Redcliff Municipality v Phinias Mawedzere Redcliff Municipality v Nomvelo Buka

### Preamble
1
HB 83/20
1. REDCLIFF MUNICIPALITY
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REDCLIFF MUNICIPALITY

Versus

PHINIAS MAWEDZERE						HCA 76/18

REDCLIFF MUNICIPALITY

Versus

NOMVELO BUKA							HCA 77/18

IN THE HIGH COURT OF ZIMBABWE

MAKONESE & MABHIKWA JJ

BULAWAYO 7 OCTOBER 2019 & 21 MAY 2020

Civil Appeal

S. Zingano for the appellants

A. Chinamatira for the respondents

MABHIKWA J:	The above two matters where both heard on appeal on 7 October 2019.  The subject matter and facts giving rise to the appeals are the same.  The grounds and heads of argument are exactly the same with just the necessary changes and they are subject of the same arbitral award granted by the same arbitrator and registered by the same Magistrates’ Court sitting at Kwekwe. For that reason, I have combined them for purposes of this judgment.

On 20 January 2012 an Arbitrator, Honourable B. Dube granted an award in favour of the now respondents and 256 others who were all employees of the appellant.  The total award for the 258 employees was two million and three hundred and seventy six thousand, six hundred and sixty-nine dollars and eighty-nine cents (US$12 376 669,89).  Of that amount, the personal portion for the respondent in case number HCA 76/18 was seven thousand, six hundred and ten dollars and ten cents (US$7 610,10, whilst in case number HCA, the respondent’s personal portion was seven thousand five hundred and ninety-five dollars and fifty cents (US$7 595,50).

When the arbitral award remained unpaid, the two (2) respondents took them to the Magistrates’ Court for registration.  The magistrate duly registered the awards.

Dissatisfied with the magistrate’s registration decision, the appellants then appealed to this honourable court on the following grounds.

That the lower court erred by registering the arbitral award for the respondents despite earlier evidence that appellants had “totally” complied with the arbitral award and that respondent in HC 76/18 had even been paid in excess of what was due to him in terms of the arbitral award.

That the court a quo erred and misdirected itself in disregarding appellant’s evidence in the form of “reconciliation” schedules, bank transfer payments and stop orders.

That the lower court had erred and misdirected itself in finding that the appellants’ evidence was self generated.

That the lower court erred and misdirected itself by registering the arbitral awards where “it was clear” that such registration would be contrary to Public Policy as it would unjustly enrich the respondents as a result of double payment.

The appeal was contested.   Respondents’ opposition was simply that there was nothing on record to show that appellant had complied with the arbitral award.  The issue to be decided by this court is whether or not the court a quo erred in registering the appellants’ arbitral awards.  Let me reiterate right from the onset that the appellant seemed to miss the point on the purpose of registration of an award.  The registration of an arbitral award is for enforcement purposes only.  It is not for the registering court to entertain disputes over merits and demerits of the awards, itself as to whether or not the awards should have been granted in the first.  This is the mistake that appellant made in the lower court and continues to make a fortiori in this appeal court.  Be that as it may, the lower court and in fact this court as well, gave appellant a long ear but still he failed to convince the court of the veracity and import of his argument.

To begin with, it has to be noted that it is not clear whether appellants’ records, from the manner they are couched, imply that the amounts had been paid as at the time the award was granted or as at the time of registration of the award.  This court will give the appellant the benefit of doubt by leaning towards the argument that appellant is arguing that respondents’ arrear salaries had been extinguished or paid in full as at the time of registration of the award.  Regrettably, either way, the appellant’s argument does not find favour with this court, just as it did not find favour with the lower court.  Paragraph 2 of the award document by the arbitrator titled, “On Quantification of outstanding salaries and allowances” states as follows:

“2.	The respondent shall pay the applicants outstanding salaries and allowances to the total of $2 376 669,89 over a period of twelve months until the total amount due is finished.  Such payment shall commence at the end of November 2015 and shall continue to be paid on the last day of each month until finished.

The total amount payable is $2 376 669,89 and the employer shall collect all statutory deductions as required by law.” (emphasis is by the arbitrator)

What the clause means is that with effect from month end of November 2015, the appellant had to pay to each and every one of the 258 employees, an amount towards liquidating the arrear salaries and allowances shown on their respective portions of the award.  By the end of November 2016 the appellant should have paid all the arrears shown on the award in full.

I have already said that it was not for the registering court, let alone this appeal court to listen to the arguments as to whether or not the appellant had paid the awards.  Even if the lower court, in its discretion had listened, the least that appellant needed to do was to produce proof in the form of receipts showing payments as directed in the arbitral award.  In respect of each respondent, it needed to produce in clear terms, receipts showing that a particular payment was for arrear salaries in terms of the award right up to the end of the 12 month period.  In my view that is all that the magistrate asked for and there was nothing “over critical or analytical” about that.  It is true that appellant attached as proof of payment, apparently self generated receipts which did not even show that they were payment for salaries mentioned in the award.  Appellant also attached for instance several annexures which date as far back as 2009, a period well before the granting of the award, as proof of payment.

