Powertel Communications (Pvt) LTD V Dennis Magaya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/637/16
HELD AT HARARE 30 MAY 2016
CASE NO
JUDGMENT NO LC/H/637/16
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IN THE LABOUR OCURT OF ZIMBABWE			JUDGMENT NO LC/H/637/16

HELD AT HARARE 30 MAY 2016				CASE NO LC/H/623/15

& 21 OCTOBER 2016

In the matter between:

POWERTEL COMMUNICATIONS (PVT) LTD			Appellant

And

DENNIS MAGAYA						Respondent

Before The Honourable Manyangadze, J

For Appellant			A K Maguchu (Legal Practitioner)

For Respondent		Ms F P Machine (Legal Practitioner)

MANYANGADZE J:

This is an appeal against an arbitral award granting rescission of a default judgment, and directing that submissions be filed for the matter to be heard on the merits.

What is peculiar about this application is that it is emanating from the party who sought, and was granted, rescission of the default judgment.  It is not coming from the party who opposed the application for rescission of judgment.

The background to the matter is that the respondent was employed by the appellant, and held the post of Chief Strategy Expert.  The employment was under a fixed term contract which was to run from 1 September 2012 to 31 August 2015.  The contract was prematurely terminated on 11 March 2014, half-way through its intended duration.

The respondent challenged the termination, alleging breach of the termination procedures provided for in the fixed term contract.  The matter went for conciliation before a labour officer, without success, leading to compulsory arbitration.

During pre-arbitration, the respondent (then claimant) undertook to file his submissions by 19 January 2015.  The appellant (then respondent) undertook to file its response to claimant’s submissions by 26 January 2015.

The claimant filed his submissions on 22 January 2015, 2 days after the agreed period.  These submissions were served on the respondent on the same day i.e. 22 January 2015.  The respondent did not file its response.  Despite being reminded to do so, the respondent still did not file its submissions in response to the claimant’s submissions.  This led the arbitrator into issuing a default award.

The default award prompted the respondent to file an application for rescission thereof.  After hearing submissions from both parties, in the application for rescission, the arbitrator granted the application.  He rescinded his default award, and directed that the applicant file its submissions within 5 days of receipt of the order.  It is against this award that the appellant then lodged this appeal.

The appellant’s contention is that proceedings should have been terminated in terms of Article 25 (a) of the Arbitration Act [Chapter 7:15].  This is captured in paragraph 11 of the appellant’s heads of argument, wherein is stated;

“We submit that in terms of the Arbitrator Act 7:15, if claimant fails to file a statement of claim within the agreed period, the proceedings shall terminate.  Reference is made to Article 25 (a) of the Arbitration Act which provides,

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

the claimant fails to communicate his statement of claim in accordance with article 23 (10, the arbitral tribunal shall terminate the proceedings”

The appellant’s grounds of appeal presented some difficulty to this court.  The grounds of appeal are stated as follows:

“1.     The arbitrator erred at law in considering and granting the respondent’s condonation for late filing of its statement of claim in the absence of an application to that effect by the respondent.

The arbitrator erred in granting the respondent condonation for late filing of the statement of claim without hearing the appellant on the same issue.”

The appellant is, essentially, attacking the procedure adopted by the arbitrator, in condoning the respondent’s late filing of his statement of claim in the absence of an application for condonation.  This meant that the condonation was granted without hearing the appellant.

This is what, basically, the two grounds of appeal are impugning in the arbitral proceedings.  The difficulty presented by this is that they are challenging the procedure relied upon by the arbitrator, not the merits of the decision to grant rescission of the default award.

During the hearing of this appeal, I pointed out this difficulty to the appellant’s counsel, and sought his clarification.  The following exchange between the court and the appellant’s counsel Mr A K Maguchu, is instructive;

“Q	Can this matter not be viewed, that is the appeal, as an attack on the procedure adopted by the arbitrator, of granting condonation without an application.

A	refer to page 5 of the record – ground of appeal 2, that is the ground that raises review issue – but as far as the main ground that was argued – I believe that is an issue of law – going to an aspect of jurisdiction, going to the powers of the court a quo  - issues of jurisdiction are both review and appeal issues.”

The point is, the appeal is raising review issues.  Therein lies the difficulty with the appellant’s appeal, which difficulty the court pointed to the appellant. In his response, he conceded the second ground of appeal is raising a review issue.  He then attempted to distinguish the first ground of appeal from the second one.  I do not see how ground 1 can be de-linked from ground 2.   They are clearly one and the same issue.  Ground 2 is an elaboration of ground 1, emphasising the appellant’s right to be heard where an application for condonation is to be considered.  The two grounds are inextricably linked and raise the same fundamental issue – that condonation was granted in the absence of an application, thereby depriving the other party of its right to be heard.

That was the same issue raised in the appeal.  That is the basis on which the arbitral award is being impugned.  It is a procedural issue.  It is therefore a review issue, as properly conceded by the appellant, he then attempted to confine the concession to ground 2 only.

The difference between issues that can be brought for appeal and review was clearly explained by G Foltoe, in his book, A Guide to the Administrative and Local Government Law in Zimbabwe, 4 ed, p 44 and Herbstein and van Winsen, The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa, 5 ed.  In the latter text, the learned authors stated at p 1271

“The reason for bringing proceedings under review or on appeal is usually the same, viz to have the judgment set aside.  Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal.  Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review.46  The first distinction depends, therefore, on whether, on whether it is the result only or rather the method of trial which is to be attacked.  Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well.  The giving of a judgment not justified by the evidence would be a matter of appeal and not a review, upon this test.47  The essential question in review proceedings is not the correctness of the decision under review, but its validity.”

In the circumstances, it is the court’s considered view that the issues raised by the appeal should have been brought in an application for review.  They are improperly before the court under an appeal.  The proper course of action is to have the appeal struck off the roll.

It is accordingly ordered that;

The appeal be and is hereby struck off the roll.

The appellant shall bear the respondent’s costs.

Dube, Manikai & Hwacha, appellant’s legal practitioners

Gula-Ndebele & Partners, respondent’s legal practitioners