Gaylord Baudi v Kenmark Builders (Private) Limited

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                                                               HC 2995/11
GAYLORD BAUDI
versus
KENMARK BUILDERS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE
PATEL J

Opposed Application

HARARE, 22 September 2011 and 19 January 2012

C. Daitai, for the applicant
J. Dondo, for the respondent



      PATEL J:     The background to this matter is as follows. A labour

dispute arose between the parties in 2009 and was referred to

compulsory arbitration. The arbitrator found that the applicant had been

constructively dismissed and ordered the parties to agree on damages in

lieu of reinstatement. The respondent appealed against this award to the

Labour Court and also applied for stay of execution. The application for

stay was dismissed on 3 December 2010, while the appeal was heard on

24 February 2011 and then dismissed on 3 June 2011. On 4 March 2011,

the arbitrator quantified the damages in lieu of reinstatement and

ordered the respondent to pay the sum of US$28,277. On 10 March 2011,

the respondent appealed to the Labour Court against that award and this

appeal is still to be determined. Subsequently, on 30 March 2011, the

respondent applied to the Labour Court for an order suspending the

award. This application to stay the award was dismissed on 7 June 2011.

In the interim, the applicant secured alternative employment and is still

so employed.

      The applicant now seeks the registration of the quantified award

and payment of costs on a higher scale. The respondent resists
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registration of the award on the ground that the applicant is presently

employed and would therefore suffer no prejudice in awaiting the

outcome of the pending appeal.




Suspension of Arbitral Awards

      It is not in dispute that an appeal to the Labour Court against the

decision of an arbitrator under section 98(10) of the Labour Act [Chapter

28:01] does not suspend the decision appealed against. This is expressly

provided by section 92E(2) of the Act in relation to every appeal to the

Labour Court in terms of the Act. Nevertheless, section 92E(3) empowers

the Labour Court to make any interim determination it may deem fit, viz.

for the stay or suspension of an award, pending the determination of an

appeal. It is common cause, in view of the dismissal of the respondent’s

application in June 2011, that the quantified award has not been

suspended and is therefore presently registrable.


Grounds for Refusing Registration of Awards

      Section 98(14) of the Labour Act provides for the registration of

arbitral awards, but does not indicate the grounds upon which

registration may be declined. In any event, the common law grounds for

refusing the recognition or enforcement of arbitral awards generally are

now restated and prescribed in Article 36 of the Model Law, as codified in

the Schedule to the Arbitration Act [Chapter 7:15]. In principle, the same

grounds for refusal are equally applicable to the registration of arbitral

awards in labour matters.


Public Policy
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      In terms of Article 36(1)(b)(ii) of the Model Law, recognition or

enforcement of an award may be refused if it would be contrary to the

public policy of Zimbabwe. This is elaborated by Article 36(3) to mean,

without limiting the generality of the concept, where the making of the

award was induced or effected by fraud or corruption or where it

involved a breach of the rules of natural justice.

      As was broadly enunciated in Jajbhay v Cassim 1939 AD 537, the

principle of public policy is meant to accomplish “simple justice between

man and man”. What the courts must be astute not to approve or

enforce, per Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A), is what is “clearly

inimical to the interests of the community, … contrary to law or morality,

or run(s) counter to social or economic expedience”. In any event, the

public policy defence must be construed restrictively in order to preserve

and recognise the basic objective of finality in all arbitrations. It should be

upheld only if some fundamental principle of the law or morality or

justice is violated. See Zimbabwe Electricity Supply Authority v Maposa 1999

(2) ZLR 452 (S) at 465.

      In this regard, Mr. Dondo submits as follows. If the second award

were to be enforced and the appeal against it were to succeed, the

respondent would have to sue the applicant in order to recover its

money. This would entail a multiplicity of actions and would therefore

militate against public policy. It would also cause grave injustice,

prejudice and inconvenience to the respondent, contrary to fundamental

notions of justice. In contrast, the applicant is gainfully employed and will

therefore suffer no prejudice, as she will eventually be paid if she

succeeds on appeal.

      As against this, Mr. Daitai points out that, since the applicant is

presently employed, she can always repay the amount in question in the
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event that the award is enforced but subsequently set aside on appeal.

More significantly, he submits that the registration and enforcement of

an award pending appeal is provided for by the Labour Act and therefore

cannot be contrary to public policy.

      I am entirely in agreement with this submission. 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 by 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.

      In the instant case, the respondent’s applications for the stay of

both awards have already been dismissed. It follows that, as a matter of

public policy, there is nothing to preclude the registration and

enforcement of the award in casu. This application must therefore be

allowed.
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Disposition

      As regards costs, the applicant’s position is that the respondent

proceeded with its opposition in this matter despite the dismissal of its

applications to stay both awards and despite the dismissal of its appeal

against the first award. I note, however, that at the time that the

respondent filed its notice of opposition, on 30 March 2011, its appeals

against both awards and its application for stay of the second award

were still pending and yet to be determined. In the circumstances, I am

disinclined to penalise the respondent with costs on a higher scale as

sought by the applicant.

      In the result, the application for registration of the second award

made by the arbitrator on 4 March 2011 is hereby granted, with costs on

the ordinary scale. The draft order filed of record is amended to provide

accordingly.




Magwaliba & Kwirira, applicant’s legal practitioners
Chinamasa, Mudimu & Dondo, respondent’s legal practitioners