C. Muchenje and 15 Others v Stuttafords Removals (Pvt) Ltd

### Preamble
1
HH 374-13
HC 4242/13
C. MUCHENJE
and
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==============================

C. MUCHENJE
and
TAPERA MADUNUZA
and
J. JECHE
and
A. MABWEDZA
and
T. CHIGADA
and
LOCKSANA MUCHAENGANA
and
BIGMAN CHIVAKA
and
M.TYANAI
and
FRADDY TAMBALIKA
and
C. CHATEYA
and
PHINIAS MARIMA
and
PRINCE TODDY PAMIRE
and
INNOCENT KARAGA
and
CLEMENCE CHIBANDA
and
COLLEN CHIGODORA
versus
STUTTAFORDS REMOVALS (PVT) LTD

HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, October 16, 2013

Opposed application

Ms P Kashiri for applicants
Mr B Diza, for the Respondent

TSANGA J: This is a case in which the sixteen Applicants seek to register a quantified arbitral award collectively amounting to US$26 352.00 for unlawful retrenchment by the Respondent. The registration of the quantified award through a chamber application was challenged by the Respondent who raised issues in limine on grounds that I will elaborate fully below. The genesis of the dispute is one that in the context of economic challenges, has increasingly come to sound like a stuck record. The employees received letters of termination from the Respondent, the employer, which cited “the hardships being faced”. Respondent purported to terminate their employment on conditions which included three months’ salary in lieu of notice.

The Applicants challenged the termination as unlawful in a matter which was referred to arbitration by the Labour Officer under a certificate of no settlement. Failure to settle was as a result of the Respondent not attending two meetings called by the Labour Officer. The Respondent challenged through correspondence, the jurisdiction of the Labour Officer in the matter. The essence of the Respondent’s objection, also repeated to the Arbitrator, was that the applicants had not exhausted internal procedures in terms of the Collective Bargaining Agreement of the Transport Operating Industry’s Code of Conduct Statutory Instrument 67 of 2012.

The Respondent averred lack of jurisdiction to hear the matter but did however attend the Arbitrator’s hearing.

On the point of lack of jurisdiction, the Arbitrator, Mr Madhuku’s finding was that Respondent’s assertion was bad at law as Codes of Conduct apply in matters of misconduct. In the case before him, the issue was not one of misconduct but whether or not there had been unlawful retrenchment. He found that the retrenchment was indeed unlawful as the employer had not followed the requisite procedures. Because he had not done so, the purported retrenchments were unlawful. In light of hardships on employers, the Arbitrator concluded that reinstatement was not a remedy in this case and neither would an award of damages beyond six months. He accordingly made the following award on 14 March 2013, which reads in the operative part as follows: a) That each of the sixteen employees be paid as damages, an amount equivalent to six months’ salary and benefits.

b) That each party (claimants as one) pays 50% of the costs of arbitration.

Following the this determination, the Applicants’ legal practitioners proceeded on the 24th of May 2013, to calculate what was due to each applicant on the basis of six months and came up with concise figures as to how much was due and payable to each in liquid terms.


They sent to the Arbitrator and addressed to the employer, a document entitled ‘Application for Quantification’ detailing how much each was to be paid.

The Arbitrator endorsed, signed and dated the quantified document in his own handwriting on 27 May in the following terms:

“Approved as a correct quantification of the award granted by me on 14 March 2013.” The document is duly stamped with his official stamp.

Applicants thereafter made a Chamber Application for its registration in terms of s 98 (14). Respondent filed an opposing affidavit to the registration of this quantified award. The matter became an opposed application.

The Respondent has raised two issues in limine upon which it has argued that the application should be dismissed with costs. It also argued that despite raising these issues, the Applicant had failed to address them. The first issue in limine is that Arbitration Act [Cap 7:15] makes no provision for the kind of ‘application’ which was filed by the applicants with the Arbitrator - that is the so called “Application for quantification”.

Respondent relies on article 33 of the Arbitration Act which states partly as follows:

**Article 33**

**Corrections and interpretation of awards; additional award**

1) “Within thirty days of receipt of award, unless another period of time has been agreed upon by the parties--a) 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 a similar nature;
   b) If so agreed by the parties a party with notice to the other, may request the Tribunal to give an interpretation of a specific point or part of the award.

If the arbitral tribunal considers the request justified, it shall make correction or give interpretation within 30 days of receipt of request. The interpretation shall form part of the award.”

