Kudakwashe Kachambwa v Next Pages Concept

### Preamble
1
HH 432-13
HC 10328/12
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KUDAKWASHE KACHAMBWA

versus

NEXT PAGES CONCEPT

HIGH COURT OF ZIMBWABWE

TAKUVA J

HARARE, 18 November 2013

Opposed Matter

D. Sibanda, for the applicant

Miss O.T Sanyika, for the respondent

TAKUVA J: This is an application for the registration of an arbitral award.

The facts which are common cause are as follows;

On 29 July 2012 an arbitrator handed down an arbitral award in favour of the applicant.  The respondent filed an application for review with the Labour Court on 22 August 2012. The applicant filed this application on 7 September 2012.

On the date of the hearing Mr Sibanda for the applicant submitted that the respondent was no longer opposed to the application. He however said the parties were not in agreement in so far as costs were concerned. He argued that although the draft order indicates that there should be no order as to costs he was asking the court to award costs to the applicant on the basis that the grounds for opposition are not bona fide and without merit. He submitted that it is trite that an application for review per se has no effect on an application for registration of an arbitral award. Therefore so goes the argument of the respondent’s grounds are not tenable at all. Reliance was planned on the case of HH 286/11.

On the other hand Miss Sanyika submitted that the filing of the notice of opposition was not meant to delay any proceedings. She attributed this to a misconception on the part of the respondent that an appeal or review could suspend the registration of an arbitral award. The respondent was a self-actor who upon receiving legal advice from her readily accepted it and did not persist in opposing the application. She indicated that the respondent does not oppose the application except the prayer for costs by applicant. Finally she submitted that the applicant acted out of ignorance without any intention to frustrate or delay the process which in fact was not delayed by respondent’s opposition.

While I accept that ignorance of the law is no excuse, the courts have always held that self-actors should be given some latitude on the question of costs-see Moyo v Fraser N.O and another 2006(1) ZCR 257(5) at 263E-F.

Further, the fact that the respondent did not persist with the opposition immediately after getting the legal advice to the contrary, is a factor in its favour see Binza v Acting Director of Works and another 1998(2) ZLR 364.

For the reasons I am of the view that this is not a proper case for the court to exercise its discretion in favour of awarding costs to the applicant.

Accordingly it is ordered as follows;

The arbitral award granted in favour of the applicant on 29 July 2012 be and is hereby registered with this court and enforceable as such.

The respondent be and is hereby ordered to pay applicant a sum of USD 20 310-00 (twenty thousand three hundred and ten dollars)

There shall be no order as to cost.

Sibandaa & Partners, applicant’s legal practitioners