Reserve Bank of Zimbabwe v Webster Ngundu & 471 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/108/13
HELD AT HARARE 3RD APRIL 2013
CASE NO
JUDGMENT NO LC/H/108/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/108/13

HELD AT HARARE 3RD APRIL 2013		    CASE NO LC/H/571/11

RESERVE BANK OF ZIMBABWE				Appellant

WEBSTER NGUNDU					Respondents

AND 471 OTHERS

Before The Honourables G. Musariri, L Hove, and B.S. Chidziva, Presidents

For Appellant		Mr C.T. Manyani, Attorney

For Respondents		Mr B Magogo, Attorney

MUSARIRI, G:

On 16th September 2011 the Honourable C Mesikano made an arbitration award.  Amongst other things he ordered Appellant to pay Respondents an amount of US$9, 363, 362.18 with immediate effect.  Appellant then appealed to this Court against the award.  Respondents opposed the appeal.

Two developments occurred in this Court which require recording.  Firstly Appellant withdrew its Notice Of Amendment to the grounds of appeal.  The withdrawal was made orally at the commencement of oral arguments.  Respondents had no issue/s with the withdrawal.  That left the original grounds of appeal intact.  Secondly both parties’ attorneys agreed to amend the citation of the parties to the appeal.  Specifically it was agreed to amend

the citation of Respondents to read, “Webster Ngundu & 471 others”.  This was on the basis that the amount awarded by the arbitrator related to only 472 persons as per an updated Schedule filed in this Court.  Accordingly we amended the citation of the Respondents as agreed by their attorneys.

Appellant raised two (2) grounds of appeal in the following fashion,

“1.	The Arbitrator erred and misdirected himself at law in making an award that is contradictory in itself in that he ordered immediate payment of the amount claimed and at the same time ordered negotiations by the parties to resolve the same issue.

2.	The Arbitrator grossly erred/misdirected himself on the facts, which gross misdirection amounts to a misdirection at law in ordering the immediate payment by Appellant of the amount of US$9, 363.362.18.”

Appellant prayed that the award be set aside and substituted by an order for the payment of the said amount “within a period of eighteen (18) months of this order.”  In addition it prayed for costs of suit.

The arbitration award appears to order both negotiation and payment.  On the face of it that is contradictory as argued for Appellant.  However a closer look at the award shows that appearances belie reality. The portion of the award dealing with negotiation reads,

“I do hereby order that:

*the employer and retrenchees  establish focal point people to encourage and engage in dialogue and communication, in good faith, if and when there is need for such dialogue to resolve this specific retrenchment issue/matter amicably, with immediate effect.”

Immediately thereafter the award reads,

“I do hereby order that:

*all outstanding net totalling US$9, 363, 362.18 by the employe(r), RBZ (Reserve Bank of Zimbabwe) per retrenchees lists attached (Annex-Final Net Balance dated 14 September 2011 Agreement by Consent and signed by both parties refers), must be paid plus the prescribed 5% percent per annum interest (as remedy) with immediate effect.”

This shows that the negotiation envisaged by the Arbitrator was not an alternative to payment.   It was meant to smoothen the actual payment that he ordered.  The sequencing of the award created a false impression that negotiation was ordered as an alternative to payment.  However the actual words used show that was not so.  Arbitrators are hereby cautioned to exercise care in formulating their awards.  The award in casu appears clumsily worded.  It should have been worded in concise and numbered items to avoid confusion.  In any case, the stage for negotiation was the conciliation which preceded the arbitration.  Once conciliation failed, the matter was referred to arbitration which entails adjudication of the parties rights.  The stage for negotiation had passed.

The second tier of Appellant’s case was that immediate payment was an impossibility.  Appellant argued that it is funded by the State through Treasury.  Currently it is poorly resourced and thus unable to effect immediate payment.  Hence its plea for more time to pay.  Respondents pointed out that it is Appellant who came up with the retrenchment package including the timelines for payment.  They agreed to the package.   Appellant has breached the timelines.  They and their families are suffering as a result of the unpaid balances some of which are quite substantial.

This raised the question of Appellant’s status.  How different is it from any other debtor.  We pressed Appellant to clarify its position.  Their attorney’s answer was a claim that their funding by Treasury placed them in a different category from other debtors.  This was not backed by reference to statutory or case authority.  Clearly such response was an unsatisfactory answer.  This confirmed our nascent view that Appellant is in the same position as any other debtor.  Hence  a  plea of empty pockets cannot found a defence to the claim for payment.  It may well be that when Respondents seek to levy execution they might be confronted by empty pockets.  However that is another story for another day.  Hopefully that will be averted by timely intervention by the powers that be.

All in all we consider that the appeal lacks merit.  It therefore fails on that account.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

________________

G. MUSARIRI

PRESIDENT

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I agree				L HOVE

PRESIDENT

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I agree				B.S. CHIDZIVA

PRESIDENT