On the basis of the above, the Respondent submits that all the Arbitration Act allows for in article 33 (1) once the matter has been heard, is the that within 30 days of the award a party upon notice to the other may request the arbitral tribunal to correct the ward and any errors in computation, any typographical errors or any errors of a similar nature. Respondent further put forward the argument that application was also out of time as 30 days had elapsed since the handing down of the award before the application was submitted. The purported ‘Application for Quantification’ was made 40 days after the hearing. In arguing that the application falls out of bounds they relied on *Conforce (PVT) Ltd v City of Harare 2000 (1) ZLR 445 (H)*

In examining the above provisions in light of what the Applicants put before the Arbitrator, it is evident that theirs was indeed not one envisaged by Article 33. It was not an application for correction of errors in computation or typographical errors or errors of a similar nature. The Applicant affirms as much and in fact states that it was never intended to be an application under this provision. In my view there is no need to labour this point with an inapplicable provision. Since the Arbitrator did not spell out any curtailing time limits within which the Applicants should have enforced the award, it cannot be argued that they were out of time. Article 33 is a non-issue here. Indeed, the Respondent as employer could just as easily, of its own volition after the award was granted, have gone ahead to do the calculations of six months’ salary and benefits for each applicant based on the award. If the parties agreed to the veracity of such computations, that would have been the end of the matter.

The rationale for what they termed an ‘*Application for Quantification*’ stems from the practice that for the award to be registrable it must sound in money.

Section 98 (14) of the Labour Act states that:

“Any party to who an arbitral award relates may submit for registration the copy of it furnished to him in terms of subsection 13 to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any magistrate court, the High Court.”

In *Thandiwe Mandiringa v National Social Security Authority* HH 98/05 MAKARAU J as she then was stated that the language in s 98 (14) strongly suggests that the award submitted for registration in terms of the section should sound in money either in the main in the alternative for the reasons that jurisdictionally the determination as to which court to register the award can only be one realistically made on knowledge of the amount involved.

I therefore do not see how in light of all the above, the Applicants can be said to be seeking to introduce an alien document. The document in question is part and parcel of the arbitral award in that it gives the award the “final push” in the correct direction to the appropriate enforcing judicial home based on its amount. This is particularly so where it has become necessary for the winning party to seek justice through its registration. In my view the first objection in limine takes us nowhere other than an unnecessary run around the mulberry bush. As such, the first point in limine is dismissed.

This leads to the second objection in limine which is that the document by the arbitrator is not registrable as it does not follow the requirements of the law in several respects.

The Respondent averred two primary defects; firstly that the application for quantification is defective in its failure to follow Article 31 of the Arbitration Act in terms of what the Arbitrator’s award must contain.

Article 31 of the Arbitral Act provides as follows:

“Form and content of award
1) The award shall be made in writing and shall be signed by arbitrator or arbitrators
2) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under article 30.
3) The award shall state its date and the place of arbitration as determined in accordance with article 20(1). The award shall be deemed to have been made at that place.
4) After the award is made a copy by the arbitrator in accordance with paragraph (1) of this article, shall be delivered to each party”.

The Respondent’s gripe is that the Arbitrator’s approval of the quantification is not compliant with the above requirements that an award must be in writing and signed by the Arbitrator, stating the reasons on which it is based. It must also state its place and date of arbitration after which it ought to be delivered to each party. The ‘Application for Quantification’ is said to fall short of all of the above. It is in the form of an endorsement to the quantification document as opposed to being an award document that complies with the above.

It is instructive that article 31 refers to throughout to ‘award’ in the singular and to what the Arbitrator must do with the ‘award’ in order for it to be compliant with the above provisions. In my view the Arbitrator made one award on the 14th of March which, it is not disputed, complies with the above. The application for quantification cannot in my opinion be seen as an entirely new award whose validity depends in its entirety on the observation of the above technicalities. A computation of what is due is part and parcel of a main award. I would venture to describe it as a supporting, supplementary or back up document to the main award. As such there is no denying the need for it to be authentic in terms of criteria spelt out above. But it is not the actual award itself but its accompaniment. Respondent accepts wholeheartedly that the primary award is perfectly in order in terms of compliance with legal requirements. However, Respondent also acknowledges that on its own it is not registrable for enforcement purposes as it is not in liquid terms. Should its addendum that would make it registrable be forever banished and dismissed by this court on the grounds that it fails the test of compliance. It is said not to give a place of arbitration nor the reasons why it was made outside the stipulated time frames. It is argued that these omissions do not fall in the realm of mere technicalities. I am of the view that they do. The Arbitrator endorsed the quantification as an approved calculation of his award of the 14th of March. He attested to its veracity. He signed. He dated it. He stamped. His principal award to which his endorsement refers is compliant in all respects. The quantification is part of that award.

The Respondent’s objection is exactly that which he says it is not i.e. a technical objection. There is in my view cogent support for the argument that the award made by the Arbitrator on the 14th of March already established substantial finality and that the quantification was not a new award separate from the arbitration award. The quantification should be viewed as seeking to give precision to the outstanding claim so as to make it executable given that the employer had not taken any steps to make a pay-out.

