terms of Art 34(2) (a) (ii) of the Uncitral Model Law: “An arbitral award may be set aside by the High Court only if the party making the application furnishes proof that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not submitted, only that part which contains decisions on matters not submitted to arbitration may be set aside.” That article allows a severance of the offending part of the award where appropriate. It is therefore apparent that this court is empowered to set aside a portion of an award and uphold another portion in appropriate circumstances. The respondent has conceded that the issue of pension fell outside the terms of reference of the matter to arbitration, the arbitrator having only been requested to determine the respondent’s damages in lieu of reinstatement. Indeed, pension contributions cannot, by any measure, be regarded as falling within the ambit of damages, which VAN WINSEN J (as he then was) in Myers v Abramson 1952 (3) SA 121 (C) 127 C-E (quoted with approval by GUBBAY CJ in Gauntlet Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 (S) 586 F-G) defined as:- “The measure of damages accorded such employee (a wrongfully dismissed one) is, both in our law and in English law, the actual loss suffered by him represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.” In my view, the concession made by the respondent in respect of the award for pension contributions was proper. I would otherwise set aside only that part of the award but there is also merit in the submissions made by Mr Mpofu regarding the evidence which was allowed by the arbitrator post hearing of the matter. HH 125-15 HC 8795/14 As I have said, after the parties had agreed to make written closing submissions the respondent went on to submit further evidence including documentation attached to the written submissions. There was really nothing wrong with that considering that she was self- acting and a lay person. It was however, incumbent upon the arbitrator, having taken such evidence, to allow the applicant to respond. She did not. Instead, the arbitrator went on to rely upon such evidence in determining the matter. A whole array of correspondence was thrown in after the hearing including allegations of publication of the matter in the Daily News of 6 September 2002 and other issues relating to outstanding leave. I do not agree with the respondent that all this information was already available at the time of the hearing. If it was, there would have been no need to re-submit it via the written closing submissions. Article 34(5) of the Model Law seeks to clarify what would be regarded as being in conflict with the public policy. It provides:- “For the avoidance of doubt, and without limiting the generality of paragraph (2) (b) (ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if - (a) (b) the making of the award was induced or effected by fraud or corruption; or a breach of the rules of natural justice occurred in connection with the making of the award.” One of the basic tenets of the rules of natural justice is the audi alteram partem rule, which enjoins every adjudicating authority to hear the other side before determining the matter. There can be no doubt that the arbitrator fell foul of that rule. To that extent there is no alternative but to interfere with the award. I must however express my profound disappointment at the unacceptable delays that have occurred in this matter. This dispute started more than 10 years ago and is still simmering now. Surely there can be no excuse for delaying a labour dispute for such a lengthy period of time. The respondent, who I must add, presented very sound and reasoned arguments which on any day may turn a lot of legal practitioners green with envy, complains bitterly about the delay which she says has been orchestrated by the employer to frustrate her into abandoning her claim. She has drawn my attention to the sentiments made in Khoza v Sasol Ltd where court stated:- HH 125-15 HC 8795/14 “I am satisfied that Mr Hinds and his office were grossly remiss, and that the employee, who all of this time was wallowing in poverty and in unemployment, was more than justified in approaching this court for relief rather than wait for the rusty old train of Sasol that takes its own time in its delivery of justice. I have yet to encounter a worse case where there is a more callous disregard of the prejudice that an employee suffers when the wheels of justice are deliberately slowed down by a resort of obfuscation by those who flaunt their financial muscle in what appears to be an obscene game of cat and mouse in which the only loser can be the employee. In the unequal contest between a multibillion rand empire that the employer is, and an unemployed person, as was submitted by Mr Spoor, all you have to do is to wear down the resolve of your less endowed opponent, tire him out and hope that he will go away, his quest for justice abandoned. Delay the day when he can get justice, and you can then thereby deny him justice. I disagree. As long as the courts are open and as long as they purport to be the arbiters of fairness and justice, between the powerful and the relatively powerless, so long will they not allow the sort of conduct displayed by the employer in this case to go without consequences.” I associate myself fully with those remarks. This matter ought to be brought to finality without further delay. The respondent has done everything within her power to achieve that including the binding of the record, the application for set down and payment of security for service of the notices of set down as if she was the applicant. Throughout all that process the applicant remained unconcerned giving credence to the view that the applicant would like to perpetuate the matter endlessly. The basis of setting aside of the award cannot be blamed on the respondent. She therefore cannot be visited with costs. The arbitrator, who is to blame, was not cited. In the result IT IS ORDERED THAT:- 1. The arbitral award issued by the arbitrator K Segula dated 17 July 2014 is hereby set aside. 2. The quantification of damages in lieu of reinstatement is hereby remitted to the same arbitrator for a hearing de novo within fourteen days of this order. 3. Each party shall bear its own costs. Gill, Godlonton & Gerrans, Applicant’s Legal Practitioners