Court name
Harare High Court
Case number
HC 1550 of 2014

Mudzengerere & Ors v Civil Aviation Authority of Zimbabwe (HC 1550 of 2014) [2015] ZWHHC 231 (10 March 2015);

Law report citations
Media neutral citation
[2015] ZWHHC 231
Coram
Muremba J

1

                                                                                                                                     HH 231/15

                                                                                                                                   HC 1550/14

 

 

TAPFUMANEYI MUDZENGERERE

and

MICHAEL MUVHU

and

WENGANAI CHIMHAU

and

FIDROS SAVANHU

and

RAYMOND CHINYERERE

and

OWEN SANGAISO

and

ALABI ISA

and

GEORGE MAPHOSA

and

JAMES MOYO

and

CHARLES MADZINGA

and

STEPHEN TAKAIDZA

and

RAYMOND CHIHWANDA

and

ISHMAEL DEBWE

and

PHILLIP T INAAPI NDUDZO

and

RAMECK SIMBI

and

SYDNEY STEWART

and

FARAYI MBINGWANA

and

COLLET MANGENA

and

LOVEMORE MAJEKWANA

and

TOBBI MUNA

and

NELSON NUNURAI MUZURU

and

LOVEMORE FAMBIRAYI

and

MATHIAS MATHIBA

and

MEMORY SIYANATA

and

SORODZAI GWARADA

and

GLADYS TARIRO SIBINGANI

and

MUTOFORI MUTEVEDZI

and

ALBERT CHINOMONA

and

FARAI MUZHINGI

and

LOVEMORE CHIPATO

and

RICHARD FRANK PETERSON

and

DICKSON MUDZENGI

and

DESMOND MASHANU

and

LANGTON KADZIMWE

and

FREDDY NDARASIKA

and

KUNDISHORA TANDI

and

MARTIN MANYEPA

and

JONAH CHIWARA

and

WILSON MARUNGAMISE

and

EDSON D. CHIRIMA

and

FAVOUR CHIMANGA

and

ANDREW V. MAWOTSA

and

TATENDA KUDYARAWANZA

and

REGIS CHIMINYA

and

RADWICK DEERANYIKA

and

STANLEY MVEMVE

and

MICHAEL CHONJA

and

JOHN PHILIP MABHERA

and

EDWIN DZUDZO

and

JONAH MUPANDASEKWA

and

FORGIVE MUTIRORI

and

NHLANHLA ZIKHALI

and

EVISON MUCHUCHU

and

BRIGHTON MABUSHA

and

CHARLES SEKURE

and

MANFRED MAHACHI

and

ISRAEL KAMWENJE

and

CLIFFORD KUMADIRO

and

MDUDUSI MAKHALISA

and

ENERST MPOFU

and

PHILLIP MBERI

and

ANTONY NDLOVU

and

EDMOND GOMO

and

MASWELL ZINYENGERE

and

TONDERAI MUSERUKA

and

CHAMUNORWA DUBE

and

TINASHE MUREFU

and

SHIPHERD MASHONGAYIKA

and

BLESSING NYAMUDEZA

and

DAVID MAKORONI

and

GODFREY VHUREPI

and

BOAS JAKARA

and

ERISON MAKORORE

and

BHII SITHOLE

and

GODFREY PASIPAMIRE

and

ELIAS BAPIRO

and

WILLARD MUCHINGAMI

and

ENOCK C. MUKOSI

and

PAUL MASVIKENI

and

RONALD CHIMEDZA

and

WEBSTER MAHOHOMA

and

CUTHBERT SEKETE

and

ALFRED FUNGAI KAHLAMBA

and

LIBERTY KOZANAI

and

ALBERT MUZHANJE

and

WELLINGTON RUNGANGA

and

CASTEN MUSINGWINI

and

KRAIBO MUTEMATSAKA

and

PRICHARD CHAKAUYA

and

JOIN SIBANDA

and

SHADRECK MUSHA

and

ENOCK NYAMUTAKA

and

ARTHER CHAKAZHAMBA

and

CLEVER MUNODA

and

TALENT MAFUVA

and

HAMANDAWANA MIDZI

and

JAMES MLALAZI

and

J. KANONHUWA RUPAPA

and

JOSHUA MASWELA

and

MICHEL CHIRUME

and

MUCHANETA  MWAKUTUKUSA

and

ALFONCE ZVINOWANDA

and

TERRENCE KUMIRE

and

HLAHLA SIWAWA

and

TALKS MADZIMA

and

ELPHAS TAAKANYI

and

THOMAS MUTANDIRO

and

DANIEL CHINYANGA

and

JOSEPH MUFUNDISI

and

TAPIWA MUTESVA

and

CHARLES CHIRIMA

and

GILBERT JENARA

and

MOSES MADIYE

and

ABRAHAM MUREYANI

and

TERERAI MANDINYENYA

and

GOTOZA ABSOLOM

and

BOB CHIRUHWENI

and

PHILLIP CHARAKUPA

and

REWARD MAGOBOLA

and

GEORGE MUSHAYAVANHU

and

RAVA ZHOU

versus

CIVIL AVIATION AUTHORITY OF ZIMBABWE

 

 

 

HIGH COURT OF ZIMBABAWE

MUREMBA J

HARARE, 20 January 2015 & 11 March 2015

 

 

 

OPPOSED APPLICATION

 

 

 

C Mucheche, for applicants

O T Gasva, for respondent

 

 

