Alois Mapfumo v Transport & General Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/728/16
HELD AT HARARE 10 JUNE 2016
CASE NO
JUDGMENT NO LC/H/728/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/728/16

HELD AT HARARE 10 JUNE 2016				CASE NO LC/H/1089/15

& 18 NOVEMBER 2016

In the matter between:

ALOIS MAPFUMO						Appellant

And

TRANSPORT & GENERAL WORKERS UNION		Respondent

Before The Honourable Manyangadze, J

For Appellant		R Masomera (Trade Unionist)

For Respondent		Ms P Kashiri (Legal Practitioner)

MANYANGADZE J:

This is an appeal against an arbitral award in terms of which it was ordered that the dispute between the appellant and the respondent be heard de novo.

The brief facts of the matter are that the appellant lodged a complaint of constructive dismissal with a labour officer.  Attempts to conciliate the dispute were unsuccessful.  It was referred to compulsory arbitration.

The matter was not dealt with on the merits at arbitration.  What happened is that the appellant raised a point in limine, which was to the effect that the respondent’s representative did not have locus standi to represent the respondent.  The respondent’s representative was one Mr Timothy Sangarwe, who did not have a practising certificate.  He purported to represent the respondent as a legal practitioner practising under Mabundu Law Chambers..  It is not quite clear what his actual relationship with the respondent was.  The arbitrator’s notes, dated 12 October 2015, indicate that he submitted that he was legal advisor to the respondent, which is a trade union.  If that was the case, he ought to have appeared as an official of the trade union.   He could not appear as a legal practitioner practising under Mabundu law firm.  He had no locus standi to represent the respondent in that capacity.  It is not clear what arrangement was made by the law firm to enable him to appear under their practice.  The irregularity, and consequently lack of locus standi, was conceded before the arbitrator.

The arbitrator upheld the point in limine, and issued the following award;

“It is ordered that the parties, after engaging or regulating their representation, approach the tribunal for a trial de novo.”

It is this order which prompted the appeal to this court.  The main basis of the appeal is that the arbitrator ought to have proceeded on the basis that the matter was unopposed and issued an appropriate award in terms of the statement of claim.  There was no basis for the order he made for a hearing de novo.

In response, the respondent averred that there was nothing improper about the arbitral award.  There was no prejudice, actual or potential, arising from the order for a hearing de novo.  The respondent further argued that labour matters ought not to be determined on the basis of technicalities.   In this regard, it made reference to the often cited case of Dalny Mine v Banda 1999 (1) ZLR 220 (S).

First, it ought to be understood what the effects or consequences of lack of capacity on the part of the respondent’s representative are.  It means all the papers he filed and submissions he made before the arbitral tribunal are a nullity.  See Mcfoy v United Africa Company Ltd (1961) 3 ALL ER 1169, at 1172.

It means the statement of defence filed on behalf of the respondent was a nullity.  The record contains a lengthy statement of defence, running up to 20 pages.  It means there was no response to the appellant’s claim.  Effectively, the arbitral tribunal was dealing with an unopposed matter.  One must then look to the statute that governs its operations or circumscribes its powers, to determine the appropriate course of action.

Article 25 of the Arbitration Act [Chapter 7:15] deals with a situation where a party is in default.  It provides

“Unless otherwise agreed by the parties, if, without showing sufficient cause –

…

the respondent fails to communicate his statement of defence in accordance with Article 23 (1), the arbitral tribunal shall continue the proceeding without treating such failure in itself, as an admission of the claimant’s allegations;

any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it; (Underlining added)

…”

It seems to me the proper course of action was for the arbitrator to treat the matter as unopposed, and make an award after considering the evidence before him.  In this case, he would have to consider the appellant’s (then claimant’s) submissions and come up with an appropriate award.  Any other course of action would require the agreement of the parties, as provided for in Article 25, supra.

In casu, there was no agreement to proceed otherwise than having the matter dealt with as unopposed.  The appellant had infact applied that the matter be treated as unopposed and an award be made on the basis of the statement of claim.  The arbitrator acknowledged as much, as reflected in his findings, wherein he stated;

“Claimant filed an application to have the respondent’s counsel to be barred from representing the respondent and to have the award awarded to claimant on the basis that since counsel did not have legal standing to represent the respondent, the matter consequently be declared to have been an unopposed matter.” (Underlining added)

In the circumstances, it was a misdirection on the part of the arbitrator to order a trial de novo.  He ought to have proceeded to deal with the matter as an unopposed matter, and then grant an appropriate remedy.  The matter will therefore have to be remitted to the arbitrator, for him to proceed as indicated.

In the result, it is ordered that

The appeal succeeds in part.

The arbitral award issued on 19 November 2015 be and is hereby set aside.

The matter be and is hereby remitted to the arbitrator for him to proceed in terms of Article 25 (c) of the Arbitration Act [Chapter 27:15]

Each party bears its own costs.

Mabundu Law Chambers, respondent’s legal practitioners