Ellephant College v Victor Chiyangwa & Shelton Muchadziya

### Preamble
Judgment No. SC 77/20
1
Civil Appeal No. SC 436/19
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DISTRIBUTABLE		(68)

ELLEPHANT     COLLEGE

vs

VICTOR     CHIYANGWA    (2)    SHELTON     MUCHADZIYA

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MAKARAU JA & MAVANGIRA JA

HARARE:  MARCH 3 & JUNE 15 2020

T G Mboko for appellant

F Murisi for respondents

MAKARAU JA: 	This is an appeal against the whole judgment of the High Court handed down on 12 July 2019, dismissing with costs, an application by the appellant for a declaratory order.

BACKGROUND FACTS

The respondents were former employees of the appellant. Following allegations of unfair labour practices, they, in 2014, obtained arbitral awards against the appellant. This was in default of the appellant filing its heads of argument.

In 2018, the respondents registered the awards at the magistrates court for the purposes of execution. This was once again in default of appearance by the appellant.

The messenger of court duly attached the goods of the appellant to satisfy a writ taken out by the first respondent. The record does not indicate whether there was a similar attachment by the second respondent. The difference in the circumstances of the respondents in this regard is not material in the determination of this appeal.

The appellant applied to have the default judgment against it set aside. It was unsuccessful. It noted an appeal against the decision denying it rescission, withdrawing the appeal at some later stage but before the determination of the application a quo.

In an effort to permanently stall or defeat the sale in execution of its attached property, the appellant filed a court application in the court a quo on 26 October 2018, seeking a declaratory order.

PROCEEDINGS A QUO

In the application a quo, the appellant sought an order in the following terms:

“1.	The Prescription Act is applicable to arbitral awards conducted in terms of the

Labour Act.

2.	Award cannot be registered and executed after 3 years from the date it was issued.

3.	The respondents to pay costs of suit.”

Although this is not apparent from the wording of the draft order, in essence, the appellant, as indicated above, was seeking a declaratory order to the effect that an arbitral award prescribes after three years from the date of issue.

The application was opposed.

In the main, the respondents argued that the application for a declaratory order was improperly before the court. In particular, first respondent contended that the appellant’s relief lay in successfully appealing against the refusal of rescission of the default judgment against it or in having that judgment reviewed. In the alternative, and against the main thrust of the appellant’ contentions, the respondents argued that an arbitral award is a judgment debt which in terms of the Prescription Act, [Chapter 8.11], prescribes after thirty years.

As indicated above, the court a quo dismissed the application with an appropriate order of costs. It did so on two distinct bases. Firstly, it found that the appellant no longer had any rights to the attached property, having been divested of such rights by the process of attachment. It also found, separately, that an arbitral award is not a debt in terms of the Prescription Act, but is akin to a verdict. It is this second finding that prompted the appellant to note this appeal in which the main thrust of the appeal is an attack on that finding.

THE ISSUES

The first issue that arose before the court a quo and remains an issue for determination in this appeal is whether the application for a declaratory order was properly brought in the circumstances of this matter. If the application was properly brought, then the other issues relating to the correctness or otherwise of the substantive findings by the court a quo would arise.

It is my view that this appeal turns on the determination of the first issue.

ANALYSIS

The judgment a quo did not determine the first issue in clear terms. It did not specifically determine whether the application was properly before it. As indicated above, it found that the appellant no longer had any interests in the attached property and having failed to sustain one of the key requirements for the issuance of a declaratory order in its favour, its application could not succeed.

In ruling thus, the court a quo appears to have overlooked the need to firstly and specifically determine whether the application for a declaratur was properly before it. The court  a quo should have inquired into whether the application for a declaratur could be validly filed in the circumstances of this case where there was an extant default judgment registering the arbitral awards before proceeding to determine as it did, whether this was a proper case in which to exercise its discretion.

