Econet Wireless (Private) Limited v Regina Tendayi

### Preamble
Judgment No. SC 32/20
Civil Appeal 1
No. SC 46/16
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REPORTABLE	(30)

ECONET     WIRELESS     (PRIVATE)     LIMITED

v

REGINA     TENDAYI

SUPREME COURT OF ZIMBABWE

GOWORA JA, HLATSHWAYO JA & GUVAVA JA.

HARARE: OCTOBER 10, 2016.

T. Sibanda, for the appellant

T. Mpofu, for the respondent

GOWORA JA:	After perusing papers filed of record and hearing counsel in this matter we dismissed the appeal with costs and intimated that our reasons would follow in due course. These are they.

FACTUAL BACKGROUND TO THE DISPUTE

The respondent was formerly employed by the appellant as Head Talent and Organizational Development. During the course of her employment as such, it was alleged that the Chief Human Resources Officer would shout at her and verbally abuse her in the presence of her subordinates. He was also alleged to have made various unspecified threats against her. In addition, it was alleged that he had also unilaterally altered her position to Head Talent and Development. This later development removed 50 percent of her job content. She sought redress through the office of the Group Human Resources Officer to no avail. The matter remained unresolved. Ultimately, she resigned from her contract of employment on 14 July 2014.

The matter proceeded to arbitration. The papers in terms of which the matter was referred to arbitration are not on record but it is common cause that the issue was whether or not the respondent had been constructively dismissed. Their absence is however not a bar to the resolution of the dispute. Nevertheless, it seems to me that the parties should at the very least have explained how the arbitration came about.

The arbitrator found that on the facts as presented by the parties the respondent had been constructively dismissed. An award in favour of the respondent was issued. However, in view of the terms of reference on which the matter had been referred to him which were solely dealing with the question of constructive dismissal, the arbitrator did not quantify the damages due to the respondent resulting from the constructive dismissal. Instead, he gave the parties the option to approach the arbitrator for such quantification if and when the need to do so arose.

The appellant noted an appeal with the Labour Court against the award. It also filed an application for interim relief in which it sought suspension of the legal effect of the arbitral award pending finalization of the appeal. In the same application an order was sought directing the arbitrator to suspend the quantification process.

In the meantime, as a consequence of the absence of an award sounding in monetary terms, the respondent approached the arbitrator seeking quantification of her damages in light of the findings of constructive dismissal made by the arbitrator.

Despite service of the application upon itself, the appellant did not respond to the application. Instead its legal practitioners addressed a series of letters to the arbitrator requesting him not to proceed with the quantification pending the determination of the appeal and the application for interim relief. The arbitrator declined the request and insisted on hearing the application. He called the parties to a hearing before him.

On the date of hearing the appellant represented by counsel raised points in limine. Firstly, it was contended that the arbitrator lacked jurisdiction to determine the application in the face of the pending application for interim relief which had been filed before the Labour Court and which sought an order specifically for the suspension of the quantification process.

In addition, it was also contended that the Labour Court itself having become aware of the application for interim relief had postponed the hearing of the appeal until the issue of the interim relief being sought by the appellant would have been determined. It was suggested that it would be only proper for the arbitrator to allow the jurisdiction of the Labour Court to be exhausted before hearing the application for the quantification of damages.

The respondent countered by pointing out that the application for interim relief was filed as an ordinary application which did not have attached to it a certificate of urgency. This attitude on the part of the appellant it was argued, was an indication of the lack of seriousness and the lack of faith that the appellant had in the process filed. As a consequence, the absence of the certificate of urgency had moved the Labour Court to set down the appeal and determine it without having first disposed of the application for interim relief.

The arbitrator agreed with the respondent and dismissed the points in limine. He then heard the application on the merits. Thereafter he rendered an award in favour of the respondent. Upon its receipt, the respondent made an application to the High Court for its registration. The application was opposed by the appellant. Notwithstanding the opposition from the appellant, the High Court granted the application and registered the award as an order of that court. This appeal is against the order of registration.

The grounds of appeal are set out in the notice as follows:

“1. The court a quo erred at law in finding that it was proper for the arbitrator to proceed with further proceedings notwithstanding the application for interim relief against him in terms of s 92 E (3) of the Labour Act [Chapter 28:01] wherein the arbitrator was a party thereto with a specific relief sought against him.