            MUREMBA J: The applicants were granted an Arbitral Award by Arbitrator P Bvumbe in their favour on 28 August 2013. On 12 February 2014 the arbitral award was quantified. This is an application to have the arbitral award registered as an order of this court in terms of s 98 (14) of the Labour Act [Chapter 28:01] for the purposes of enforcing the order.

            The respondent raised a point in limine to the effect that the application should be dismissed for the reason that the founding affidavit was deposed to by Mr Caleb H. Mucheche who is a legal practitioner on behalf of the applicants, his clients.

            In the answering affidavit Mr Mucheche argued that there was nothing irregular about a legal practitioner deposing to an affidavit in a matter where he is

 

conversant with the facts. He said in the present case he is the one who was representing the applicants during arbitration proceedings leading to the present application, so he is conversant with the facts.

            He went on to cite the case of Zimbabwe Banking Corporation Limited v Trust Finance limited and Another  HH130/06 where the court took into account the history of the case and accepted the applicant’s affidavit which had been deposed to by the applicant’s legal practitioner. The same legal practitioner had acted for the applicant in the proceedings which subsequently led to the taxation case which sought to be reviewed by the court. The court said that the deponent was duly authorised by the applicant as he averred in the affidavit. Mr Mucheche also referred to the case of  Air Zimbabwe corporation & Others v The Zimbabwe Revenue Authority HH-96-03. In that case the court held that the deponent to the applicant’s affidavit had authority to act for and on behalf of the applicants after taking into account the prior dealings between the parties. Mr Mucheche further argued that it is not always a requirement that there has to be proof of authority to represent the principal. It was submitted that in any case this court is only faced with the application for the registration of the Arbitral Award and nothing else. It does not have to enquire into the merits of the case.

            In support of the point in limine  Mr Gasva, for the respondent made reference to the case of Mandaza v Mzilikazi Investments (PVT) Ltd 2007 (1) ZLR (H) wherein Ndou J said, “Generally, a Legal Practitioner should not depose to a founding affidavit on behalf of a client. However, he may do so if the facts of the case are within his personal knowledge. Even in such exceptional case the practice should be exercised sparingly.” Mr Gasva argued that in the present case there is no explanation why the applicants could not depose to the affidavit themselves.

            Taking into account the history of the case that it is Mr Mucheche who was representing the applicants during the arbitration proceedings leading to the present application, I would not say that it is doubtful that he was authorised by the applicants to represent them. What he deposed to is within his personal knowledge. I find the cases that were cited by Mr Mucheche relevant. Even the case that was cited by the respondent’s counsel is also relevant and it supports the applicant’s argument that in a case where a legal practitioner has personal knowledge he can depose to an affidavit. Even r 227 (4) (a) of the High Court Rules, 1971 states that an affidavit that accompanies a written application shall be made by the applicant or respondent, as the case maybe, or by a person who can swear to the facts or averments set out therein.

