Agrifoods (Pvt) LTD V Yowas Elias & 101 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/586/2016
HARARE, 25 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/586/2016

HARARE, 25 FEBRUARY 2016				       CASE NO. LC/H/86/15

AND 23 SEPTEMBER 2016

In the matter between:-

AGRIFOODS (PVT) LTD						Appellant

And

YOWAS ELIAS & 101 OTHERS					Respondents

Before Honourable R.F. Manyangadze, J

For Appellant		T Tandi (Legal Practitioner)

For Respondents		L S Ncube (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 18 December 2014, in terms of which an amendment was done to an earlier award handed down on 21 January 2011.

The brief facts of the matter are that National Employment Council Arbitrator M Mpango (arbitrator) issued an award on 21 January 2011, in which the parties were cited as;

“AGRIFOODS (PVT) LTD EMPLOYEES-Claimants

And

AGRIFOODS(PVT) LTD MANAGEMENT-Respondents”

On 18 December 2014, the arbitrator amended his initial award, by changing the citation of the respondent to AGRIFOODS (PVT) LTD. He removed reference to AGRIFOODS “MANAGEMENT”. This amendment was upon an application brought by the claimants, which application was opposed by the respondent. The resultant award, titled “PATENT AMENDMENT OF ARBITRAL AWARD”, is the subject of this appeal.

The grounds of appeal are stated as follows:

“1.	The Arbitrator erred in amending the Arbitral Award when his jurisdiction had lapsed.

2.	The Arbitrator erred in amending the Award in a legally impressible (sic) manner.

3. 	The Arbitrator erred and did not apply his mind in amending a nullity.”

The first issue the appellant raises is that the amendment was done outside the prescribed time limit. As a consequence, the arbitrator no longer had the jurisdiction to deal with the matter.

The Arbitration Act, [Chapter 7:15], stipulates a period of 30 days within which an arbitral award may be corrected. The applicable provision is found in the Model Law, Article 33 of the Schedule to the Arbitration Act. It reads as follows:

“(1)	Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties –

a party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature:

if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within thirty days of receipt of the request. The interpretation shall form part of the award.

(2)	The arbitral tribunal may correct any error of the type referred to in paragraph (1) (a) of this article on its own initiative within thirty days of the date of the award.”

A reading of the provisions shows that the prescribed period is 30 days from the date of receipt of the award. The party making the application for the correction of the award must do so within 30 days of the receipt of the award, “unless another period of time has been agreed upon by the parties.”

The respondents, in their heads of argument, clearly state that

“It is not in dispute that the award was amended out of time”

The respondents however, aver that they sought and were granted condonation by the arbitrator, to have the matter dealt with out of time. The respondents go on to aver that the arbitrator took into consideration all the essential factors that are considered when determining an application for condonation. The submissions by the respondents create the distinct impression that an application for condonation of late filing of application for amendment of the arbitral award was done, and was duly considered and granted by the arbitrator.

In countering the respondent’s submissions, the appellant averred that no condonation was ever sought or granted. The respondents did not point to any determination made by the arbitrator on condonation. There is no reference to condonation in the arbitral award, argued the appellant.

A look at the arbitral award in question, shows no ruling on an application for condonation. The award does not address this issue at all. The question then arises, did the arbitrator adjudicate on such an issue? What was his determination?

The court specifically asked counsel to clarify this issue. It is central to the question of whether or not the arbitrator should have heard the application for amendment of his award, long after the stipulated deadline.

This should be a simple factual enquiry - whether or not there was an application for condonation of the late application for amendment of the award. Whether or not the arbitrator adjudicated upon such application. Whether or not the adjudication resulted in a determination granting the condonation. It struck the court as unusual that a dispute arose as to whether or not that happened. This is the sort of information that should be well documented and easily available on record.

