Mukamba & Anor v Arundel Village Spar (HC 2579 of 2014) [2015] ZWHHC 539 (16 June 2015)

1 HH 539-15 HC 2579/14 TATENDA MUKAMBA and ODWELL STANLEY versus UNIBAX INVESTMENTS T/A ARUNDEL VILLAGE SPAR HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 4 March 2015 and 17 June 2015 Opposed Matter R. Mahuni, for the applicants G. Madzoka, for the respondent MATANDA-MOYO J: On 4 February 2014 I issued the following order in favour of the applicants: (1) That the arbitral award of the arbitration tribunal granted by Honourable C. T. Kadenga on 19 February 2014 in favour of the applicants be and is hereby registered as an order of this court. (2) That Respondent be and is hereby ordered to pay the sum of $20 790-00 (twenty thousand seven hundred and ninety dollars) to each applicant in terms of the operative part of the award. (3) That Respondent be and is hereby ordered to pay the costs of suit. I have been requested to give reasons and these are they; This is an application for registration of an arbitral award in terms of s 98(14) of the Labour Court Act [Chapter 28:01]. The applicants obtained an arbitral award in their favour on 19 February 2014 in the following: (a) That the respondent pay $15 785-00 to each applicant as back pay. (b) That respondent pay $155-00 to each applicant as cash in lieu of leave and (c) That the respondent pay $3 850-00 to each applicant as damages in lieu of reinstatement. The respondent opposed the registration of the award on the basis that the award was HH 539-15 HC 2579/14 not authenticated as original. The respondent also argued that no arbitration agreement nor referral to arbitration documents were attached to the application in compliance with the Arbitration Act [Chapter 7:15]. The respondent challenged the application in the face of an appeal pending before the Labour Court. The respondent submitted that it noted an appeal before the Labour Court and such appeal has the effect of suspending the arbitral award. Once the arbitral award is suspended it follows that it could not be registered. It is respondent’s case that the arbitral award sought to be registered is patently wrong and contrary to public policy in that it was issued without the respondent having been given an opportunity to make representations. The applicants challenged the authority of H. Maticha in deposing to an affidavit on behalf of the respondent without authorisation. The respondent is a legal persona and any person purporting to act on its behalf must do so on the strength of resolution from the company directors. Let me deal with the issue whether H. Maticha’s affidavit is properly before the court. It is trite that a person purporting to represent a company must establish his authority to do so-see Thelma Court Flats (Pvt) Ltd v McSwigin 1954(3) SA 457(C), John Strong (Pvt) Ltd and Anor v Wacheauka (1) 2010 (1) ZLR 151 (H). In the matter in casu it is common cause that H Maticha is the Human Resources Manager of the respondent. In his affidavit he alluded to the fact that he is duly authorised to depose to the affidavit. He did not attach the resolution authorising him to so act. It is trite that failure to attach a Board Resolution authorising a deponent of an affidavit to so act is not fatal to the proceedings. As long there is evidence that it is the company litigating the courts should not dismiss an application. In the present case the applicants have not shown prima facie that H. Maticha was litigating on his own behalf. The resolution by the company need not be attached in each and every case. See Mall (Cape) (Pvt) Ltd v Meriwo Ko-Operaise Bpk 1957(2) SA 347 (C), Poolquip Industries v Griffin and Anor 1978 (4) SA 353. The respondent opposed the granting of the relief sought on the basis that it appealed against the arbitral award that the applicant sought to register. The respondent did not attach any proof of the appeal. The applicants denied that such an appeal has been noted. Even agreeing with the respondent that such appeal was noted, the position of the law is clear. An appeal against an arbitral award to the Labour Court does not suspend the award appealed against. The appellant still has to seek the suspension of the award pending the appeal. There is no evidence before me that such a relief was obtained prior to the hearing of this matter. HH 539-15 HC 2579/14 The applicants referred me to the case of Joseph Tapera and 17 Ors v Field Spark Investments (Pvt) Ltd HH 102/13 where Justice Mathonsi quoted with approval his earlier observation in Greenland v Zimbabwe Community Health Intervention Research Project (Zichre) HH 93/13 at p 3, that: “A party which finds itself faced with an arbitral award it is challenging should take advantage of the provisions of section 92E(3) of the Labour Act [Chapter 28:01] which empowers the Labour Court to make an interim determination for the stay or suspension of an arbitral award. Where the award has not been stayed or suspended in terms of s 92E(3) and remains extant, this court will, as a matter of principle, register the award for enforcement unless there are grounds for not doing so as provided for in Article 36 of the model law contained in the Arbitration Act [Chapter 2:15]”. I am of view that the respondent has failed to show that it noted an appeal to the Labour Court. Even if such appeal was noted the respondent has not obtained an order staying or suspending the execution of such award. The mere noting of an appeal to the Labour Court does not have the effect of suspending the arbitral award. The respondent also challenged the award as not being authentic. I am not persuaded by that argument as the arbitral award produced before this court is certified. The respondent also opposed the registration of the award in that the award is patently wrong and contrary to public policy. The respondent submitted that it was not given an opportunity to make representations by the Arbitrator. The doctrine of public policy was dealt with by Gubbay CJ (as he then was) in the case of ZESA v Maposa 1999 (2) ZLR 452 at 453 C-E; “The approach to be adopted is to construe the public policy defence as being applicable to either a foreign or domestic award, restrictively in order to preserve and recognise the basic objective of finality in all arbitration, and to hold such defence applicable only if some fundamental principle of law or morality or justice is violated. An award will not be contrary to public policy merely because the reasoning or conclusion of the arbitrator are wrong in fact or in law where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitute a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it. The same consequences apply where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned”. It is correct in terms of Article 34(2) of the United Nations Commission of International Trade Law (UNICITRAL) Model Law Schedule to Arbitration Act [Chapter 7:15], that this court can set aside an award if it finds that the award is in conflict with public policy of Zimbabwe. Similarly this court can refuse to register an award which is contrary to public policy. HH 539-15 HC 2579/14 A look at the proceedings before the Arbitrator would show that the respondent was represented on both occasions. It is not correct that the respondent was not given an opportunity to present its case. The award speaks for itself. It is my finding that that submission by the respondent is incorrect. It is also my view that the respondent has failed to show that the award is patently wrong. In the result I am satisfied that the applicant has met all the requirements for registration and the award is hereby registered as an order of this court as per my order of 4 February 2014. Mahuni and Mutatu, applicants’ legal practitioners Wintertons, respondent’s legal practitioners