2. The court a quo erred at law in not finding that    upon a request being made for the recusal of the arbitrator in terms of s 7 (1) of the Labour (Arbitrator) Regulations, 2012 (“the regulations”) and upon remittal of the matter to the Principal Officer for appointment of a new arbitrator a quo had no jurisdiction to hear the matter.

3. The court a quo erred at law in upholding the arbitrator’s finding that a formal application for his recusal ought to have been filed, a finding that violated the express rights and remedies provided for in the said regulations.

4. A fortiori, the court a quo erred at law in not finding that the award was un-registrable, null and void and of no force or effect.”

However, it appears that the appellant is aggrieved by the refusal of the arbitrator to stay proceedings when approached by its legal practitioners to do so. Concomitant to this is the contention that the arbitrator should have recused himself once he was requested to do so and that his refusal to do so meant that he lacked the requisite jurisdiction to determine the application for quantification made by the respondent. Finally, the appellant contended that the award was premature on the basis of the pending appeal against the main award. In the event that the appeal against the main appeal succeeded then the award for damages would fall away. On this later point it was suggested that the registration of the award would render the right to be heard on appeal an academic exercise and was thus in contravention of established principles of law.  These appear to be the main points of contention in this dispute as viewed by the appellant.

It seems to me the main issue for determination pertains to the jurisdiction of the High Court when considering an application for the registration of an arbitral award and aligned to that the grounds upon which the High Court can refuse to register an arbitral award. In my view that ought to dispose of the appeal.

THE REFUSAL BY THE ARBITRATOR TO STAY PROCEEDINGS PENDING THE APPEAL TO THE LABOUR COURT

The learned judge in the court a quo understood the appellant to be challenging the registration of the award on the basis that the arbitrator lacked jurisdiction to proceed with the proceedings for quantification until such time as the Labour Court would have dealt with the appeal and the application for a stay of execution.

The High Court found that the award by the arbitrator to the effect that the respondent had been constructively dismissed was not an award sounding in money. As a consequence, an application for a stay of execution was not appropriate as this was relief aimed at stopping execution of an order sounding in money. As there was no such award sounding in money an order staying the award which found that the respondent had been constructively dismissed would have been an incompetent order.  The High Court concluded further that this was the reason why the Labour Court itself had dismissed the application for a stay of execution. It would seem that the dismissal of this application would also have meant that the application for an order against the arbitrator to suspend proceedings relating to quantification also suffered the same fate.

It was further argued that the award was made in clear flagrant violation of s 92E (3) of the Labour Act [Chapter 28:01]. The section reads in relevant part:

92E Appeals to the Labour Court generally

(1) An appeal in terms of this Act may address the merits of the determination or decision

appealed against.

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

(3) Pending the determination of an appeal the Labour Court may make such interim

determination in the matter as the justice of the case requires.

Dealing with the first ground of appeal as premised on s 92E (3) above, it is clear that the appellant has a misapprehension of the construction of the section.  The law clearly provides that an appeal to the Labour Court does not suspend the decision or determination appealed against. It also permits the grant of interim relief. The relief provided under s 92E relates to a decision, specifically an award or order which gives relief that a litigant can execute against. This would also affect an award sounding in money. It is common cause that the award in respect of which the appellant sought to be stayed did not sound in money.

Subsection (3) does not provide that an application for interim relief stays any proceedings pending the determination of the appeal. The respondent had, as she was entitled to, approached the arbitrator to quantify her damages following a ruling that she had been constructively dismissed. The arbitrator was seized with the matter and he was duty bound and obliged to determine it. He could not refuse to deal with the matter without lawful cause. A request by one of the litigants imploring him to stop the process is not legal cause for him to do so.

The Constitution, in terms of s 69 (2), provides that every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law in the determination of his or her civil rights and obligations. In turn, ss (3) thereof provides that every person shall have the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.

A request to the arbitrator, in the absence of a court order directing such, to stay proceedings for the quantification of the award would have been contrary to the provisions of s 69 and therefore a contravention of the Constitution. As correctly stated by the arbitrator he was obliged to hear the application filed by the respondent unless an order had been obtained stopping him from so proceeding. There was no such order.

Without a doubt the High Court was correct in its approach on this aspect of the dispute.

WHETHER THE ARBITRATOR COULD LEGALLY REFUSE TO RECUSE HIMSELF FROM THE QUANTIFICATION PROCESS IN THE ABSENCE OF A FORMAL APPLICATION

The appellant was aggrieved by the finding of the court a quo that a formal application for recusal of the arbitrator should have been made.

