Trish Kabubi v Zimrock International (Pvt) Ltd

### Preamble
1
HH 321-12
HC 2062/10
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TRISH KABUBI

versus

ZIMROCK INTERNATIONAL (PVT) LTD

HIGH COURT OF ZIMBABWE

MAKONI J

HARARE, 14 October, 2010 and 11 July 2012

Opposed Matter

A. Moyo, for the applicant

Mrs Matsika, for the respondent

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

The application was opposed. The respondent’s opposing affidavit was deposed to by Mr Andrew Mugandiwa who is a registered legal practitioner and a partner in Wintertons Legal Practitioners. The basis for contesting the applicant’s case was that the respondent had filed an appeal in the Labour Court. The Labour Court refused to hear the respondent on the basis that it had dirty hands. The respondent sought leave to appeal against the decision of the Labour Court.

By the time this matter was heard, the respondent’s application for leave to appeal had been dismissed. The respondent had then appealed to the Supreme Court against the decision.

In her answering papers, the applicant raised two points in limine. The first one was that the respondent has dirty hands and should not be heard. The issue of dirty hands arises from a ruling made by the Labour Court dated 13 April 2010. The respondent had appealed to the Labour Court to have the award set aside.  The Labour Court refused to hear the respondent on the basis that it approached it with dirty hands in that the respondent had not settled the award.

The second point was that there was no proper opposition to the application. The basis for this averment is that the deponent to the opposing affidavit, Mr Mugandiwa, was seriously conflicted in this matter. He had presided over the disciplinary authority at the internal hearing which resulted in the application being dismissed. He represents the respondent in these proceedings. No cogent reasons have been advanced on the papers to justify the course of action taken by Mr Mugandiwa.

I will deal with the point in limine in seriatim.

DIRTY HANDS

It is the applicant’s contention that the respondent was specifically found to have dirty hands and declined audience by the Labour Court. It was specifically ordered to cleanse its dirty hands but remains obdurate to this day. The opposition to the application if accepted is tantamount to this court furnishing the respondent with the dish and soap to cleanse its dirty hands without complying with the directive by the Labour Court.

It was submitted on behalf of the respondent that the doctrine of dirty hands has been wrongly applied to an arbitral award. The law is that it applies to court orders or open defiance of statutory provisions. An arbitral award does not constitute an order of a court. It was further submitted that the respondent had appealed against the award and if it is forced to comply with the award, then the appeal becomes a mere academic exercise. An appeal in terms of s 98(10) of the Labour Act has the effect of suspending the decision being appealed against.

The challenge by the respondent raises two issues viz does the noting of an appeal in terms of s 98(10) of the Act against an arbitral award suspend the decision being appealed against and does the doctrine of dirty hands apply in respect of arbitral awards.

I will deal first with the issue of dirty hands. Does the principle of dirty hands apply in a case where there is non-compliance with an arbitral award. I associate myself with the submissions made by Mrs Matsika that the doctrine of dirty hands was wrongly applied. The doctrine was designed to prevent wilful disobedience of court orders and open defiance of the law. See ANZ (Pvt) Ltd v The Minister of State for Information and Publicity and 2 Ors  2004 (1) ZLR (S)  538 (S) at 547A.  An arbitral award does not fall into any of the above categories. It does not constitute an order of court until it is registered in terms of s 98 of Act. See Kanengoni v Zimbabwe Spinners & Weaves (Pvt) Ltd 1995(2) ZLR 348(S) at 352 A-B. I will therefore dismiss the point in limine.

The issue of whether the noting of an appeal against an arbitral award in terms of s 98(10) suspends the operation of the decision appealed against has generated a lot of debate in our courts.  The debate arises from the fact that there are two sections in the Act which deal with appeals viz s 92(E) and s 98(10).

Section 92(E) provides:-

“Appeals to the Labour Court generally

An appeal in terms of this Act may address the merits of the determination or decision appealed against;

An appeal in terms of subs (1) shall not have the effect of suspending the determination or decision appealed against.

Pending the determination of the appeal the Labour Court may make such interim determination in the matter as the justice of the case requires”.

Section 98(10) provides:-

“An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section”.

I was persuaded by the arguments advanced by Mr Moyo. Section 92 (E)

deals with appeals filed in terms of the Act. It is a global and all inclusive provision which caters for all appeals filed with the Labour Court. Section 98(10) of the Act qualifies the content, form and substance of the appeal. It curtails the right of a party to file an appeal on the facts. It limits the appeal to points of law. The wording of s 98(10) of the Act is such that it does not excise it from s 92 (E) of the Act. Section 98(10) of the Act does not specifically deal with the effect of an appeal as that is covered by s 92 (E) of the Act. It must have been the intention of the legislature that s 92 (E)(2) of the Act also covers appeals under s 98(10) of the Act as they used the term “appeal” in terms of this Act and not an appeal in terms of this section or in terms of this part.

My view therefore is that s 92(E)(2) of the Act applies to appeals filed under s 98(10) of the Act. What this means is that an appeal filed under s 98(10) of the Act does not have the effect of suspending the decision appealed against. The common law position that an appeal suspends the judgment does not apply in this case as the issue is specifically provided for by statute. If a party does not wish to comply with an award then it has to seek recourse in terms of s 92(E)(3) of the Act.

Opposing Affidavit

It is common cause that Mr Mugandiwa, who deposed to the opposing affidavit once presided over a disciplinary hearing in a matter between the applicant and the respondent. He made an order adverse to the applicant. It is common cause that Mr Mugandiwa deposed to the opposition affidavit.

Our courts and those in South Africa have previously dealt with the undesirability of legal practitioners deposing to affidavits on behalf of clients. See Samkange v Samkange HH 63/93 Dr Ibo Mandaza t/a as Induna Development Projects v Mzilikazi Investments (Pvt) Ltd HB 23/07 and Hendricks v Davidoff 1955(2) SA 369. There are exceptions to this general rule and that even in those exceptional circumstances the route should be sparingly used. To the above I would add that the exceptional circumstances where the legal practitioner has to depose to an affidavit must be specifically pleaded in the affidavit.

In casu Mr Mugandiwa does not plead any special circumstances why he had to depose to the founding affidavit. Admittedly he was dealing with procedural issues but considering his previous dealings in the matter, he should have specifically stated why he had to depose to the affidavit. This is in view of the fact that in the past he has acted as part of the structure of the client by presiding over the tribunal. This taints his partiality in the matter unless he gives an explanation. However this is not fatal to the respondent’s case as he was dealing with procedure as opposed to factual issues in the opposing affidavit. I will therefore dismiss the point in limine.

I have already dealt with the point whether an appeal against an award filed with the Labour Court can suspend the award being appealed against. This was the respondent’s main basis for opposing the registration of the award. I made a finding that the appeal does not suspend the award.

In the result the applicant succeeds and I will make the following order:-

The Arbitral Award granted on 5 January 2010 is hereby registered as an order of the High Court.

The respondent shall pay the applicant’s costs.

Kantor & Immerman, applicant’s legal practitioners

Wintertons, respondent’s legal practitioners