I am inclined to adopt an interpretation which gives effect to this supporting document as endorsed by the Arbitrator as opposed to an interpretation that vitiates it. In this regard I find support in the case of Interciti property Referrals CC v Sage Computing (PVT) LTD and Anor 1995 (3) SA 723 (W) where ZULMAN J at p 727 took the approach that where more than one interpretation of an award is possible, an interpretation resulting in award being effective is to be preferred to one rendering the award meaning less.

He further went on to cite with approval the dictum by Lord Chancellor Eldon in Wood v Griffith (1881) 1 SWAN 43, as being still applicable today where he said:

“It is extremely clear that every award must be certain and final; but it has, particularly in more modern time, been considered the duty of the Court, in construing an award, to find that it is certain and final; and instead of leaning to a construction, which in effect would destroy nine tenths of the awards made, if possible to put one consistent sense on all the terms.”

In the case of Senele Dlomo Bhala v Lowveld Rhino Trust HH 263/13 MAFUSIRE J amongst other objections to the registration of an award, dealt with protestations with a certification document attached to the back of the arbitral ward. He made the following pertinent remark at p12 of the cyclostyled judgement;
 “I am prepared to condone the lack of precision in the certification of the arbitral award. I think that where a party has so substantially complied with the requirements of the law as the applicant has done in this case and where there is no discernible prejudice to the other party, it “would make justice turn on its head” to deny relief in such circumstances. I dismiss the respondent’s ground of objection on this point.”

In National Social Security Authority v Chairman, National Social Security Authority

Workers Committee and others 2002(1) 306 SMITH J at p 314, with albeit with reference to a principal award, expressed great reluctance to nullify an award. As he put it:

“I consider it would go against the spirit of UNCITRAL Model law to hold that if an award did not comply with all requirements of Article 31, it was a nullity. That would mean that if the arbitrator did not state the date of the award or place of arbitration, the award would be a nullity. That in my mind would be too formalistic an approach. Likewise, I cannot accept that because Article 32 provides that the arbitral proceedings are terminated by the final award, the court cannot thereafter order that the arbitrator must do a particular thing to ensure compliance with article 31. If an Arbitrator has failed to state the date or place of arbitration, and it is important that that be done, why the arbitrator should not be permitted to remedy the omission.”

The Arbitrator’s award is also deemed to be non-compliant with Section 5 of S.I 173 of 2012 which reads as follows:

“Every Arbitrator shall a) Remit a copy of their decision to the Provincial office of the Ministry of Labour and Social Services within seven days of the disposal of the matter.
b) Maintain a record of cases he or she has handled for a period of five years subsequently to the disposal of the matter.
c) Remit quarterly a register of the cases on hand and their status to the provincial office of the Ministry of Labour and Social Services.”

Respondent argues that the Arbitrator did not remit a copy of the decision to the Ministry of Labour within 7 days of the matter. It is not argued that his principal award was not remitted and in fact Respondent states it is only that which is valid. I have already expressed my view of the intertwining relationship between the award and its supporting documents.

In Kroon Meule CC v Wittstock t/a JD distributors 1999 (3) SA 866 (E) ERASMUS J observed that a valid award cannot be rendered invalid by virtue of events occurring subsequent to the making thereof. The Respondent concedes that the award made by the arbitrator on the 14th is perfectly valid. On page 874 of his judgement ERASMUS J further went on to state as follows:


“Common sense dictates that an arbitrator need not cross every ‘t’ or dot every ‘i’. To require absolute finality could delay completion of the arbitration and unnecessarily increase costs of the proceedings.”

I hasten to add that where the matter has been effectively arbitrated upon, issues are clear and new disputes are not merely crafted for the simple purposes of delay or frustration of the other party, the court in such cases must necessarily be guided by the need to be swift and effective agents of justice. In the case of Amalgamated Clothing and Textiles Workers Union v Veldspun (PTY) LTD 1994 (1) SA 162 (A) Goldstone JA stated at page 169 of the judgment that courts should “deprecate conduct by a party to an arbitration who does not do all in his power to implement the decision of the arbitrator promptly and in good faith”.

The court has to be mindful of the high costs to applicants who have a valid claim, that can arise from ceaseless ‘avoidance of compliance’ inspired litigation. Lengthy delays remain a root cause of dissatisfaction with the legal process and it is our duty as courts to refuse to play unnecessary games that lead to such situations.

In the final result I make an order in the following terms:

1. The certified arbitral award issued by Arbitrator Madhuku in favour of the applicants on the 14th with its supporting quantification approved by him on the 27th of May, is hereby registered as an order of this court;
2. The Respondent is hereby ordered to pay the sum of US$ 26 352.00 (Twenty six thousand, three hundred and fifty two dollars) to the Applicants in terms of the approved quantification of the arbitral award by the Arbitrator.
3. The Respondent shall pay the costs of this application.

Thondhlanga and Associates, Applicants’ legal practitioners
Mtetwa Nyambirai, Respondent’s legal practitioners
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