Doves Funeral Assurance (Pvt) Ltd v Albert Mukozho and Arbitrator Alpha Gurupira N.O

The applicant and first respondent were involved in a labour dispute referred for arbitration before the second respondent (arbitrator). The arbitrator rendered an award in favor of the first respondent and subsequently issued a "quantification award" without reasons. The applicant approached the High Court under HC 1794/19 seeking to set aside the quantification award. The first respondent filed papers conceding the award without reasons could not stand and simultaneously filed a counter-application seeking an order that the arbitrator re-quantify the award with reasons. On the mistaken assumption that his concessions excused the applicant from attending, the first respondent set down the counter-application on the unopposed roll and obtained an order granting both the primary relief from the main application and relief from the counter-application. The applicant then brought this application under Rule 449(1) to set aside the judgment granted in HC 1794/19 on the basis it was erroneously sought or granted in its absence.

• Whether a counter-application can properly be set down on the unopposed roll when the main application remains contested
• Whether a counter-application can be heard separately from the main application without court authorization under Rule 229A(2) read with subrule (4)
• Whether relief can be granted against a party (the arbitrator) not cited in the main application but only cited in the counter-application
• Whether the procedural irregularities constitute material errors warranting rescission of judgment under Rule 449(1)
• Whether the matter is res judicata

1. The judgment granted in Case No. HC 1794/19 on 29 May 2019 was set aside. 2. Costs were ordered to be in the cause in HC 1794/19.

A counter-application cannot properly be set down on the unopposed roll when the main application remains contested, even if concessions have been made in the opposing papers. Setting down a counter-application on the unopposed roll in such circumstances and obtaining a default judgment constitutes a material procedural irregularity warranting rescission under Rule 449(1). The fact that the order granted reflects only parties to the counter-application while granting relief sought in the main application creates an irregularity where the main application remains procedurally uncompleted despite the substantive relief being granted. These procedural errors cannot be justified solely by reference to the substantive end result achieved.

The court observed that what complicates matters is that the order reflects only the parties to the counter-application, which would effectively mean that the main application remains uncompleted in circumstances where the relief sought therein has already been granted. The court also noted that the success of the rescission application was somewhat academic since it would merely reinstate the impugned quantification award which the applicant would still have to challenge through the main application. The court commented that there is no legal requirement that an order granted must be identical to the draft order filed - the court is at large to grant relief if satisfied it is based on and supported by the papers before it.

This case clarifies important principles regarding civil procedure in Zimbabwe, particularly regarding the improper use of the unopposed roll when a matter remains contested. It demonstrates that procedural irregularities, even where the substantive relief granted may accord with what was sought, can still warrant rescission of judgment. The case reinforces the importance of proper procedure in counter-applications and the requirement for court authorization before hearing counter-applications separately from main applications under Rule 229A. It also illustrates the court's approach to costs in rescission applications where success may be academic in nature.