It is a trite position at law and one that was common cause before the court a quo that the High Court is empowered by s 14 of the High Court Act [Chapter 7.06], in its discretion, to inquire into and determine any existing, future or contingent right or obligation, notwithstanding that the person approaching it cannot claim any relief consequential upon such determination.

The court a quo correctly set out the factors to be taken into account before the court may exercise its discretion to grant a declaratory order. In doing so, the court a quo sought reliance from the case of Durban City Council v Association of Building Societies 1942 AD 27 and the legal text Herbstein & van Winsen: Civil Practice of the High Courts in South Africa, 5th Ed. The court a quo could have also obtained the same guidance from the local case of Johnsen v AFC 1995 (1) ZLR 65 (S)) where the same factors were stated by GUBBAY CJ as follows:

“The condition precedent to the grant of a declaratory order under s 14 of the High Court of Zimbabwe Act 1981, is that the applicant must be an “interested person”, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing, future or contingent right.”

Whilst the position regarding when the high Court may grant a declaratur is settled, it however presents itself quite clearly to me that in exercising the discretion granted to it by s 14 of the High Court Act, that court may not determine a right or obligation that has already been determined by another competent court. In other words, it cannot issue a declaratory order in respect of a right or obligation which has been defined and given content to by an extant judgment.

A number of settled legal principles and broad considerations the discussion of which is not necessary for this judgment, combine to forbid a court from revisiting a dispute that has already been resolved. These include the principles of issue estoppel and res judicata, quite apart from the broad considerations that emphasise the need to see finality in litigation.

Thus, the general position of the law is that, following the passing of a judgment in the dispute between the parties, proceedings filed thereafter by the same parties over the same dispute other than as a review or appeal, are incompetent to the extent that they do not seek to set aside or correct the extant judgment.

Turning to the facts of this matter, it is not in dispute that the rights and obligations of the parties were defined and given content to by the default judgment that registered the arbitral awards. By registering the awards, the magistrates court by implication, ruled (rightly or wrongly), that the arbitral awards had not prescribed and were capable of registration.

It is not disputable that a default judgment, unless rescinded, defines the rights and obligations of the parties to the subject matter to which it relates. Unless rescinded, it remains binding inter partes and gives rise to the principles of issue estoppel and res judicata that I have referred to above.

Whilst the default judgment of 2014 registering the awards was still extant, the appellant could not validly bring the application for a declaratory order as it did. The rights and obligations forming the subject matter of the declaratory order had already been determined against it albeit, by implication.

Quite clearly, the appellant was of the view that the magistrates court erred in registering the awards three years after the date of issue. It initially took the correct legal route to correct matters by applying to have the erroneous default judgment rescinded and being unsuccessful, appealing against the judgement denying it rescission. By abandoning the appeal against the refusal of rescission, the appellant may have shot itself in the foot as the appeal process was one of the avenues available to the appellant to correct what it perceived to be an erroneous decision, the other avenue being a review of the proceedings.

It is therefore my finding that after the magistrates court had registered the awards, it was not competent for the appellant to approach the High Court for an order declaring the same rights that had been determined and defined in the default judgment registering the awards. Any such approach was invalid. Put differently, in the circumstances of this matter, the appellant could not avoid the default judgment against it by filing an application for a declaratory order as it did. The extant magistrates court decision which defined and gave content to the rights of the parties to the dispute, robbed the High Court of any discretion in the matter at first instance.

In view of the finding that I make above, it is not necessary that I determine whether an arbitral award made under the provisions of the Labour Act [Chapter 28.01], prescribes after three years. That debate will have to wait for an appropriate case. The remarks made on the issue by the court a quo, after it had found that it could not exercise its discretion in favour of the appellant in the matter, were unnecessary and must be construed accordingly.

DISPOSITION

There is no reason why costs of this appeal should not follow the cause.

In the result, I make the following order:

The appeal is dismissed with costs.

GWAUNZA DCJ		:		I agree

MAVANGIRA JA		:		 I agree

Mboko T G Legal Practitioners, appellant’s legal practitioners

Murisi and Associates, respondents’ legal practitioners