Judgment
MATHONSI
J: This
is an application for registration of an arbitral award made in terms
of section 98(14) of the Labour Act, Chapter 28:01. That section
provides:
“Any
party to whom an arbitral award relates may submit for registration
the copy of it furnished to him in terms of subsection (13) to the
court of any magistrate which would have had jurisdiction to make an
order corresponding to the award had the matter been determined by
it, or, if the award exceeds the jurisdiction of any magistrate
court, the High Court.”
The arbitral award sought to
be registered was made by an arbitrator P.A Chenyika on 13 June 2008.
In the award the arbitrator
ruled that the applicant had been unlawfully dismissed by the
respondent and he ordered his reinstatement without loss, that he be
paid the agreed salary of R8,000,00 per month and arrears of his
salary.
It would appear that when the
applicant presented himself for reinstatement the respondent refused
to comply with the arbitral award. It also did not pay the applicant
his outstanding salary. As a result the applicant returned to the
arbitrator and sought a quantification of damages in lieu of
reinstatement as provided for in section 89(2)(C)(iii) of the Labour
Act.
On
the 21st
July 2008 the arbitrator quantified damages in lieu of reinstatement.
Again the respondent did not
pay the damages in lieu of reinstatement. Basically the respondent
did not do anything at all about the award as it did not challenge it
in the Labour Court either by way of appeal or review.
The applicant then filed this
application seeking to register the award.
The application for
registration has been opposed by the respondent on the basis that
when the award was made respondent had applied for a 6 month
postponement of the hearing up to December 2008 as its executive
chairman was going to be away in Namibia on business.
The respondent has also argued
that there was a breach of the rules of natural justice in that it
was not afforded an opportunity to be heard before a determination
was made and that the arbitrator did not avail a copy of the award as
provided for in section 98(13) of the Labour Act.
None of the reasons for
opposing the application for registration are sustainable.
It is common cause that there
is an arbitral award in existence which award was made in terms of
the law. That award has not been set aside and indeed nothing has
been done by the respondent to challenge that award as it is entitled
to do by the Labour Act. It is common cause that there is nothing
pending in any court putting to question that award.
Respondent cannot seek to
challenge an arbitral award in opposing papers filed in an
application for registration.
In an application of this
nature this court does not inquire into the merits or otherwise of an
arbitral award. That is the province of the Labour Court upon an
application or appeal being made to that court.
Registration of an arbitral
award is only done for purposes of enforcement because the labour
structures have no enforcement mechanism. Upon registration the
award has the effect of a civil judgment of the appropriate Court.
This is in terms of section 98(15) of the Labour Act.
As long as the award stands
unchallenged the appropriate court has no mandate to inquire into the
propriety or otherwise of that award and is obliged to register it.
In the result I make the
following order:
1.
That
the arbitral award of arbitrator P.A Chenyika dated 13 June 2008 and
the subsequent quantification of damages in lieu of reinstatement
dated 21 July 2008 be and are hereby registered in terms of section
98(14) of the Labour Act Chapter 28:01.
2.
That the respondent shall bear the costs of suit on an ordinary
scale.
Mlweli
Ndlovu & Associates,
applicant's legal practitioners