The court directed that counsel clarify the matter.  In particular, it wanted to ascertain whether the said application was sought and granted, as asserted by counsel for the respondents.  To that end, both counsel appeared before the court on 10 June 2016.  It was then that a document captioned “APPLICATION FOR CONDONATION FOR LATE NOTING OF A PATENT AMENDMENT OF RESPONDENT’S CITATION” was tendered.  It is dated 8 December 2014, and signed by one J. Denhere, the trade union official who was representing the respondents at the time.  It does not reflect whether or not it was served on the applicant, who was respondent in that application.

This is all that was produced as substantiation of the respondents’ assertion that an application for condonation was made.

The applicant drew the court’s attention to the fact that the matter of the application for amendment was argued in December 2013, not 2014.  Mr Tandi, for the applicant, averred that;

“We would want to bring the court’s attention to the dates …… The amendment was sought on 16 October 2013.  The matter was subsequently argued in December 2013, not 2014.  The arbitrator only handed down an award in December 2014 … It was not possible for an application for condonation to be made a year after the parties had argued the matter.” (emphasis added)

Mr Tandi further pointed out that the arbitrator’s amended award makes no reference at all to the application for condonation.  There is no ruling or determination on it.

The court was further referred to some correspondence on the issue, done in 2015.  After receipt of the respondents heads of argument, from their legal practitioners of record, the applicant’s legal practitioners responded in a letter dated 28 July 2015, as follows:

“We acknowledge receipt of your client’s Heads of Argument.

We dispute that an application for condonation was made or heard in the matter.

Accordingly may you kindly furnish us with a copy of the application for condonation you refer to in paragraph 4.  May you also let us have a copy (sic) Notice of Set down for the condonation hearing.

PLEASE TAKE NOTE THAT THIS LETTER SHALL BE USED AS EVIDENCE DURING THE APPEAL HEARING.”

The respondents’ attorneys responded in a letter dated 8 August 2015, as follows:

“We refer to the above matter.

Our client advises that an application for condonation was duly made.  The Honourable Arbitrator has this on record and as a matter of procedure, same will be tendered to the Labour Court for record preparation and for you to photocopy.

Be guided accordingly.”

The documentation the attorneys undertook to tender, i.e. the application for condonation, as part of the record preparation, was never tendered.  The record was compiled without such documentation.  The matter i.e. the appeal, was heard in February 2016, without the documents referred to.  A copy of the application was only tendered on 10 June 2016, after the court directed that there be further submissions to clarity this issue.

The sequence of events outlined seriously detracts from the credibility or authenticity of the document tendered.  It does not bear out the respondents’ assertion that an application for condonation was heard and granted by the arbitrator.  If the matter was argued in December 2013, a fact not disputed by the respondents, condonation could not have been sought post facto.

The facts simply point to a situation where no application for condonation was adjudicated upon by the arbitrator.

After the anomalies were highlighted, counsel for the respondents indicated that she had no comment, but still insisted that an application for condonation was made and granted.

All the averments made by the appellant, pointing out the anomalies, were not disputed by the respondent.  The inescapable conclusion is that the said application for condonation was not made.  If at all it was made, it was certainly not adjudicated upon and determined.  The peculiar facts of this matter create the disturbing impression that there was an attempt, post facto the hearing, to regularise the record by placing in it an application for condonation that was not  entertained at the material time.  Such an application, and its granting, ought to have preceded the hearing of the application for amendment of the arbitral award.  The amendment, as already indicated, was done more than three years after the original award, way beyond the stipulated 30 day period.  This, in my view, renders the subsequent arbitral award, amending the original award, a nullity.  On this basis alone, the appeal must succeed.

In the result, it is ordered that;

The appeal be and is hereby allowed.

The arbitral award granted on 18 December 2014, amending the arbitral award granted on 11 January 2011, be and is hereby set aside.

The respondents shall bear the appellant’s costs.

Kantor & Immerman, appellant’s legal practitioners

Thondhlanga & Associates, respondent’s legal practitioners

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