In seeking to oppose the registration of the award by the High Court, the appellant averred in its opposing affidavit that the award should not be registered as it was null and void by virtue of the provisions of s 7 of the Arbitrators Regulations 2012, S.I. 173/12 which require that a party be afforded a right to be heard before a fair and impartial judicial officer in conformity with the rules of Natural Justice. It was alleged that this was not done in this instance.

The next issue relates to that of the recusal of the arbitrator from the quantification process upon the written request of the appellant’s legal practitioners. The High Court concluded that the approach by the arbitrator to the informal request was sound. The court found that the consent of the respondent to the request having been withheld, it was incumbent upon the appellant to lodge a formal application as directed by the arbitrator.

When the respondent filed an application with the arbitrator for quantification of her award, the appellant chose not to respond. Instead, its legal practitioners once they became aware that the arbitrator was arranging for the set down of the application engaged in correspondence with the latter. The letters, which formed the basis of the determination by the court a quo were in the following vein:

“We are instructed to object to the set down of the matter before you as to do so would overtly violate the Labour Court’s jurisdiction which is now seized with the application for interim relief of the appeal itself.

As appears from the draft order for interim relief our client prays for an order that the 2nd respondent (the Honourable Arbitrator) suspend any further proceedings ancillary to the award as to proceed otherwise would breach the due process of proceedings in the Labour Court and unduly prejudice our client.”

The arbitrator responded to the request not to set down the matter. He pointed out, correctly in my view, that there was nothing in terms of the law that prohibited the quantification process. He further pointed out that the matter would have been different if the appellant had obtained an order stopping the quantification process from proceeding. He ended by saying that he had no choice but to proceed to set the matter down.

The matter was set down and at the hearing the appellant through is legal practitioners raised a point in limine challenging the jurisdiction of the arbitrator to hear the application before the Labour Court had determined the application for stay of execution and appeal on the merits against the main award. The arbitrator dismissed the interlocutory application and set a date for the hearing of the claim for quantification of damages.

I turn to consider the reliance by the appellant on s 7 of the Labour (Arbitrators) Regulations 2012, S.I. 173/12, “the Regulations” in buttressing the contention that the arbitrator was disabled from quantifying the award subsequent to a request for his recusal. Section 7 provides:

Code of Ethics

7.(1) 	It shall be the duty of every arbitrator to act in such manner as to ensure that all significant aspects of arbitration are treated by the arbitrator as confidential unless this requirement is waived by both parties;

impartiality and principles of natural justice are observed at all times;

he or she shall disclose to the parties or the conciliator any current or past managerialrepresentational, or consultative relationship with any employer or employers’ organisation, trade union or a federation that is involved in the dispute at hand:

Provided that if any of the parties to the dispute or the conciliator request the arbitrator to recuse himself or herself, he or she shall do so;

no decision-making function is delegated to another person, without the consent of the parties;

Apart from making reference to s 7 quoted above, the appellant has not indicated which conduct on the part of the arbitrator fell foul of the section justifying a request for his recusal. Sight was also lost of the fact that the section is concerned with the code of ethics by which arbitrators are bound to conduct themselves and that in terms of that code there was a duty of disclosure placed upon them to reveal any relationship with any of the parties that may tend to undermine an arbitrator’s impartiality. It is not suggested that the learned arbitrator had a prior relationship with the respondent which would have imposed upon him the duty to disclose such relationship as required by the Code of Ethics. Regrettably, the appellant has not alleged any breach by the arbitrator of the duties spelt out in s 7 justifying a request for recusal.

The appellant was not content to leave the matter as decided by the arbitrator. Through its legal practitioners it addressed a letter to the arbitrator requesting that he recuses himself from the proceedings. He responded by suggesting that an application for his recusal should be filed. A similar request was made to the Principal Labour Officer. The appellant did not file a formal application for the recusal of the arbitrator.

The court a quo found that the appellant should have made a formal application to the arbitrator for his recusal. It concluded that there must always be valid reasons for a party to request for the recusal of an arbitrator and further that the regulations upon which the appellant sought reliance for such a request clearly spelt out the grounds upon which such recusal should be premised.

The court a quo found that the grounds for recusal are issues for argument meaning that a formal application was necessary.

The appellant submitted that the court a quo erred in concluding that a formal application for recusal should have been made. It is suggested that such a finding is a violation of the express rights and remedies provided for in the regulations. It was contended that the legislature was fully aware of the distinction between an application and a request and had chosen to make a recusal mandatory upon request. In this vein, counsel suggested that a request did not need to be accompanied by an affidavit and for this proposition he urged the court to have regard to the Magistrates Court Civil Rules, 1980 as authority, specifically r 2 and 3 which he said provided for a request for a default judgment.