 

            In Bubye Minerals (PVT) Ltd & Another v Rani International Ltd 2007 (1) 22 (S) Cheda JA (as he then was) stated that a founding affidavit must be based on personal knowledge and not on hearsay. That being the case in the present matter that Mr Mucheche’s affidavit is not based on hearsay I am not persuaded by the respondent’s argument. In the case of TFS Management Company (PVT) Ltd v Graspeak Investments (PVT) Ltd & Another 2005 (1) 333 (H) it was stated that an affidavit accompanying an application may be made by a legal practitioner who can depose to facts within his personal knowledge. In that case that is what happened and the court went on to say that the legal practitioner did not require special authority to depose to the affidavit. His authority to depose to the affidavit in the application  for further particulars could not be disputed because the respondents had not impugned his authority to act for the applicant in the main action.

            In the present case if Mr Mucheche was representing the applicant in the arbitration proceedings the respondent has no basis to challenge his authority in deposing to the founding affidavit.

            For the above reasons I will dismiss the point in limine.

            THE MERITS

            Mr Mucheche argued that there being nothing suspending the arbitral award in terms of s 92E of the Labour Act [Chapter 28:01] there is no impediment to its registration.

            In opposing the application the respondent stated that it is opposed to the registration of the Arbitral Award for the reason that it has since appealed against the granting of the award in the Labour Court and that appeal is still pending.

Further to that there was also an application for an interim relief in terms of s 92E (2) of the Labour Act [Chapter 28:01] which was made to the Labour Court, which application again was still pending. The interim relief being sought was the stay of the award pending the determination of the appeal by the Labour Court. The respondent argued that it was therefore premature for the applicants to try to enforce the award.

            On the date of the hearing the applicant’s counsel brought to the attention of the court that the interim relief that the respondent was seeking in the Labour Court for the stay of the award pending the determination of the appeal had subsequently been dismissed on 23 May 2014, after the parties had already filed their heads of argument. This court was furnished with a copy of the court order under case number LC/H/ORD/23/2014.

            In terms of s 92E (2) of the Labour Act an appeal does not have the effect of suspending the determination or decision appealed against. S 92E (3) empowers the Labour Court to stay or suspend an award pending determination of an appeal. I am in total agreement with the words of Patel J (as he then was) in the case of Gaylord Baudi v Kenmark Builders (PVT) Ltd HH 4-12 which the applicant’s counsel referred me to. He said,

 

            “As I have already stated, section 92E (2) of the Labour Act expressly provides        that an appeal             against an award in terms of section 98(10) shall not operate to          suspend the award. Section 92E             (3) enables the Labour Court to suspend or stay          an award upon application by the aggrieved    party. Where no such application is made or where it is dismissed, subsections (14) and (15)          of section 98 entitle the       successful party to apply for the registration and enforcement of the award. Parliament has obviously applied its mind to the delays inherent in the appeal process   and considered the policy implications of the general common law rule which  automatically           suspends a decision that is appealed against. It has consciously and deliberately decided that          arbitral awards in the realm of labour  relations should be enforced, despite any pending appeal            and notwithstanding any inconvenience that such enforcement might entail.  In this context, it          would be very difficult to hold that what is specifically provided for and       allowed by statute             should be regarded as being contrary to public policy. Any such approach would simply operate      to frustrate and defeat the clear intention of Parliament.”

 

            See also the case of  Benson Samudzimu v Dairiboard Holidings Ltd HH   204/10.

            In casu the arbitral award which seeks to be registered has not been set aside on review or on appeal nor has it been suspended. There is therefore no basis for this court to decline to register the arbitral award.

            Costs

            Mr Mucheche argued for costs on the higher scale of legal practitioner and client on the basis that the respondent had not raised any serious objection to the application. I am not inclined to award such costs for the reason that when the respondent opposed this application it had already filed an appeal against the award in the Labour Court. It had also filed an application for interim relief in the Labour Court for the suspension of the award in terms of s 92E (3) of the Labour Act. Both applications were still pending. In opposing this application, the respondent was therefore banking on both or either of the applications succeeding.

            The application for the registration of the arbitral award is granted as per the draft order filed of record. The respondent shall pay costs of suit on the ordinary scale.

           

 

 

 

Matsikidze and Mucheche, applicant’s legal practitioners

Chirimuuta and Associates, respondent’s legal practitioners