NAME OF CASE
Zimbabwe Electricity Supply Authority v Maposa
1999 (2) ZLR 452 (SC)
NAME OF THE COURT
Supreme Court of Zimbabwe
CITY AND COUNTRY
Award, setting aside of, grounds of public policy, restrictive application of public policy defence.
The Respondent, an employee of the applicant (ZESA), before the Supreme Court, had been suspended from duty with pay pending investigation into disciplinary charges. After the investigation, ZESA’s Board offered the Respondent an opportunity to resign. The Respondent refused to do so. He argued that the Board’s disciplinary committee was not competent to conduct a hearing, as the Board had prejudged his guilt. He said an independent arbitrator should be appointed. In response ZESA suspended him without pay, pending a disciplinary hearing in accordance with the code of conduct. When steps were taken to hold the disciplinary hearing, the Respondent applied to the High Court for an order, among other things that the parties appoint an independent arbitrator. The order was granted by consent and in due course the matter was heard by the arbitrator
The issue for determination by the arbitrator was the lawfulness or otherwise of the Respondent’s suspension. The arbitrator held that the suspension was a nullity, as ZESA had failed to determine the dispute in terms of the code of conduct. He ordered ZESA to pay the Respondent his salary and benefits from the date of offer of the opportunity to resign.
The Respondent applied to the High Court for an order, pursuant to Article 35 of the Model law contained in the Schedule to the Arbitration Act [Chapter 7:15] for the recognition of the award. ZESA on the other hand sought to set aside the award, pursuant to Article 34 of the Model Law contained in the Schedule to the Arbitration Act [Chapter 7:15]. Both applications were dismissed. Both parties felt aggrieved by the outcome of the High Court proceedings. As a result, ZESA appealed to the Supreme Court and the employee cross- appealed.
Key Holdings :
- The overriding factor in relation to Article 34 of the Model Law, on setting aside an award is that an award must not be contrary to the public policy of Zimbabwe.
- The public policy defence which is applicable to either a foreign or domestic award, should be construed restrictively in order to preserve and recognize the basic objective of finality in all arbitrations. The defence is applicable only where some fundamental principle of the law or morality or justice is violated. An award will not be contrary to public policy merely become the reasoning or conclusions of the arbitrator are wrong in fact or in law. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it. The same consequences apply where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned.
- The award bore the aforementioned characteristics because it entitled the Respondent to take advantage of a position he had deliberately engineered. This bore the above characteristics referred to. Resultantly, the award was set aside.