Nicholas Mukarati v Pioneer Coaches

### Preamble
JUDGMENT NO. LC/H/854/2014
HARARE, 03 NOVEMBER 2014
CASE NO. LC/H/854/2014
IN THE LABOUR COURT OF ZIMBABWE
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/854/2014

HARARE, 03 NOVEMBER 2014	    		   	     CASE NO. LC/H/460/14

AND 19 DECEMBER 2014

In the matter between:-

NICHOLAS MUKARATI					Appellant

And

PIONEER COACHES					Respondent

Before Honourable L. Kudya, Judge

For Appellant	Maguchu (Legal Practitioner) with Advocate Hashiti and Appellant

For Respondent	S. Nyagura (Legal Practitioner) with T. Mashu Legal Assistant and R. Muchada Legal Internal

KUDYA, J:

This is an appeal against the decision of the arbitrator where he dismissed application for rescission of judgment filed by the now appellant in a matter where default judgment had been entered for the now respondent employer.

The background to the matter is that the now appellant was dismissed from employment by the respondent following certain misconduct charges.  Aggrieved by the dismissal, appellant took his matter through all the relevant channels until it ended up at arbitration.  At all material times the respondent opposed the relief which appellant was seeking.  During the arbitration stage the parties are said to have flouted time lines set for their submissions resulting in the arbitrator handing down a default award in favour of the respondent employer.  Aggrieved by the default award the appellant sought to have same rescinded at first by the Labour Court which was an error on his part.

He later filed the rescission application before the arbitrator who had granted the default judgment.  His basis for the application was twofold that is the default judgment had been granted in error.  Alternatively he argued that he had a good excuse for his default and also had a good case on the merits.  The arbitrator was not persuaded by the arguments advanced by the appellant and consequently threw out the application for rescission of the default award or alteration of the same on basis that it had been granted in error.  It is the dismissal of that application which prompted appellant to approach the Labour Court appealing against that decision.

The grounds for the appeal are as follows:-

Arbitrator erred to decide the matter on the basis of sincerity and that the explanation for the delay was insufficient yet the main application was based on the default judgment having been granted in error.  Sincerity and explanation for the default are not part of the requirements.

Arbitrator’s finding that he enquired or reminded appellant is grossly unreasonable and not supported by evidence that no arbitrator properly applying his mind would decide as such.

Arbitrator’s decision that appellant had to communicate with respondent regarding papers filed by respondent out of time is wrong at law and also grossly unreasonable that no arbitrator applying his mind would rule as such.

Arbitrator’s finding that his office made inroads requesting appellant’s submissions is not supported by evidence and it was not made at the hearing to the extent that it could not have been made by an impartial arbitrator.

Arbitrator’s questioning of appellant’s sincerity is so grossly unreasonable that no reasonable arbitrator would have arrived at such a decision.

Arbitrator erred at law in failing to find that his arbitral award had been entered in error because of many reasons including the fact that appellant was not in default and that the proceedings had terminated, that respondent was not entitled to be heard as it was barred and if respondent requested for a default judgment such a request was not served on appellant as obliged by law.

In response to the appeal the respondent maintained that:-

Arbitrator’s decision was unassailable at law.  Default judgment was not granted in error because appellant failed to file its opposing papers on time having received respondent’s papers on 7 February 2013 only filed opposition on 6 June 2013.

2 and 3

Arbitrator did not misdirect self.  His finding is factual and not appealable unless it is grossly unreasonable as to amount to a misdirection at law.  When parties appeared before arbitrator he had hinted that he had begun working on the arbitral award.

4 and 5

This is denied, Arbitrator’s finding is valid.  Ground is devoid of merit and arbitrator’s finding is a factual one.

(6) This is denied Arbitrator’s finding is valid.  Default judgment was not entered in error as appellant failed to file its response to the statement of claim from respondent on 7 February 2013 and only did so on 6 June 2013.  Application for rescission had no bona fides and no satisfactory explanation was given.  Proceedings before arbitrator had not terminated and respondent was thus not barred.  To that extent default judgment was properly handed down.  If appellant is questioning arbitrator’s impartiality he ought to challenge that by way of review and not appeal.

Before dealing with the merits of the appeal it is important to note that respondent also raised a point in limine aimed at disposing of the matter at the outset.  It is therefore imperative that the point be disposed of at the outset.

