Dyavanhu Munyikwa v Dyno Nobel Zimbabwe (Private) Limited

### Preamble
1
HH 151-2013
HC 10518/11
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DYAVANHU MUNYIKWA

versus

DYNO NOBEL ZIMBABWE

(PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 5 June 2012 and 15 May 2013

Opposed Matter

M R Mandevere, for the applicant

R Mutasa, for the respondent

MATHONSI J:  On 5 June 2012 I handed down an ex tempore judgment for the registration of an arbitral award made in favour of the applicant against the respondent on the basis that there was no merit in the opposition to such registration.

I was not requested to give full reasons for that decision although it now turns out that the respondent noted an appeal to the Supreme Court against my decision. The appeal was noted on 26 June 2012. It is only now, specifically on 6 May 2013, that I received a note from the registrar which itself is dated 4 April 2013, requesting reasons for the judgment.

It is crucial that where an appeal is being made and full reasons are requested, the request should be brought to the judge’s attention as a matter of urgency. Failure to do so results in serious prejudice to the parties who are entitled to prosecute their cases without undue delay. As it is, the matter has remained in limbo without the appeal record being prepared and forwarded to the appeal court for almost eleven months. It is a delay that could have been avoided had the matter been brought to my attention when the appeal was noted.

These are the reasons.

The applicant was employed by the respondent as a regional sales manager having joined the respondent on 2 March 2002. He resigned on 14 April 2011 at which time the parties engaged each other on what was due to the applicant by way of terminal benefits. According to the findings of the arbitrator, they eventually agreed on what was due to the applicant but could not agree on how and when the terminal benefits were to be paid. This was because the respondent offered to pay the benefits over a period of twelve months from the time of termination, a proposal which was unacceptable to the applicant.

A stalement having arisen, the matter was referred to the Ministry of Labour for conciliation. It was then referred to arbitration before I Machingami. The arbitrator stated in his award that:

“Both parties were properly notified (of the hearing) and only claimant (the applicant herein) attended the hearing. The respondent defaulted at the hearing and no communication was received explaining the non-appearance.”

In considering the merits of the matter the arbitrator noted that the respondent had, through its Human Resources Manager, written to the applicant on 18 July 2011 acknowledging that the applicant was entitled to school fees arrears, utility bills and a 13th cheque totalling $7 279-65 in addition to a sum of $9 162-00 which had already been agreed as constituting the applicant’s terminal benefits. This meant that the applicant was owed a sum of $16 441-65 which the parties agreed to.

Citing s 13 (1)(b) of the Labour Act [Cap 28:01] the arbitrator found that the applicant was entitled, at termination, to his benefits and in light of the fact that the respondent had even failed to pay those benefits even in accordance with its own payment plan, the arbitrator made the award which is the subject of this application for registration.

Although the award was made on 15 August 2011, when the applicant filed the application for registration of the award on 25 October 2011, the respondent had not bothered to comply with both the award and its payment plan. Indeed there had been no compliance whatsoever when the matter was placed before me on 5 June 2012, more than a year after the employment contract was terminated.

The respondent opposed the application for registration and in the opposing affidavit of Lackson Gono, its general manager, the respondent admitted that the parties had indeed agreed that the applicant would be paid his terminal benefits and the quantum of what was to be paid to the applicant. Gono stated at paragraph 6 of the opposing affidavit:

“6.	Ad para 5, 6 and 7 of applicant’s founding affidavit

These parties agreed that the terminal benefits would be paid within a year from the date of resignation.”

The only basis for opposition contained in the opposing affidavit is that the award was granted in breach of the rules of natural justice in that the respondent was not given an opportunity to be heard as the notice of the hearing was received on 25 August 2011 when the hearing was on 2 August 2011 and the award was handed down on 15 August 2011. In support of that claim Gono purported to attach, as annexure “A”, a copy “of the letter notifying the date of hearing”

No such letter was attached. In fact annexure “A” to the opposing affidavit is an internal memorandum generated by the respondent’s acting human resources manager ostensibly on 29 August 2011 which is extremely unhelpful. One is left to speculate as to why the real notification was not attached.

I should add that, other than filing opposition to the application for registration of the award, the respondent did not do anything to contest that award. It did not appeal against it, neither did it seek to have it set aside in any way. The award has remained in force.

I am not persuaded that the respondent received the notice of the arbitration on 25 August 2011. The arbitrator was emphatic in the award that both parties had been notified of the hearing set for 2 August 2011. At the time that the respondent filed its opposing affidavit it had had sight of the award and had an opportunity to challenge that part of the award and to place before the court satisfactory evidence to show that, indeed the notice came after the fact. It did not.

Quite to the contrary, the respondent was content with submitting an internal memorandum which is of no evidentiary value whatsoever. A document which may have been fabricated to sustain a limping argument.

A party which is challenging an arbitral award should invoke the provisions of s 92 E(3) of the Labour Act [Cap 28:01] which allows the Labour Court to make an interim determination for the stay or suspension of an arbitral award. Where the award is 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 [Cap 7:15]: Ndlovu v Higher Learning Centre HB 86/10; Greenland v Zichire HH 93-13; Tapera & Ors v Field Spark Investments (Pvt) Ltd HH 102-13.

While it is true that recognition or enforcement of an arbitral award may be refused where it is shown that the respondent was not given proper notice of the arbitral proceedings or was unable to present its case, I am of the view that that provision in Article 36 of the model law does not save the respondent.

I have already made a finding that the respondent was aware of the arbitration proceedings set for 2 August 2011 but chose not to appear. In fact the applicant has stated that he even defaulted at the conciliation proceedings (paragraph 3.1 of the applicant’s answering affidavit). This is a party that was bent on stalling proceedings and had no respect for the arbitration process. To the extent that the respondent chose not to attend the proceedings, it cannot be allowed to invoke Article 36 to stop registration of the award. It made its bed and must now lie on it.

Even if I am wrong in that conclusion, a closer reading of Article 36 shows that the protection provided therein can only be enjoyed by a party against whom the award is made at the discretion of the court. Article 36 (l)(a)(ii) provides:

“Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only at the request of the party against whom it is invoked, if that party furnishes to the court where recognition or enforcement is sought proof that the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case.”

The use of the word “may” in that provision gives the court a discretion, in appropriate circumstances, to refuse to recognise an award. To my mind, that discretion can also be exercised against that party. In the present case, the respondent has not even attempted to contest the claim for terminal benefits or the quantum of those benefits. Instead, it has readily admitted owing the money awarded to the applicant. Throughout the proceedings it has maintained that it would like to pay the money within a period of 12 months. That is the only case that it has.

At the time of hearing the application, the 12 months period had already lapsed, the applicant having resigned on 14 April 2011. Therefore there is no basis for contestation at all. I am unable to exercise my discretion in a way that leads to an injustice to one party. It is clear to me that the respondent is playing for time and it cannot use this court as a vehicle for that.

It is for these reasons that I rejected the opposition and registered the award in the following, that:

The arbitral award granted in favour of the applicant against the respondent on 15 August 2011 be and is hereby registered as an order of this honourable court.

The respondent be and is hereby ordered to pay to the applicant the sum of sixteen thousand four hundred and forty one United States of America dollars and sixty five cents ($16 441-65) together with interest thereon at the prescribed rate of 5% per annum from 15 August 2011 being the date of judgment to date of payment in full.

The respondent to pay costs of suit.

Mbidzo Muchadehama & Makoni, applicant’s legal practitioners

Chihambakwe,Mutizwa & Partners, respondent’s legal practitioners