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= 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 [Chapter 28:01].
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 the respondent had applied for a six (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 [Chapter 28:01].
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 Chapter 28:01]. It is common cause that there
is nothing pending in any court putting to question that award.
The
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 Chapter 28:01]. 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.
