Mudzengerere & Ors v Civil Aviation Authority of Zimbabwe (HC 1550 of 2014) [2015] ZWHHC 231 (10 March 2015)

1 HH 231/15 HC 1550/14 TAPFUMANEYI MUDZENGERERE and MICHAEL MUVHU and WENGANAI CHIMHAU and FIDROS SAVANHU and RAYMOND CHINYERERE and OWEN SANGAISO and ALABI ISA and GEORGE MAPHOSA and JAMES MOYO and CHARLES MADZINGA and STEPHEN TAKAIDZA and RAYMOND CHIHWANDA and ISHMAEL DEBWE and PHILLIP T INAAPI NDUDZO and RAMECK SIMBI and SYDNEY STEWART and FARAYI MBINGWANA and COLLET MANGENA and LOVEMORE MAJEKWANA and TOBBI MUNA and NELSON NUNURAI MUZURU and LOVEMORE FAMBIRAYI and MATHIAS MATHIBA HH 231/15 HC 1550/14 and MEMORY SIYANATA and SORODZAI GWARADA and GLADYS TARIRO SIBINGANI and MUTOFORI MUTEVEDZI and ALBERT CHINOMONA and FARAI MUZHINGI and LOVEMORE CHIPATO and RICHARD FRANK PETERSON and DICKSON MUDZENGI and DESMOND MASHANU and LANGTON KADZIMWE and FREDDY NDARASIKA and KUNDISHORA TANDI and MARTIN MANYEPA and JONAH CHIWARA and WILSON MARUNGAMISE and EDSON D. CHIRIMA and FAVOUR CHIMANGA and ANDREW V. MAWOTSA and TATENDA KUDYARAWANZA and REGIS CHIMINYA and RADWICK DEERANYIKA and STANLEY MVEMVE HH 231/15 HC 1550/14 and MICHAEL CHONJA and JOHN PHILIP MABHERA and EDWIN DZUDZO and JONAH MUPANDASEKWA and FORGIVE MUTIRORI and NHLANHLA ZIKHALI and EVISON MUCHUCHU and BRIGHTON MABUSHA and CHARLES SEKURE and MANFRED MAHACHI and ISRAEL KAMWENJE and CLIFFORD KUMADIRO and MDUDUSI MAKHALISA and ENERST MPOFU and PHILLIP MBERI and ANTONY NDLOVU and EDMOND GOMO and MASWELL ZINYENGERE and TONDERAI MUSERUKA and CHAMUNORWA DUBE and TINASHE MUREFU and SHIPHERD MASHONGAYIKA and BLESSING NYAMUDEZA HH 231/15 HC 1550/14 and DAVID MAKORONI and GODFREY VHUREPI and BOAS JAKARA and ERISON MAKORORE and BHII SITHOLE and GODFREY PASIPAMIRE and ELIAS BAPIRO and WILLARD MUCHINGAMI and ENOCK C. MUKOSI and PAUL MASVIKENI and RONALD CHIMEDZA and WEBSTER MAHOHOMA and CUTHBERT SEKETE and ALFRED FUNGAI KAHLAMBA and LIBERTY KOZANAI and ALBERT MUZHANJE and WELLINGTON RUNGANGA and CASTEN MUSINGWINI and KRAIBO MUTEMATSAKA and PRICHARD CHAKAUYA and JOIN SIBANDA and SHADRECK MUSHA and ENOCK NYAMUTAKA HH 231/15 HC 1550/14 and ARTHER CHAKAZHAMBA and CLEVER MUNODA and TALENT MAFUVA and HAMANDAWANA MIDZI and JAMES MLALAZI and J. KANONHUWA RUPAPA and JOSHUA MASWELA and MICHEL CHIRUME and MUCHANETA MWAKUTUKUSA and ALFONCE ZVINOWANDA and TERRENCE KUMIRE and HLAHLA SIWAWA and TALKS MADZIMA and ELPHAS TAAKANYI and THOMAS MUTANDIRO and DANIEL CHINYANGA and JOSEPH MUFUNDISI and TAPIWA MUTESVA and CHARLES CHIRIMA and GILBERT JENARA and MOSES MADIYE and ABRAHAM MUREYANI and TERERAI MANDINYENYA HH 231/15 HC 1550/14 and GOTOZA ABSOLOM and BOB CHIRUHWENI and PHILLIP CHARAKUPA and REWARD MAGOBOLA and GEORGE MUSHAYAVANHU and RAVA ZHOU versus CIVIL AVIATION AUTHORITY OF ZIMBABWE HIGH COURT OF ZIMBABAWE MUREMBA J HARARE, 20 January 2015 & 11 March 2015 OPPOSED APPLICATION C Mucheche, for applicants O T Gasva, for respondent MUREMBA J: The applicants were granted an Arbitral Award by Arbitrator P Bvumbe in their favour on 28 August 2013. On 12 February 2014 the arbitral award was quantified. This is an application to have the arbitral award registered as an order of this court in terms of s 98 (14) of the Labour Act [Chapter 28:01] for the purposes of enforcing the order. The respondent raised a point in limine to the effect that the application should be dismissed for the reason that the founding affidavit was deposed to by Mr Caleb H. Mucheche who is a legal practitioner on behalf of the applicants, his clients. In the answering affidavit Mr Mucheche argued that there was nothing irregular about a legal practitioner deposing to an affidavit in a matter where he is HH 231/15 HC 1550/14 conversant with the facts. He said in the present case he is the one who was representing the applicants during arbitration proceedings leading to the present application, so he is conversant with the facts. He went on to cite the case of Zimbabwe Banking Corporation