Metropolitan Bank Ltd v Rumbidzayi Musiyiwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/760/16
HELD AT HARARE 19 SEPTEMBER 2016
CASE NO
JUDGMENT NO LC/H/760/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/760/16

HELD AT HARARE 19 SEPTEMBER 2016		CASE NO LC/H/REV/39/16

& 2 DECEMBER 2016

In the matter between:

METROPOLITAN BANK LTD				Applicant

And

RUMBIDZAYI MUSIYIWA					Respondent

Before The Honourable Maxwell, J

For Applicant		Mrs R Mabwe (Legal Practitioner)

For Respondent		Ms L Shambamuto (Legal Practitioner)

MAXWELL J:

At the hearing of this matter respondent raised points in limine which are the subject of this judgment.

Applicant applied for the review of arbitral proceedings whose award was issued on 15 April 2016.  In the application for review applicant complains that an oral hearing was conducted in its absence.  Applicant avers that the arbitrator failed to appreciate that the negotiations that had ensued between the parties had effectively altered the manner in which the proceedings were to be held.  Applicant also avers that the arbitrator failed to appreciate that when parties agree, the oral hearing is a mandatory procedure which cannot be held in the absence of one party and that such exclusion renders the proceedings irregular.  In its view, the oral hearing was held in contravention of Article 24 (1) of the Arbitrator Act [Chapter 7:15]

Respondent objected to the non-joinder of the arbitrator who made the decision.  She stated that the non-citation of the decision maker in the review proceedings is fatal as he has a right to be heard in this matter.  Respondent also pointed out that the application is improperly before the court as the award which the applicant seeks to be reviewed was granted in default.  Respondent further pointed out that the proper course for the applicant if it was aggrieved by the award was to file an application for rescission of default judgment before the honourable arbitrator a quo.  On the merits respondent averred that the arbitrator had neither erred nor misdirected himself at law as alleged.

On the first objection respondent states that the decision maker has the right to be heard.  No authority has been cited that states that an arbitrator must be heard before this court.  Whilst it is true that the decision maker must be cited in an application for review, I am of the view that the non-citation is not fatal.   It is a practice generally accepted that an adjudicator cannot be seem to defend his decision for to do so would be to show an interest in a matter in which his impartiality is of paramount importance.  As a practice before this court arbitrators do not file any pleadings even where they are cited and served with court process.  I therefore find no merit in the first objection.

On the second objection, there is merit in the respondent’s contention that the application is improperly before the court.  Applicant is seeking an order setting aside the arbitral award and an order for a rehearing before a different arbitrator.  The award clearly states in the opening statement “… and the respondent, Met Bank Ltd, was in wilful default.”  (Underlining for emphasis)   Applicant is seeking the setting aside of an award issued in default.  A default judgment can only be set aside by a successful application for rescission of the judgment under the relevant rules.  See Zvinavashe v Ndlovu SC 40/06.   Respondent’s contention that applicant utilised the wrong procedure in the circumstances is therefore correct.

In any event the Supreme Court expressed the view that where a person deliberately absents himself  without leave from a hearing, he has waived his right to challenge the proceedings.  See David Moyo v Rural Electrification Agency SC 4/14.  The grounds for review confirm applicant’s Absence at the arbitral proceedings.  They show disgruntlement at the arbitrator’s decision to proceed in applicant’s absence.  There is merit in the second preliminary point and I uphold it.  The effect of that decision is to dispose of the matter for being improperly before the court.    Accordingly the following order is appropriate.

The application for review be and is hereby struck of the roll with costs.

Manase & Manase, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners