Manyame Milling (Pvt) Ltd v Brian Matibwe & 6 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/208/2016
HARARE, 10 MARCH 2016 &
CASE NO LC/H/732/2013
8 APRIL 2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/208/2016

HARARE, 10 MARCH 2016 &			                CASE NO LC/H/732/2013

8 APRIL 2016

In the matter between

MANYAME MILLING (PVT) LTD					APPELLANT

Versus

BRIAN MATIBWE & 6 ORS						RESPONDENTS

Before the Honourable P Muzofa J

For the Appellant      Y Kundodyiwa  (Legal Practitioner)

For the Respondent   K Musoni (Legal Practitioner)

MUZOFA J:

This is an appeal against an arbitral award issued in default of appearance by the appellant.

I agree with the respondents’ submissions that the appeal is improperly before the court.

The background to this case is that both parties were supposed to appear before the arbitrator on 10 September 2013. On 9 September the appellant wrote to the arbitrator requesting for a postponement. On 10 September the date of hearing the appellant did not appear before the arbitrator. The respondents’ herein applied for a default order on the basis that the appellant had not attended the proceedings and had not communicated with them. The arbitrator granted the default order.

The appellant has approached this court on appeal. The grounds of appeal relied on are that the arbitrator erred by denying the appellant an opportunity to be heard and that the arbitrator erred at law in granting the award without hearing evidence.

When the parties appeared before this court the appellant also raised issue that an arbitrator cannot grant a default order in terms of section 25 (c) of the Arbitration Act [Chapter 7:15]. This was a point not taken in the notice of appeal. However this court can ably address the issue since a point of law can be raised at any point.

It was submitted for the respondents that the appeal was not properly before the court. A default order cannot be appealed against. The proper course was for the appellant to have the default order set aside first then the matter addressed on the merits. At that point an appeal on a question of law would lie to the Labour Court.

I will address the issue whether an arbitrator can issue a default award first, since it can potentially dispose of this case.

The appellant relied on Article 25 (c) of the Arbitration Act which provides for proceedings in the event of a default:

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

...

…

(c)	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.”

According to the appellant the arbitrator was enjoined to consider the evidence before him and make a determination on the merits, despite the absence of the appellant. There was no information whether parties had filed written submissions before the arbitrator.

The Supreme Court has had occasion to set the parameters of a default order in the case of Christopher Zinavashe v Nobuhle Ndlovu SC-40-06. In that case Zvinavashe did not appear before the court; the court considered the merits of the case and dismissed his application for rescission of judgment. He appealed to the Supreme Court on the basis that the court a quo had dismissed his case on the merits therefore the judgment was appealable. The court defined a default judgment as one obtained by “non-resistance” citing JARVIS CJ in Prev v Square 10 CB 915.

In casu there was ‘no resistance’ to the respondent’s claim before the arbitrator. In my view even if the arbitrator had resorted to the evidence the award remained a default award. The appellant did not appear before the arbitrator to counter the claims by the respondents.

In the Zvinavashe case the court noted that a default judgment can only be set aside by a successful application for rescission of the judgment. The appellant argued that an arbitrator cannot rescind his judgment since the Arbitration Act does not provide for same.

Section 98 (9) of the Labour Act [Chapter 28:01] provides that an arbitrator shall have the same powers as the Labour Court in the hearing and determining any dispute. If the Labour Court can grant an order in default so can an arbitrator. This is within the process of hearing and determination of any dispute. If the labour Court can, as it indeed is empowered to rescind a default order in terms of Section 92(1) (a) of the Act, an arbitrator similarly can rescind an order granted in the absence of a party against whom it was made.

On that basis alone, I am inclined to dismiss this appeal. As stated before there is no need to address the other grounds of appeal.

In the result, the appeal being improperly before the court it be and is hereby dismissed.

Hussein Ranchhod & Company, appellant’s legal practitioners

Musoni Masarire Law Chambers, respondents’ legal practitioners