As a result, the court a quo erred in upholding the arbitrator’s mistaken conceptions that there was need for a formal application before him for his recusal.

It seems that the parties to this dispute overlooked the law in relation to how a challenge to an arbitrator may be approached.

My remarks above should not be understood to imply that parties to an arbitration process are not entitled to challenge the arbitrator’s participation in such process. The law provides for such challenge. Although the arbitration process in this dispute came about by reference under the Labour Act [Chapter 28:01], it is common cause that the arbitration process itself must be compliant with the Model Law as contained in the Arbitration Act [Chapter 7:15]. It is beyond dispute that the Model Law applies to all arbitration processes irrespective of their genesis. Section 3 of the Arbitration Act provides:

“3 Law applicable to arbitrations

(1) Subject to sections four and five, where the place of an arbitration is in Zimbabwe, this Act and the Model Law, as modified by this Act, shall apply to the arbitration.

(2) Subject to sections four and five, where the place of an arbitration is not in Zimbabwe, articles 8, 9, 35 and 36 of the Model Law, as modified by this Act, shall apply to the arbitration.”

The arbitration process which is the subject of this appeal arose as a result of an award issued in favour of the respondent following allegations of unfair labour practices as defined under the Labour Act [Chapter 28:01]. Without a doubt such arbitration process must be conducted in accordance with the Model Law. Authority for this is found in s 5 of the Arbitration Act, which section provides that:

“5 Application of Act to arbitration under other enactments

(1) Subject to subsection (2), where an enactment requires any matter to be determined by an arbitrator or by arbitration in accordance with any law relating to arbitration, such requirement shall be deemed to be an arbitration agreement for the purposes of this Act.

(2) Where an enactment provides for the determination of any matter by arbitration, the provisions of that enactment, to the extent that they are inconsistent with this Act, shall prevail.

The learned arbitrator had directed that a formal application for his recusal should be made. This was based on the reading by the arbitrator of s 7 of the Regulations governing the conduct of arbitrators. I am not sure whether the arbitrator himself was aware of the provisions of the Arbitration Act and the procedures set out in the Model Law for a challenge such as the one contemplated by the appellant’s legal practitioner.

The appellant argues that in accordance with s 7 of the Arbitrators Regulations there existed a peremptory requirement for mandatory recusal which the arbitrator failed to comply with. The High Court should therefore have arrested the illegal act of the arbitrator and refused to endorse that which had been done in defiance of express statutory provisions.

The grounds upon which an arbitrator may be challenged and the procedure to do so are set out in Articles 12, 13 and 34(2) of the Model Law which is contained in the Arbitration Act [Chapter 7:15]. Articles 12 and 13 are set out hereunder and read:

ARTICLE 12

Grounds for challenge

(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.

(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

ARTICLE 13

Challenge procedure

(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in article 12 (2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the High Court to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.

There is no suggestion on the part of the appellant that the Model Law was not applicable to the arbitration proceedings that the parties were engaged in. It follows therefore that in the event that the appellant considered that the arbitrator was conflicted as is alleged the challenge to his participating as an arbitrator lay squarely under Article 12(2), as that provides for the grounds of challenge where the impartiality of an arbitrator is an issue. That this is the correct manner of approaching the issue has been decided within this jurisdiction and there is authority to that effect. In Musonzoa (Pvt) Ltd v Standard Fire & General Insurance Co (Pvt) Ltd & Anor 2002(1) ZLR 535(H), CHINHENGO J had to consider the import of Articles 12, 13 and 34 of the Model Law. At p 541E-542B the learned judge stated:

“The following are some of the propositions which emerge from the above provisions of the Model Law:

the challenge to an arbitrator in respect of his impartiality is made in terms of Articles 12 and 13 of the Model Law. It can also be made in terms of Article 34(2) as read with Article 34(5) of the Model Law if, as I shall show later, the grounds upon which a challenge could have been made emerge after an award has been handed down;

any such challenge may be made if circumstances exist that gives rise to justifiable doubts as to the impartiality of the arbitrator;

it is mandatory for the arbitrator to disclose to the parties any circumstances which give rise to justifiable doubts as to his impartiality;

the challenge, if made in terms of Article 13, must be filed in writing within fifteen days from the date after the challenging party becomes aware of the existence of the circumstances specified in (2) above;

short of the arbitrator resigning his office upon being challenged or the other party acquiescing to the challenge, it is mandatory  for the arbitrator to decide on the challenge;

if the arbitrator decides against the challenge, the challenging party may, within thirty days of receiving the decision, request the High Court to decide on the challenge; and

no appeal shall lie against the decision of the High Court on the challenge.

