Zimbabwe Urban Council Workers Union v Redcliff Municipality

### Preamble
1
HB 150/19
HC 2918/17
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ZIMBABWE URBAN COUNCIL WORKERS UNION

Versus

REDCLIFF MUNICIPALITY

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 5 JUNE 2018 & 10 OCTOBER 2019

Opposed Application

A. Chinamatira for the applicant

S.. Zingano for the respondent

TAKUVA J:	This is an application for leave to execute pending appeal against the judgment of this court per MAKONESE J under case number HC 2434/17 registering an arbitral award in favour of the applicant.

The facts are that the applicant’s members are respondent’s employees.  Pursuant to a dispute over non-payment of applicant’s members’ salaries, an Arbitrator granted an award on 16 December 2015 ordering respondent to pay US$1 116 053,,50 to the  applicant.  On 12 September 2017 the applicant filed an application for the registration of the award under HC 2434/17 in terms of s98(14) of the Labour Act (Chapter 28:01).  Respondent unsuccessfully opposed the application which was duly registered on the 29th September 2017.  Aggrieved, respondent noted an appeal against the order on 19 October 2017.  The grounds of appeal as stated in the notice of appeal are as follows:

“1.	The judge a quo misdirected himself at law and in  fact by determining and granting the application for registration of an arbitral award in chambers without hearing the parties or referring the matter to the opposed roll in light of  the pertinent issues raised and the applicant’s opposing affidavit.

2.	The judge a quo misdirected himself in respect of the law and of the facts in not finding that the deponent of the affidavit to the respondent’s application has a mere member of a local branch and did not have authority to or did not show that he was properly authorized to act on behalf of the respondent.

3.	The judge a quo erred in ignoring the fact, that granting the arbitral award would be contrary to the public policy of the country in view of the fact that appellant would not be able to operate as a public institution due to the financial impossibility of complying with such an award.

4.	The judge a quo erred in disregarding the appellant’s evidence to the effect that it had paid US$315 291,88 by registering the award in the full amount claimed by respondent.

5.	The judge a quo erred in awarding respondent costs on a higher scale when there was no justification in fact or law to award costs on a punitive scale.”

In opposing this application, the respondent relied on the following grounds:

The applicant is not properly before this court.  This, it was alleged, applies to all of applicant’s actions challenging the obtaining of the arbitral award, the application for registration of arbitral award and the current application for leave to execute pending the determination of respondent’s appeal.

Respondent will suffer irreparable harm if the award is executed since it is clear that there is no authority on the part of the deponent to the applicant’s affidavit to represent the applicant.

The balance of convenience favours the respondent since respondent will face closure of business if the award is executed and it later turns out that the award was improperly obtained.

The respondent has a strong case against the applicant pertaining to the manner in which the arbitral award was obtained and is being enforced.

The respondent has complied and is in the process of complying with the arbitral award.  It would not be in the interests of justice for the award to be executed.  In this regard, applicant would not suffer prejudice when compared to the respondent.

The court ought to consider that the registration of the award in the chamber application proceedings deprived respondent of the chance of being heard in order to fully ventilate its argument.  That procedure infringed the audi alteram partem rule.

Respondent’s argument in respect of the 1st point is that there is no proof of authority or resolution from the applicant’s National Executive Committee authorising the deponent to act on applicant’s behalf that was produced before the arbitrator in the arbitration proceedings.  Similarly, no proof of authority or resolution from the applicant’s National Executive Committee authorising the deponent to file the chamber application for registration of the arbitral award in case number HC 2434/17.  It was also contended that in respect of the current application the deponent attached a letter being annexure A dated 2nd November 2017 which letter was in compliance with the applicant’s constitution in that it did not emanate from the applicant’s National Executive Committee.  Further, the letter being dated 2nd November 2017, a date way after institution of the arbitration proceedings and the chamber application cannot and did not ratify his actions in the arbitration and chamber application proceedings.

Respondent relied on National Workers’ Union & ALR Transport Union vs Air Zimb Holdings (Pvt) Ltd; Air Zimb (Pvt) Ltd and The Registrar of the High Court SC-14-2011 wherein at page 5 of the cyclostyled judgment ZIYAMBI JA stated as follows:

“It seems to me Mr Mucheche misconceived the basis of the court a quo’s decision.  The finding of the court a quo was not that the appellants as trade unions could not sue on behalf of their membership but rather that the deponents had not established that they had authority either from the appellants or their membership to bring these proceedings …

Further, in terms of s29 of the Labour Act (Chapter 28:01) a registered trade union acts in terms of its constitution.  It is the constitution which must make provision regarding the person (s) authorized to institute proceedings on its behalf and the manner in which such authority is to be given.

The applicant in arguing that the deponents had  authority and therefore that he respondent has no prospects of success on appeal, did not deal with the specific point that annexure A was issued way after the commencement of the proceedings.  This, in my view, enhances the respondent’s prospects of success on appeal.  See Gweru Water Workers’ Committee vs City of Gweru SC-520-12; Zimbabwe Commercial Farmers Union v Gambara H-375-15.

As regards irreparable harm, it was contended that execution of the award at this stage will have irreparable consequences on the respondent which may be forced to shut down its operations when there is a possibility that the respondent’s appeal may succeed.  In my view the harm in casu is self evident.  Equally so, the balance of convenience favours the dismissal of the application for leave to execute pending appeal.  This is partly so because the respondent has partially complied with the award and is in the process of complying.  Obviously, the applicant will suffer, prejudice but when compared to the prejudice that respondent will suffer, it becomes clear that the balance of convenience favours the respondent in that such execution would place in jeopardy the employment and livelihood of all the affected members.

