Jonathan Kwenda v Redcliff Municipality

### Preamble
1
Kwenda v Redcliff Municipality
HMA 27-19
HC 348 & HC 349/18
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JONATHAN KWENDA

versus

REDCLIFF MUNICIPALITY					Case 1

LUCY SUSAN NGWENYA

versus

REDCLIFF MUNICIPALITY					Case 2

HIGH COURT OF ZIMBABWE

MAFUSIRE J

MASVINGO, 14 February 2019

Date of written judgment 5 July 2019

Opposed application

S. Zingano, for the applicants

A. Chinamatira, for the respondent

MAFUSIRE J

[1]	These were two cases in one. Except for the different applicants everything else was the same. So the parties agreed to have the matters combined for argument. It was expedient.

[2]	The matter was an application for the registration of an arbitral award. It was opposed. But I granted it soon after argument and gave my reasons ex tempore. The applicants, the successful party, now say they want a written judgment.

[3]	It was a simple matter. At all relevant times the applicants were employees of the respondents. So were two hundred and fifty five (255) others. They were not being paid their salaries on time, sometimes not at all. Further, the respondent had reduced some of their employment benefits without any prior negotiation, let alone agreement. They took up the matter with the Ministry of Labour. On 20 January 2012 an arbitrator, following a hearing, awarded the employees various sums of money for outstanding salaries and allowances. For the applicant in Case 1, Jonathan Kwenda, the award was US$11 030-78 (eleven thousand and thirty dollars and seventy-eight). For the applicant in Case 2, Lucy Susan Ngwenya, the award was US$15 202-22 (fifteen thousand two hundred and two dollars and twenty-two).

[4]	The applicants alleged the respondent did not pay them the arbitration awards, either at all or in part. On 3 August 2018, thus more than six years after the arbitration, they applied to have their portions of the award registered with this court for enforcement purposes in terms of s 98(14) of the Labour Act, Cap 28:01. The respondent alleged that not only had it paid everything due to the applicants, but also that it had actually overpaid them. So the issue before me was whether the respondent had paid the awards, either at all or in part. Quantum was not in issue.

[5]	Evidently the onus was on the respondent to prove payment. Everyone was agreed on this. So in trying to discharge that onus the respondent tabled a cluster of documents. But they were disparate and incongruent. They comprised voluminous schedules with multiple entries showing, among other things, the arrear salaries due by it to the employees; reconciliations by itself; sporadic Real Times Gross Settlements (RTGS) vouchers; other nondescript vouchers; occasional stop order forms; school fees invoices or receipts, and the like. It was a morass.

[6]	The respondent’s basic argument was two-pronged. It said part of its evidence to show payment was the period the applicants had taken to seek registration of the award. The argument was that under no circumstances would the applicants have waited a whopping six years if they had not been paid. The other part of the argument was that the disparate documents told a coherent story, namely that the applicants had been overpaid.

[7]	The greater part of argument was taken up in trying to decipher the hidden story told by the respondent’s documents. Mr Zingano, for the respondent, put up some fight to try and discharge the onus. But the respondent’s case was badly pleaded. The documents were a mass of unprocessed information. Of such kind of pleading, albeit in a summons case, GILLESPIE J had this to say in Trust Merchant Bank Ltd v Lewis Murodzo Enterprises (Pvt) Ltd & Anor 1998 (2) ZLR 387 (H), at p 390C – D:

“It is no compliance with this rule to attach to the summons or declaration lengthy and bulky statements of account containing masses of ‘raw’ information that still require critical appraisal, collation and analysis. It is in effect an affront to the court to present information in this way. It is the duty of the legal practitioner to reduce this unprocessed information to a simple schedule or calculation. If it is too much work for him, then he ought not to accept instructions.”

[8]	Admittedly the above case is not quite an apposite authority in application matters where all manner of annexures get attached to the founding and supporting affidavits if they are relevant and coherent. But the principle is the same. Raw data from a client must be collated, analysed and presented in such a fashion as to support the averments of the deponent.

[9]	In this case the respondent failed at the elementary stage. For example, a great deal of the documents, even going by the interpretation Mr Zingano urged upon me, showed nothing more than sporadic payments by the respondent, but prior to the arbitration award. Mr Zingano argued that this showed that even before the arbitration, the respondent had embarked upon discharging its financial obligations to the applicants and that under no circumstance could US$11 000 odd and US$15 000 odd have been owing to the respective applicants at the time of the arbitration. But this was a dud argument. That was not the issue before me. An application for the registration of an arbitral award is not an appeal or review of the arbitration judgment or process. It is basically an administrative function whereby awards sounding in money granted under the employment adjudication structures are registered with the courts for enforcement purposes because those structures have no enforcement machinery of their own.

[10]	The other argument by the respondent was that some of the documents, for example, some stop orders forms allegedly signed by both the respondent’s officials and the applicants, would show, among other things, that the respondent was deducting for itself from the arrear salaries and benefits due by it to the applicants, various types of amounts for rent; for water bills; for service charges and for school fees, and that at the bottom of such documents would be specified the balances outstanding, as at any given date, and due by the respondent to the applicants. One such stop order form randomly picked by Mr Zingano for illustration and emphasis was one dated 21 June 2013. It showed some trifle balance of US$1 183-37 (one thousand one hundred and eight-three dollars and thirty-seven). The argument was that if only US 1 000 odd had been outstanding in 2013 under no circumstances could the balance owing have ballooned to US$11 000 odd and US$15 000 odd by 2018 when the applications were launched.

[11]	But that was manifestly a desperate syllogism. To begin with, that particular stop order document was one of several random ones that told no coherent story. Most did not even have the balance figures on them. There was no proper reconciliation. At any rate, such an argument was illusory because in every month the applicants were owed by the respondents, not only the arrear salaries and benefits, but also the current monthly emoluments. But to cap it all, the applicants produced payslips for June 2018 showing, among other things, a staggering $17 220-35 (seventeen thousand two hundred and twenty dollars and thirty-five) owed to the applicant in Case 1, and $36 183-51 (thirty six thousand one hundred and eighty-three dollars and fifty-one) owed to the applicant in Case 2.

[12]	The amounts due by the respondent to the applicants by way of the arbitration award were certain and definite. The applicants said the amounts had not been paid. The respondent said it had paid. The onus was upon the respondent to prove payment. It failed to discharge it. Therefore the applicants were entitled to relief. I granted the following orders:

i/	In respect of the applicant in Case 1:

The arbitral award granted by Arbitrator B. Dube on the 20th January 2012 be and is hereby registered as an Order of this Court in as far as the applicant’s portion of US$11 030-78 (eleven thousand and thirty dollars seventy-eight) is concerned.

The respondent is hereby ordered to pay $11 030-78 (eleven thousand and thirty dollars seventy-eight) to the applicant.

The respondent shall pay the costs of suit.

ii/	In respect of the applicant in Case 2:

The arbitral award granted by Arbitrator B. Dube on the 20th January 2012 be and is hereby registered as an Order of this Court in as far as the applicant’s portion of US$15 202-22 (fifteen thousand two hundred and two dollars and twenty-two) is concerned.

The respondent is hereby ordered to pay $15 202-22 (fifteen thousand two hundred and two dollars and twenty-two) to the applicant.

The respondent shall pay the costs of suit.

5 July 2019

Mavhiringidze & Mashanyare, applicants’ legal practitioners

Wilmot & Bennett, respondent’s legal practitioners