That this is in fact the settled position has been set out in various decisions of this Court. In EBI Zimbabwe (Pvt) Ltd v Old Mutual Unit Trusts (Pvt) Ltd & Anor 2009(1) ZLR 356(H), PATEL J (as he then was) confirmed that the challenge to an arbitrator on the grounds of perceived lack of impartiality on his part lay squarely within the provisions of Articles 12 and 13 of the Model Law. At p 360B-C, the learned jurist stated:

“I fully concur with the stance taken by Mr Zhou. In terms of art 13(2) as read with art 12(2), the challenging party must raise his challenge within 15 days after becoming aware of any circumstance that gives rise to justifiable doubts as to the arbitrator’s impartiality or independence.”

It may seem that the learned judge was discussing the question of the time frame in which a challenge may be mounted. That is correct but the clear position from that statement is that the challenge must be mounted in terms of the two articles and the procedures set out therein must be adhered to.

In this case the appellant wanted to challenge the arbitrator on the perceived bias in favour of the respondent. The procedure underlined in Article 13 should then have been followed. The appellant did not proceed in terms of the law. The High Court, albeit, by a different route, was correct in finding that the failure to mount a formal challenge for the recusal of the arbitrator was fatal to the appellant’s case. It therefore stands to reason that the arbitrator was fully imbued with the jurisdiction to conduct the quantification process. The opposition to the registration of the award on this premise was therefore ill advised. There were no legal grounds for challenging his jurisdiction.

It is suggested by the appellant that there was a remittal of the matter to the Principal Labour Officer for the appointment of a new arbitrator in place of Mambara. There was no such remittal. The appellant requested for the appointment of a new arbitrator following the “recusal of Hon. J MAMBARA in terms of s 7 of the Labour (Arbitrators) Regulations 2012. There was no recusal.

In any event, in the event that there was such a complaint, the procedure to be followed is that outlined in Article 13, which was not adhered to.

As a consequence, the second and third grounds of appeal are premised on an incorrect application of the law to the facts of the dispute. The contention therefore that the learned arbitrator had no jurisdiction, based on the above premise is clearly erroneous.

WHETHER THE AWARD IS NULL AND VOID AND NOT REGISTRABLE

The last issue as contended by the appellant is that the award is null and void and not registrable. In this regard it is suggested that by refusing to recuse himself after a written request the arbitrator had proceeded to issue a decision in contravention of the law. It is suggested that there was nothing that could validate the jurisdiction of the arbitrator. He had become functus officio and could not be allowed to venture into further proceedings and issue an award and that by extension, the High Court had no mandate to recognize the act of illegality perpetrated by the arbitrator and purport to register it for purposes of its enforcement.

Thus, the High Court gave effect to a nullity and the court a quo ought to have realized that the arbitrator had dealt with the matter with self-imposed jurisdiction and it should have vacated the arbitral award. The High Court was therefore supposed to have pronounced the award as an illegality unsuitable for registration. It follows therefore, so the argument goes, that the award is not registrable by virtue of being null and void.

I have in discussing the second and third grounds of appeal set out why there was no proper challenge to the arbitrator’s jurisdiction and why opposition to the registration of the award on those grounds should fail. It is not necessary therefore to consider those issues under the last ground. It only remains for me to discuss what the law allows by way of a challenge to the registration of an arbitral award.

The ambit of the High Court to refuse registration of an arbitration award has been succinctly set out in Article 36 of the Model Law. It reads:

ARTICLE 36

Grounds for refusing recognition or enforcement

(1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may

be refused only—

(a) at the request of the party against whom it is invoked, if that party furnishes to the court where

recognition or enforcement is sought proof that—

(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(ii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or

(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or

(b) if the court finds that—

the subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or

the recognition or enforcement of the award would be contrary to the public policy of Zimbabwe.

(2) If an application for setting aside or suspension of an award has been made to a court referred to in paragraph

(1) (a) (v) of this article, the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.

