Innocent Nehowa v Barep Investments (Private) Limited

### Preamble
1
HH 357-12
HC 8276/2011
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INNOCENT NEHOWA

versus

BAREP INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MAKONI J

HARARE, 1 March, 21 June, and 05 September 2012

Mr Jera for the Applicant

K. Chirenje for the Respondent

Opposed Application

MAKONI J:	The Applicant approached this court seeking the registration of an arbitral award in terms of section 98 (14) of the Labour Act [Cap 28:01].

The application is opposed mainly on three grounds which were raised as points in limine. Firstly the Respondent argues that the applicant proceeded by way of chamber application instead of a court application. Secondly that the award was granted in default and the Respondent has applied for the rescission of the award. Thirdly the matter is lis pendenis.

Points in Limine

1)Form of application

It was submitted on behalf of the respondent that the applicant adopted the wrong procedure by approaching the court through a chamber application. The application does not meet the criteria set in the rules.

It was submitted on behalf of the Applicant that the procedure he adopted is in terms of the rules, correct as the relief that the Applicant seeks is procedural.

Order 32 Rule 226 (2) Provides;-

“An application shall not be made by a chamber application unless:-

the matter is urgent and cannot wait to be resolved through a court application; or

there rules or any other enactment so provide; or

the relief sought is procedural or for a provisional order where no interim relief is sought only;

the relief sought is for a default judgment or a final order where;-

the defendant or respondent, as the case may be, has previously had due notice that the order will be sought and in default; or

there is no other interested party to the application; or

every interested party is a party to the application; or

there are special circumstances which are set out in the application justifying the application.

In my view this application falls under Rule 226 ( c). The relief being sought is procedural. This court is being asked to register the award and not determine the merits of the matter. The function of this court is merely to give effect to the award so that it can have the force of a judgment of this court.

Even assuming the Applicant had adopted the wrong procedure, the respondent has not established that it has been prejudiced by the applicant’s failure to institute the application in the proper form. See Rule 229 ( C). I will therefore dismiss the point in limine.

2)Application for Rescission of the Arbitral Award.

It was submitted on behalf of the respondent that the arbitral proceedings have not been finalised. The award cannot be registered as there is no final decision. A default judgment is not a final judgment. Further the respondent has applied for the rescission of the default award. That application must be determined before the registration of the award.

It was submitted on behalf of the Applicant that once an award has been granted, quantified and certified that marks the conclusion of arbitral stage. The award can be registered. The application for rescission was filed to buy time and it has no merits.

In Mvududu v ARDA HH 286/11 it was held that in order to qualify for registration, all that an Applicant has to do is to satisfy the court that (a) he is a party to the arbitral proceedings; (b) the award relates to him; and (c) the copy he is presenting for registration has been duly certified by the arbitrator in terms of section 98 (13) of the Labour Act [Cap 28:01].

As was rightly submitted by Mr Jera, the Applicant has satisfied the above requirements. He is therefore entitled, as of right, to have the award registered. The argument advanced by the respondent will not stand in his way. An application for rescission of judgment does not stay the judgment the subject matter of the application. In this case the application does not stay or prevent the Applicant from proceeding to have the award registered. In view of the above, I will dismiss the point of limine.

Lis Pendenis

The Applicant once filed a chamber application and withdrew it after the Respondent had filed a notice of opposition. He did not tender the respondent’s wasted costs. He then filed the present application on the same facts.

It was submitted on behalf of the respondent that the fact that the Applicant did not tender the wasted costs means that the case is still to be finalised and can only be deemed to have been concluded upon payment of wasted costs.

