Zimpapers Logo

Geoff Nyarota

Herald Reporters
THE High Court has found against Associated Newspapers of Zimbabwe (ANZ), publishers of The Daily News and ruled that the company should pay a total of $91 000 awarded by an arbitrator in 2012, to the newspaper’s founding editor Geoffrey Nyarota following a labour dispute.

High Court judge, Justice Esther Muremba, made the ruling at the conclusion of a case that goes back to 2010 when ANZ summarily dismissed Nyarota after repatriating him from the United States in an arrangement that would have seen him preside over the re-launch of the newspaper, once it was registered by the Government, following its closure in 2003.

The company alleged that Nyarota did not have a contract when he returned to Zimbabwe in February 2010.

Nyarota took the matter to the Labour Court, which referred the case to arbitration. Arbitrator J.T. Mawire was required to determine whether a contract did exist between ANZ and Nyarota and, if so, whether the editor’s dismissal in May 2010 was lawful.

Nyarota was fired by ANZ’s Johannesburg-based CEO, Jethro Goko, and the company’s chairman, Prof Norman Nyazema, also based in South Africa. a few days after The Daily News was re-registered by Government.

The arbitrator ruled in favour of Nyarota, finding that he indeed had a contract with ANZ and that the contract had been unlawfully terminated. He obtained an arbitral award in August 2011 and in February 2012 the arbitrator quantified the award in the amount of $91 000 plus costs. The present application before the High Court was for the registration of that award in terms of Section 98 (14) of the Labour Act as an order of the court for purposes of enforcing payment.

ANZ, however, challenged the registration on technical grounds. Advocate Fadzai Mahere appeared for Nyarota. She was instructed by Ms Doreen Gapare of Scanlen and Holderness Legal Practitioners, while Advocate Thabani Mpofu, instructed by Mr Mordecai Mahlangu of Gill, Godlonton and Gerrans Legal Practitioners represented ANZ.

In opposing Nyarota’s application for registration of the award ANZ raised two points in limine (preliminary points).

The first point was that the application was brought as a chamber application when such an application should be made as a court application.

In her judgment Justice Muremba said Mr Mpofu “went to great lengths distinguishing between the High Court as a court and a judge of the High Court. He argued that an application to the High Court is a court application, whereas an application to a judge in a chamber application.

“Mr Mpofu argued that applicant’s failure to comply with a statutory provision which says such an application is a court application renders the application null and void and as such should be dismissed with costs.” Mr Mpofu had argued further that the chamber application, even if it was admissible, had not been accompanied by a Form 29, which requires the grounds of the application to be set out.

Arguing in response on behalf of the applicant Ms Mahere said there was no merit in this point in limine raised by Mr Mpofu. She said Section 98 (14) of the Labour Act does not set out the procedure to be followed in an application to register an arbitral award. She argued that the provision simply states that the High Court may be approached, but it is up to the applicant to elect the form of procedure to follow.

She argued that the distinction that Mr Mpofu sought to make between the High Court and a judge was without merit too, arguing further that it was not always the case that “High Court” meant the court, while “judge” meant a judge.

Said Justice Muremba: “She (Ms Mahere) further argued that the relief that the applicant is seeking is of a procedural nature. She argued that it was proper for the applicant to proceed by way of a chamber application.”

Ms Mahere also argued that in terms of the relevant section of the act the adoption of a wrong form of application was not the basis to dismiss an application unless there was prejudice to the other party. She pointed out that in this case there had been no prejudice to the respondent because ANZ had been served with the application.

Judge Muremba said; “So as Ms Mahere was arguing, s 98 (14) does not stipulate the procedure that a party seeking to register an arbitral award ought to adopt. It is entirely up to the party seeking registration to elect the procedure to adopt.

“The applicant, therefore, did not err in bringing this application as a chamber application and not as a court application. So the fact that in the present matter the applicant made a chamber application instead of a court application in not per se fatal.

“There being no prejudice suffered by the respondent I will dismiss the point in limine.”

The second point raised by Mr Mpofu was that ANZ had since lodged an appeal against the arbitral award and intended to raise another appeal against the quantification of the arbitral award. He submitted that there were two conflicting positions of law with regards to the effect of an appeal. He submitted that there were conflicting High Court judgments on that issue.

Ms Mahere did not dispute this submission. The judge said it was common cause that there are some judgments by the high Court which say that the noting of an appeal does not have the effect of suspending the operation of the decision appealed against. On the other hand there are some cases, which say the noting of an appeal suspends the operation of the decision appealed against.

Mr Mpofu suggested that on the basis of conflicting judgments Judge Mutenda should not deal with the matter as this would cause her court to align itself with one side, thereby causing further confusion in the law. Mr Mpofu further submitted that a possible approach that could be adopted, given the potential for complexity of the matter being tried was to involve up to three judges to hear the matter.

In her judgment Justice Muremba said : “In the present case Ms Mahere opposed the point in limine, correctly arguing that there is nothing complex about the issue at hand.. It is my considered view that it would be improper for a team of judges to sit in order to determine this issue. Instead I will make a determination on the issue.

“I therefore dismiss the respondent’s second point in limine,” she said.

She said Mr Mpofu had indicated that he had not come to court prepared for the hearing on the merits of the matter.

Justice Muremba said, “Even his heads of argument did not include heads of argument on the merits, He submitted that after making a determination on the points in limine the court could invite the parties back for arguments on the merits.

“Ms Mahere was not amused by Mr Mpofu’s approach to the matter. Clearly Mr Mpofu’s approach had the effect of delaying the finalization of the matter.

“Now that I have dismissed Mr Mpofu’s points in limine the matter should proceed to be determined on the merits. Looking at the opposing affidavit of the respondent I do not see any point in calling the parties to argue on the merits. In the opposing affidavit the respondent raised the effect of an appeal on the decision appealed against as a point in limine, which point I have already dismissed. On the merits the respondent argued that the arbitral award ought not to have been awarded. It goes on to attack the decision of the arbitrator in granting the arbitral award and says that on that basis the arbitral award should not be registered.

“In dealing with an application for registration of an arbitral award this court is not being called upon to review the decision of the arbitrator or to go into the merits of the appeal which is pending in the Labour Court. For this reason I do not see the point in recalling the parties to argue on the merits. The points in limine dispose of the matter.

“In the result, the application for registration of the arbitral award is granted with costs.”

Meanwhile, on July 1 Justice Musariri of the Labour Court postponed sine die, that is indefinitely, the appeal filed before it by Gill Godlonton and Gerrans on behalf of ANZ.