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