At registration, the court was only required to register the award, it could only decline to register the award upon production of cogent proof of compliance by the appellant with the arbitral award, which proof in any event should have long been produced to the clerk of court, Sheriff, Messenger of Court or Labour Court.  It was not for the lower court, and certainly not for this court to entertain appellant’s argumentative material and evidence as to whether or not it paid the sums shown on the award.

I take note of the fact that at the beginning of his ruling, the magistrate in my view rightly quoted MATHONSI J (as he then was) in the matter of Elvis Ndlovu vs Higher Learning Centre HB-86-10 when he held that;

“In an application of this nature this court does not enquire into the merits or otherwise of an arbitral award.  This is the province of the Labour Court upon an application or appeal being made to that court.  Registration of an arbitral award is only done for purposes of enforcement because the labour structures have no enforcement mechanism.  Upon registration the award has the effect of a civil judgment of the appropriate court.  This is in terms of section 98 (15) of the Labour Act.  As long as the award stands unchallenged the appropriate court has no mandate to enquire into the propriety or otherwise of that award and is obliged to register it.”

In follows therefore, that for as long as the award stands extant, the registering court has no mandate to enquire into the propriety or otherwise of that award and it logically follows also, that in this appeal the court has no reason to entertain an appeal premised on the grounds that the registering court in effect failed to enquire into the propriety or otherwise of that award.  The learned magistrate in the court a quo also pertinently quoted from BHUNU J (as he then was) in Wells and 66 others vs Dunstan Transport (Pvt) Ltd HH-787-15 where he pointed out that:

“It is not permissible for the applicant to register any order other than that obtained from the arbitrator.  He cannot adulterate the arbitral award by factoring in any amendments to the award.  He cannot add or subtract anything from the order as given by the arbitrator.  The respondent’s proposition suggesting that the applicants should make provision for payments already made is untenable and illogical as it has the effect of opening flood gates for the applicants to increase their claims should they feel that they left anything out in their claim before the arbitrator or on account of new facts arising.  This is simply not permissible at law.  Whether or not respondent has made partial payments is a matter between it and the Sheriff or his deputy.  Partial compliance with the award does not therefore affect the registration of the arbitral award furnished by the arbitrator in terms of section 98 (13).  Neither the applicants nor the court may temper with the order as given by the arbitrator.  It must be registered as it is without any alteration.”

Just as stated elsewhere in this judgment the magistrate also found that it also did not assist much that the appellant (then respondent’s)  case, that the bulk of the documents filed by it were self generated leaving room for manipulation.

The judgment per BHUNU J in Wells and 66 Others vs Dunstan Transport (Pvt) Ltd (supra) is exactly the scenario that we have in casu.  In fact in the present case, what appellant now refers to as the evidence of compliance or partial compliance is hotly disputed. 	I am also inclined to accept that the position by the court and esteemed judges above sterms chiefly from section 98 (14) of the Labour Act, Chapter 28:01 which provides that;

“Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of subsection 13 to the court of any magistrate which would have jurisdiction to make an order corresponding to the award had the matter been determined by it, or if the arbitral award exceeds the jurisdiction of any Magistrates’ Court, the High Court.” (underlining is mine)

The underlined part shows that the award should only be “submitted” as it is.  One cannot therefore start arguing at registration stage, let alone in the appeal court that the registering court should have not registered the award in its original form but should have first listened to evidence and argument of any changes and then made alterations to the award. Further, if a party against whom the award was granted is not even allowed to mount a defence on the merits at registration stage, then certainly, the registering process cannot be equated to a claim as appellant seems to argue very belatedly, not even at the registration stage but on appeal in its “respondent’s supplementary heads of argument.”

This court finds no misdirection whatsoever by the court a quo.

Finally, the appellant argued strangely in our view, that allowing the registration of the awards to stand as it is would be contrary to public policy.	It is clear from Article 36 (3) (a) and (b) of the Model Law Code that an award would be contrary to Public Policy if proved to have been induced by such immoral acts as fraud, corruption, extortion, blackmail etc or at least in breach of the rules of natural justice.  No such allegations have been made or proved in this case, even at this late stage.

Accordingly, the appeals in both cases lack merit and are dismissed with costs of suit.

Makonese J ………………………………… I agree

Wilmot & Benett c/o Danziger & Partners, appellant’s legal practitioners

Mavhiringidze & Mashanyare, respondents’ legal practitioners