It was also argued that the execution of the award pending appeal would be contrary to public policy since the award itself was obtained contrary to the law and to the provisions of the applicant’s constitution.  In arguing their respective cases, both parties relied on the principle emanciated in ZESA v Maposa 1992 (2) ZLR 452 (S) at 466E-G wherein GUBBAY CJ (as he then was) stated that:

“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.  In such a situation the court would not be justified in setting the award aside.  Under article 34 or 36, the court does not exercise an appeal power by having regard to what it considers should have been the correct decision.   Where, however, the reasoning or conclusion in an award goes beyond mere faultness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in tits 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 hurt by the award, then it would be contrary to public policy to uphold it.”

Article 36 gives the following examples of what would be perceived as being contrary to public policy.

If the making of the award was induced or affected by fraud, corruption or;

If a breach of the rules of natural justice occurred in connection with the making of the award.

Applicant argued that in opposing the registration of the award, respondent did not advance any such allegations.  Therefore, there is no question of the award being contrary to public policy and the appeal has been noted to frustrate the applicant.  To the contrary, respondent contended that in fact the rules of natural justice were breached at the time of the registration of the award.  Its gripe with the procedure is that when the order for registration was granted it had not been given an opportunity to appear and argue its case as the matter was treated as an unopposed chamber application when in fact it was opposed and an opposing affidavit had been filed.  The matter ought to have been referred to the opposed roll, so the argument went.  Respondent relied on Permanent Secretary, Ministry of Higher and Tertiary Education v College Lecturers Association & Ors HH-688-15 where the court stated thus;

“I have said Part D is concerned with chamber applications which do not have to be set down for argument and which if not urgent, the registrar should “in the normal course of events” (r245) refer to a judge for consideration in chambers.  In my view a chamber application that is opposed is treated like a court application and must be allocated to a judge for set down on the opposed roll.  I agree with Mr Mucheche for the applicant that a rule of practice has evolved in terms of which such matters are dealt with that way.

There is no way in which an opposed chamber application can be disposed of without the parties filing heads of argument and seeking a set down of the matter on the opposed roll.  That would infringe the audi alteram parterm rule.  …(my emphasis)

As I pointed out before, the applicant has not said anything about this ground of appeal.  At the very least it is an arguable ground with a potential to boost the respondent’s prospects of success on appeal.

Finally it was argued by the respondent that it has since paid$315 291,88 to applicant’s members over time. It further argued that compliance was also effected through payment in kind especially through the provision of residential stands.  However, applicant strongly refuted these averments challenging respondent to prove by producing documents showing how much exactly was paid and which employees were allocated stands.  Respondent attached to its opposing affidavit under HC 2434/17 annexure A showing names of employees and amounts received in compliance with the arbitral award.  It also attached a letter dated14 July 2017 from its Acting Town Clerk, to the then Minister of Public Works and National Housing seeking approval to offer residential stands to employees against salary arrears.  According to the respondent, these are the arguments it had hoped to develop during the hearing of the opposed matter.  Unfortunately, the award was registered in September 2017 before the offer bore results.

The law as regards an application for execution pending appeal is settled in our jurisdiction.  The noting of an appeal automatically suspends execution of the judgment appealed against.  If the party who succeeded in obtaining the judgment against which the notice of appeal has been lodged wishes to execute upon the judgment, it is he who is required to make an application for leave to do so and the onus is on him as the applicant to show why the judgment should be carried into execution.

The relevant considerations to the grant of an application for leave to execute pending appeal were identified by CORBETT JA in South Cape Corporation (Pvt) Ltd v Engineering Management Services (Pvt) Ltd 1977 (3) SA 534 (AA) at 545 as;

“1.	The potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (respondent on the application) if leave to execute were to be granted;

2.	The potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application) if leave to execute where to be refused;

3.	The prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, e.g. to gain time or harass the other party; and

4.	Where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience, as the case may be.”

Although the special circumstances in which the court will order a judgment to be executed pending appeal have not been precisely formulated, the view of INNES CJ in Rood v Wallach 1904 T5257, Chief Justice said;

“In considering in each particular matter what real and substantial justice requires, the court may take into account all the circumstances surrounding the case.  And among other things it would be justified I think in taking into consideration the general circumstances of the parties.  Cases may occur in which it would be extremely hard on the losing party to order him to pay the amount of the judgment before appealing, but there may be other cases in which it would be equally hard that, the successful party should not receive payment of the amount awarded because an appeal as been noted.  The court should be chary of taking the circumstances of the parties into account, but it may in some cases consider them.  See also Nzara v Tsanyau HH-303-14.

Applying the principle to the case on hand, I find that on the basis of facts outlined above if leave to execute were to be granted the respondent is likely to sustain irreparable harm since the quantum of the debt is larger than that owed.    I find also that if leave to execute were to be refused, the applicant’s members who are respondent’s employees are not likely to suffer irreparable harm since the debt relates to arrear salaries which they will receive in the event that the appeal fails.  As regards prospects of success on appeal, all I can say is that from the grounds of appeal, the applicant’s response and submissions.  I am unable to come to a conclusion that the appeal is frivolous or vexatious or that it has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose.  I certainly cannot describe the appeal as an exercise in futility in the sense that there is no reasonable possibility of the Supreme Court taking a different view from that of the court a quo.

In the circumstances the application for leave to execute the judgment under case number HC 2434/17 pending appeal be and is hereby dismissed.  Each party shall bear its own costs.

Mavhiringidze & Mashanyare, applicant’s legal practitioners

Wilmot & Bennet c/o Danziger & Partners, respondent’s legal practitioners