I want to agree with the submissions by the Applicant that the issue of the propriety of the notice of withdrawal was never raised by the Respondent upon its filing. It is only raising it now as a defence to the present application. The Respondent had other remedies to pursue such as communicating the irregularity of the notice of withdrawal to the applicant and having the matter set down for argument on the issue of costs. In any event, the raising of a plea of lis alibi pendenis is not a bar for this court to determine the present application. See Supline Investments Pvt Ltd vs Forrestry Company of Zimbabwe HH 76/07 where it was held;-

“It is trite that the plea of lis alibi pendenis is not a complete bar to the bringing of proceedings in this court. It is merely a plea to the court for the court to stay the proceedings before it to allow the other proceedings to be completed. As is made clear in Mhungu vs Mtindi 1986 (2) ZLR 17 (S) at 172 E-H, where a plea of lis alibi pendenis is raised, the court has a discretion as to whether or not it should stay the proceedings.”

In casu, I will exercise my discretion in favour of the applicant for to exercise the discretion in favour of the Respondent will unnecessarily deny the Applicant to obtain a relief that it seeks to obtain. What is outstanding in the HC 7567/11 is just the issue of costs which the Respondent can still pursue if it so inclined. It is not the substantive issue for determination in the matter. I will therefore dismiss the point in limine.

Appeal pending

The Respondent also submitted that award cannot be registered as it has noted an appeal against the award at the Labour Court.

It is not clear what the Respondent has appealed against to the Labour court as the Respondent argued that the matter is still pending before the Arbitrator for an application for rescission. Even assuming there was an appeal pending this court in Kingdom Bank Workers Committeee vs Kingdom Bank Financial Holdings HH 302/11 held that an appeal from an arbitrator’s decision to the Labour court does not suspend the decision being appealed against. The Respondent cannot, therefore, succeed in that argument.

Heads of Argument

The applicant also raised the point that it was improper for the Respondent to attach evidence to its Heads of Argument. The issue raised by the applicant is an important one as the courts are increasingly coming across Heads of Argument which fall short of the definition as is prescribed in the Rules. I have deemed it necessary to devote part of this judgment to deal with an issue which should ordinarily be treated as well established and trite. Our courts are increasingly being confronted with heads of argument where annexures, which should have been attached to pleadings are attached to the Heads of Argument. In some instances new issues in the form of facts as distinct from points of law, are raised in Heads of Arguments.

In motion proceedings parties proceed by way of filing affidavits viz the founding affidavit the opposing affidavit and the answering affidavit. These are the foundation papers where the parties lay the basis upon which they seek to rely on. Rule 235 provides that;-

“After the answering affidavit has been filed, no further affidavits may be filed without the leave of the court or Judge”.

Thereafter if a party is to be represented by a legal practitioner it files Heads of Argument in terms of Rule 238. The rules set out that the Heads of Argument must clearly outline the submissions he intends to rely on and setting out the authorities, if any, which he intends to cite. Heads of Argument constitute persuasive argument making reference to issues and evidence already placed before the court by the parties at the founding stage. Any process filed in violation of the rules will not take the parties’ case any further. It constitutes deceit on any party seeking to introduce further pleadings or evidence through the back door. A legal practitioner who pursues such a course of action prejudices their client by failing to present evidence before the court at the appropriate stage and by failing to effectively use the opportunity to present to the court Heads of Argument which will assist their client in its cause.

In casu, the court will not have regard to the annexures attached to the Heads of Argument as they are improperly before the court. The legal practitioner for the Respondent should have utilized the channel provided by Rule 235 if he felt that there was need to respond to issues raised by the Applicant in the answering affidavit.

Costs

Both parties argued to be awarded costs on a higher scale. As is clear from the above, the Applicant has succeeded in all respects. Costs follow the cause. The question is on which scale. The Applicant has not established a basis for this court to award costs on a higher scale. The costs will be awarded on the ordinary scale.

In the result I will make the following order;-

The arbitral award granted by the Honourable M. Chimhuka on 12 July 2011 be and is hereby registered as an order of this court.

The Respondent to pay costs of suit.

Chirenje Legal Practitioners, Respondent’s legal practitioners

Messrs, Jakachira & Company, Applicant’s legal practitioners