Limited v Trust Finance limited and Another HH130/06 where the court took into account the history of the case and accepted the applicant’s affidavit which had been deposed to by the applicant’s legal practitioner. The same legal practitioner had acted for the applicant in the proceedings which subsequently led to the taxation case which sought to be reviewed by the court. The court said that the deponent was duly authorised by the applicant as he averred in the affidavit. Mr Mucheche also referred to the case of Air Zimbabwe corporation & Others v The Zimbabwe Revenue Authority HH-96-03. In that case the court held that the deponent to the applicant’s affidavit had authority to act for and on behalf of the applicants after taking into account the prior dealings between the parties. Mr Mucheche further argued that it is not always a requirement that there has to be proof of authority to represent the principal. It was submitted that in any case this court is only faced with the application for the registration of the Arbitral Award and nothing else. It does not have to enquire into the merits of the case. In support of the point in limine Mr Gasva, for the respondent made reference to the case of Mandaza v Mzilikazi Investments (PVT) Ltd 2007 (1) ZLR (H) wherein Ndou J said, “Generally, a Legal Practitioner should not depose to a founding affidavit on behalf of a client. However, he may do so if the facts of the case are within his personal knowledge. Even in such exceptional case the practice should be exercised sparingly.” Mr Gasva argued that in the present case there is no explanation why the applicants could not depose to the affidavit themselves. Taking into account the history of the case that it is Mr Mucheche who was representing the applicants during the arbitration proceedings leading to the present application, I would not say that it is doubtful that he was authorised by the applicants to represent them. What he deposed to is within his personal knowledge. I find the cases that were cited by Mr Mucheche relevant. Even the case that was cited by the respondent’s counsel is also relevant and it supports the applicant’s argument that in a case where a legal practitioner has personal knowledge he can depose to an affidavit. Even r 227 (4) (a) of the High Court Rules, 1971 states that an affidavit that accompanies a written application shall be made by the applicant or respondent, as the case maybe, or by a person who can swear to the facts or averments set out therein. HH 231/15 HC 1550/14 In Bubye Minerals (PVT) Ltd & Another v Rani International Ltd 2007 (1) 22 (S) Cheda JA (as he then was) stated that a founding affidavit must be based on personal knowledge and not on hearsay. That being the case in the present matter that Mr Mucheche’s affidavit is not based on hearsay I am not persuaded by the respondent’s argument. In the case of TFS Management Company (PVT) Ltd v Graspeak Investments (PVT) Ltd & Another 2005 (1) 333 (H) it was stated that an affidavit accompanying an application may be made by a legal practitioner who can depose to facts within his personal knowledge. In that case that is what happened and the court went on to say that the legal practitioner did not require special authority to depose to the affidavit. His authority to depose to the affidavit in the application for further particulars could not be disputed because the respondents had not impugned his authority to act for the applicant in the main action. In the present case if Mr Mucheche was representing the applicant in the arbitration proceedings the respondent has no basis to challenge his authority in deposing to the founding affidavit. For the above reasons I will dismiss the point in limine. THE MERITS Mr Mucheche argued that there being nothing suspending the arbitral award in terms of s 92E of the Labour Act [Chapter 28:01] there is no impediment to its registration. In opposing the application