(3) For the avoidance of doubt and without limiting the generality of paragraph (1) (b) (ii) of this article, it is declared that the recognition or enforcement of an award would be contrary to the public policy of Zimbabwe if—

(a) the making of the award was induced or effected by fraud or corruption; or

(b) a breach of the rules of natural justice occurred in connection with the making of the award.

There exists within this jurisdiction a plethora of authorities on how courts should construe the provision and apply it to matters in dispute before the courts. It has been construed to mean that a court’s jurisdiction to refuse registration of an award is confined to circumstances where the award is in conflict with the public policy of the country. The onus to prove that the award is contrary to public policy is on he who challenges its registration.

A perusal of the judgment of the High Court will show that this is not the premise upon which the matter was argued. The question of whether or not the award would be contrary to public policy was linked to the alleged failure on the part of the arbitrator to refuse to step aside upon request.

Further to the above, it was argued that the award was unlawful as it was made “contrary to rules of law.” It was suggested that the award was made contrary to the provisions of Article 28 of the Arbitration Act [Chapter 7:15], the Model Law. Article 28 reads as follows:

Rules applicable to substance of dispute

(1) The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules.

(2) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.

(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so.

(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of any contract and shall take into account any usages of any trade applicable to the transaction.

There is no attempt to explain how article 28 applies to this particular dispute.

I set it out in full as an illustration of the complete lack of effort and industry displayed by the legal practitioner acting for the appellant in this dispute. In all other respects there was no challenge to the registration of the award on the grounds set out in the Model Law. In the absence of such a properly mounted challenge, the onus of which was upon the appellant to establish that the award was contrary to the public policy of the country, the High Court was obliged to register it. And so it was registered as an order of court.

That in my view disposes of the appeal.

DISPOSITION

Judging from the spirited actions of the appellant in pursuing this matter right up to appeal stage, it leaps to mind that the appellant was intent on challenging the claims by the respondent right up to the last opportunity available. And it did. Sadly it was not well served by the legal practitioner it engaged to litigate on its behalf.

A perusal of the record would lead the reader to the logical conclusion that the legal practitioner acting on behalf of the appellant displayed incredible ignorance of the law. I say this for the following reason.

Apart from reference to s 92E of the Labour Act it does not appear that the said legal practitioner made reference to any law. He made no attempt to peruse the Arbitration Act and ascertain whether or not it applied to the dispute. The provisions of s 7 of the Arbitrators Regulations were not properly applied to the disputes. Even the reliance on article 28 appears not to have been thought through as is evidenced by the lack of submission on its applicability. The challenge to the arbitrator was not done on any legal premise. Even before the High Court there was no reference to the law in seeking to challenge the registration of the award. Whatever efforts were put in before the arbitrator, the High Court and this Court were most unhelpful.

An unfortunate practice has developed where a few legal practitioners plying their trade in our courts fail to do due diligence to their clients cause. It has become common place of late for legal practitioners to do as little as possible, either by way of pleadings or arguments in the prosecution of their client’s cases. They then throw their failures at the mercy of the court. It is not uncommon to hear legal practitioner pleading that they are in the hands of the court. The court has no hands.

It is not the business of the court to panel beat a position or a case on behalf of a litigant. A litigant bears an onus to establish his case and it is the duty of that litigant’s legal practitioner to establish his client’s case. That this is the law was stated clearly by ZIYAMBI JA in Delta Beverages (Pvt) Ltd v Murandu SC 38/15, wherein she said the following:

“Parties are expected to argue their case so as to persuade the court to see merit, if any, in the arguments advanced for them. They are not expected to make bald unsubstantiated averments and leave it to the court to make of them what it can.”

In this case the appellant failed to mount a proper challenge to the arbitration process. It did not oppose the substance of the quantification and the arbitrator only had the respondent’s case before him. It failed to properly challenge the arbitrator’s participation in the quantification process, whether before the arbitrator or after the award was issued. In short the law was completely ignored.

In this case, the failure to prosecute goes beyond mere failure to prove unsubstantiated submissions. It goes to the very root of the manner of approach to the dispute. The legal practitioner failed to identify the issues and thereafter to apply the correct law or set principles. It seems to me that the appellant has been rendered a victim through sheer incompetence on the part of its legal practitioner.

The appeal is completely devoid of merit and it was for the above reasons that we dismissed it with costs.

HLATSHWAYO JA:		I agree

GUVAVA JA:			I agree

Chinawa Law Chambers, appellant’s legal practitioners

C. Kuhuni Attorneys, respondent’s legal practitioners