CHIWESHE JP:
The legal issue that arises in this chamber application is whether
the provisions of the Labour Act [Cap
20:01] exclude the
jurisdiction of the High Court in areas where the Labour Court has
jurisdiction.
Section 89(6) of the Labour Act provides:
“No court other than the Labour
Court, shall have jurisdiction in the first instance to hear and
determine any application, appeal or matter referred to in subsection
(1).”
Section 89 of the Labour Act spells out the functions, powers and
jurisdiction of the Labour Court.
In Tuso
v City of Harare
2004 (1) ZLR (H) BHUNU J had occasion to consider the legal import of
section 89(6) of the Labour Act. The learned judge concluded at p3F
as follows:
“It is manifestily clear to me
that the intention of the legislature was to expressly exclude the
jurisdiction of all other courts in areas where the Labour Court has
jurisdiction in the first instance.”
I am in entire agreement with that conclusion.
It is important to note the historical context in which the Labour
Court was created. Its predecessor, the Labour Relations Tribunal,
was limited in terms of its powers and jurisdiction. Its decisions
were subject to review by the High Court in much the same way as the
decisions of any other domestic tribunal would be. Even then this
court always took the view that a litigant must first exhaust the
internal remedies availed to it in terms of the Labour Act, before
approaching it for relief.
The Labour Relations Tribunal was
in 2003 transformed into a court whose powers of review were the same
as those of the High Court subject to the provisions of section 89(1)
of the Labour Act.
The intention of the legislature clearly was to establish a one stop
shop for all labour matters and provide finality in litigation
involving labour issues. Otherwise why create a structure that is
parallel to the High Court?
However, this exclusive
jurisdiction only exists for matters provided for in section 89(1).
In the present application the
applicant seeks to register an arbitral award with this court in
terms of section 98(14) of the Labour Act.
The respondent opposes the application on the basis that the arbitral
award offends public policy in terms of art (s) 34 and 36 of the
Arbitration Act.
It has incorporated by reference papers it filed under case number
HC5560/10, a separate application, and has argued that the present
application and that filed under case HC5560/10 be heard together.
I agree with the applicant that the correct procedure would have been
for the respondent to file a counter chamber application in terms of
Rule 229A which reads:
“Where a respondent files a
notice of opposition and Opposing Affidavit, he may file, together
with these documents, a counter application against the applicant in
the form, 'mutatis
mutandis' of a
court application or a chamber application whichever is applicable.”
In any event it would be improper to join the two applications
because the time within which the second respondent under case number
HC5560/10 (the arbitrator) must file a notice of opposition has not
expired. The second respondent's defence in that application is
therefore not yet known.
I have however taken the liberty to consider the heads of argument
filed by the respondent under case 5560/10 for purposes of
determining the present application.
I agree with the applicant that
the extent to which the provisions of the Arbitration Act are
applicable in labour matters is governed by section 98 of the Labour
Act subsection 2 of which provides:
“Subject to this section the
Arbitration Act [Cap
7:15] shall apply
to a dispute referred to compulsory arbitration.”
Section 98 provides for inter
alia the referral
of matters to compulsory arbitration, the appointment of arbitrators,
appeals against decisions of arbitrators, reviews and other remedies.
These provisions are detailed and comprehensive.
Clearly it could not have been
the intention of the legislature that parties aggrieved by the
decision of an arbitrator in a labour dispute seek remedy in terms of
section 34 or 36 of the Arbitration Act.
I agree with the applicant that the correct interpretation would be
that, with regards the law, the Labour Act takes precedence over the
Arbitration Act and any other enactment.
The intention of the legislature was to have all labour matters
initiated and resolved to finality in terms of the Labour Act.
Equally, the legislature must have intended that such matters be
dealt with by the Labour Court to the exclusion of any other court.
Sections 34 and 36 of the Arbitration Act are not applicable in cases
where the award sought to be challenged relates to a labour dispute.
The mechanisms for challenging such awards are provided for in the
Labour Act and may be accessed through the medium of the Labour
Court. No other court has jurisdiction to entertain such matters.
In the present case the respondent has lodged an appeal with the
Labour Court. The appeal is still pending. Should the respondent wish
to have the arbitrator's determination suspended pending appeal or
dealt with in any other interim way, it is to that court that it must
direct its application.
Accordingly, for as long as the arbitral award has not been suspended
or set aside on review or appeal in terms of the Labour Act, there is
no basis upon which this court may decline registration of the same.
It is therefore ordered as follows:
1. The arbitral award issued by
Mr A.J. Manase, an independent arbitrator, be and is hereby
registered in terms of section 98(14) of the Labour Act [Cap
28:01].
2. In terms of the said arbitral
award, the respondent shall pay the applicant an amount of
US$287,491.00.
3. The respondent is to pay the
costs of this application.
Atherstone & Cook,
applicant's legal practitioners
Dube, Manikai & Hwacha,
respondent's legal practitioners