the respondent stated that it is opposed to the registration of the Arbitral Award for the reason that it has since appealed against the granting of the award in the Labour Court and that appeal is still pending. Further to that there was also an application for an interim relief in terms of s 92E (2) of the Labour Act [Chapter 28:01] which was made to the Labour Court, which application again was still pending. The interim relief being sought was the stay of the award pending the determination of the appeal by the Labour Court. The respondent argued that it was therefore premature for the applicants to try to enforce the award. On the date of the hearing the applicant’s counsel brought to the attention of the court that the interim relief that the respondent was seeking in the Labour Court for the stay of the award pending the determination of the appeal had subsequently been dismissed on 23 May HH 231/15 HC 1550/14 2014, after the parties had already filed their heads of argument. This court was furnished with a copy of the court order under case number LC/H/ORD/23/2014. In terms of s 92E (2) of the Labour Act an appeal does not have the effect of suspending the determination or decision appealed against. S 92E (3) empowers the Labour Court to stay or suspend an award pending determination of an appeal. I am in total agreement with the words of Patel J (as he then was) in the case of Gaylord Baudi v Kenmark Builders (PVT) Ltd HH 4-12 which the applicant’s counsel referred me to. He said, “As I have already stated, section 92E (2) of the Labour Act expressly provides that an appeal against an award in terms of section 98(10) shall not operate to suspend the award. Section 92E (3) enables the Labour Court to suspend or stay an award upon application by the aggrieved party. Where no such application is made or where it is dismissed, subsections (14) and (15) of section 98 entitle the successful party to apply for the registration and enforcement of the award. Parliament has obviously applied its mind to the delays inherent in the appeal process and considered the policy implications of the general common law rule which automatically suspends a decision that is appealed against. It has consciously and deliberately decided that arbitral awards in the realm of labour relations should be enforced, despite any pending appeal and notwithstanding any inconvenience that such enforcement might entail. In this context, it would be very difficult to hold that what is specifically provided for and allowed statute should be regarded as being contrary to public policy. Any such approach would simply operate to frustrate and defeat the clear intention of Parliament.” by See also the case of Benson Samudzimu v Dairiboard Holidings Ltd HH 204/10. In casu the arbitral award which seeks to be registered has not been set aside on review or on appeal nor has it been suspended. There is therefore no basis for this court to decline to register the arbitral award. Costs Mr Mucheche argued for costs on the higher scale of legal practitioner and client on the basis that the respondent had not raised any serious objection to the application. I am not inclined to award such costs for the reason that when the respondent opposed this application it had already filed an appeal against the award in the Labour Court. It had also filed an application for interim relief in the Labour Court for the suspension of the award in terms of s 92E (3) of the Labour Act. Both applications were still pending. In opposing this application, the respondent was therefore banking on both or either of the applications succeeding. The application for the registration of the arbitral award is granted as per the draft order filed of record. The respondent shall pay costs of suit on the ordinary scale. HH 231/15 HC 1550/14 Matsikidze and Mucheche, applicant’s legal practitioners Chirimuuta and Associates, respondent’s legal practitioners