The point which was raised is that no point of law is raised by the appeal.  It therefore does not conform to Section 98 (10) of the Act which is instructive to the effect that only appeals on questions of law shall line to the Labour Court.  As to what a point of law is as opposed to fact.  See Muzuva v United Bottlers 1994 (1) ZLR 217 (S).  The pertinent question to be answered is whether if one looks at the grounds of appeal one can say with confidence that before the court has been raised facts which demonstrate that the arbitrator misapplied the law or misinterpreted the facts in a grossly unreasonable fashion that it can only be concluded that;

It is tantamount to a breach of the law.

The main argument advanced by the appellant is that arbitrator applied using legal principles in deciding on the matter i.e he based his decision on the sincerity of the application yet decision should have been on whether principles applicable to alteration of a judgment or rescission of judgment had been adequately pleaded and proven by the appellant.

A reading of the arbitral award seems to confirm the argument that the principal issues to be demonstrated seem to have been glossed over by the arbitrator consequently leading to the decision premised on sincerity.  That in the courts review is a misdirection at law which can be brought properly by way of appeal as was done by appellant.

It is also worth nothing that issues about the peremptory provisions of the arbitration Act viz flouting of the timelines for the filing of the claim etc and how an arbitration deals with that also raise a question of law.  In a nutshell, court is persuaded that issues raised by appellant indeed qualify as questions of law entitling the appellant to be heard by this court on appeal.  The point in limine being without merit it be and is hereby dismissed.

Before getting to the merits of the matter it is also worth noting that one serious set back with the matter were the arguments of what the court can loosely term for want of a better term unprofessionalism on the part of the arbitrator and counsel for appellant where the bulk of the arguments centre on what either of them say transpired at arbitration.

At one point court was tempted to put both on the witness stand to test the veracity of their arguments but on reflection it became apparent that such an approach would bring the arbitral office into disrepute as it would be tantamount to the court believing that what the arbitrator put down is not what really transpired.  On the other hand it would also put the legal profession into disrepute by demonstrating that counsel for appellant would not be telling the truth.  In the end court resolved to dispose of the matter only on the basis of what was presented before it without delving deeper into who between the arbitrator and counsel for appellant was telling the truth or not.

Turning now to the merits, the grounds will be addressed in turn as appears below.

Ground 1

Principles to be followed in rescission applications and correction of judgments are settled

A reading of the arbitral award seems to suggest that indeed the arbitrator considered the law vis what has to be satisfied in an application for rescission or alteration of judgment but in a somewhat irrelevant manner.  It need be noted that he indicates that appellant, the then applicant explained in an affidavit the reason for his failure to file submissions on time but that explanation did not find favour with him because he said he had taken the trouble to contact the appellant to regularise the position but when his efforts failed to yield fruit he proceeded to enter the default judgment.

As stated earlier on there are divergent views about what really transpired between the arbitrator and counsel for appellant to the extent that even the record tendered from arbitration does not tell a story of what really happened.  To that extent it would not be stretching things too far to accept that the principles guiding the application were not dealt with properly

It therefore would only be just to hold that the ruling on the basis of sincerity of appellant’s lawyers be set aside.  This ground being merited should succeed.

Grounds 2 and 3

These two grounds are intertwined with ground 1.   There is nothing in the arbitration records to demonstrate clearly when the timelines fell.  It was therefore a misdirection for the arbitrator to close the door for the appellant by handing down the default award when it was not clear how the timelines fell and more so where the proceedings had lapsed by operation of Article 25 or the arbitration Act.  These grounds also being merited should succeed.

Grounds 4, 5 and 6

As in the grounds discussed above the crux of the matter was whether the refusal to rescind judgment was well informed by the agreeable time lines.  A reading of the arbitral record does not seem to set out exactly what happened on the timelines of the matter.  It is just and prudent that the be parties be given a chance to put their houses in order and that the matter be concluded on the merits.  These grounds consequently succeed on the above basis.

IT IS ORDERED THAT

Appeal being merited in its entirety it be and is hereby allowed.

The award refusing rescission is set aside and in its place it is directed that the matter be set down on before a different arbitrator and that it be argued on the merits.

Each party bears own costs.

DUBE MANIKAI & HWACHA, Appellant’s legal practitioners

MATSIKIDZE & MUCHECHE, Respondent’s legal practitioners