This is an appeal against the whole judgment of the High Court (court a quo) in which the court granted an application for the registration of the judgment of the Labour Court amounting to US$177,408 in favour of the respondent.
FACTUAL BACKGROUND
The labour dispute between the appellant and the respondent has been raging on for the past twenty-three years, dating back to 2000. The respondent was employed by the appellant as a Personnel Manager. Sometime in 2003, the appellant suspended the respondent on allegations of misconduct. The respondent challenged the suspension, resulting in a judgment by this Court, in 2012, in which the suspension was declared a nullity.
Following the nullification of the suspension, the appellant opted to retire the respondent in 2012.
The appellant paid the respondent his salaries and benefits for the period from January 2009 up to 2012 in United States dollars.
The payment for that period did not raise any dispute between the parties as the country had dollarized.
A dispute, however, arose as to the payment of salaries and benefits for the period extending from 1 April 2003 to 31 December 2008 which were denominated in Zimbabwean dollars.
The respondent filed an application in the Labour Court for the quantification of the outstanding salaries and benefits for the period 1 April 2003 to 31 December 2008 in United States Dollars.
The total amount he sought was US$1,001,381=14.
The Labour Court held, that, the respondent was not entitled to payment of benefits. It awarded him an amount of US$177,408 being arrear salaries and cash in lieu of leave with interest on the total sum payable at the prescribed rate.
PROCEEDINGS BEFORE COURT A QUO
The respondent filed an application in the court a quo for the registration of the Labour Court judgment in terms of section 92B(3) of the Labour Act [Chapter 28:01]. The respondent submitted, in the court a quo, that, the Labour Court judgment was sounding in money and could therefore be registered.
The appellant opposed the application.
It argued, that, the judgment of the Labour Court was unenforceable as it was denominated in United States dollars, which currency had ceased to be lawful currency. It submitted, that, the Labour Court erred in ordering payment in United States dollars for a debt that was incurred prior to 22 February 2019.
It was further argued, that, the judgment was therefore contra bonos mores and not registrable.
It was also argued, that, an application for leave to appeal was pending in the Labour Court under case number LC/H APP/293/2020, and, the court a quo should defer determining the application pending determination of the appeal.
In response, the respondent argued, that, the appellant was not being denied the right to pay in local currency using the Reserve Bank of Zimbabwe auction rate. He denied there being a pending application for leave to appeal. He also argued, that, the existence of an application for leave to appeal was not a valid reason for refusing to register a judgment.
DETERMINATION BY THE COURT A QUO
The court a quo found, that, the respondent had managed to satisfy the requirements for registration of the judgment of the Labour Court. It further found, that, the issue of currency of the judgment is a question of law which could only be entertained by the Supreme Court, on appeal, in terms of section 92F of the Labour Court Act. It held, that, registration of the judgment was not contrary to public policy.
The court a quo further held, that, the appellant could not seek to rely on an intended appeal as a ground for opposing the registration of the judgment, and that, in any event, the noting of an appeal does not suspend the decision appealed, and, consequently, the registration as well.
The court a quo proceeded to grant the application for the registration of the Labour Court judgment.
Aggrieved by the court a quo's decision, the appellant noted the present appeal on the following grounds:
GROUNDS OF APPEAL
“1. The court a quo erred and misdirected itself in relying on an authority neither argued nor brought to the attention of the parties.
2. The court a quo further erred and misdirected itself in failing to exercise judicial function to determine an application before it contra the specific provision of section 92B(3) of the Labour Act.
3. The court a quo further erred in failing to distinguish between and conflating the determination of the executability of a judgment with an appeal addressing the correctness of a judgment.
4. The court further erred and misdirected itself in registering and ordering the enforcement of judgment whose enforcement is proscribed and contra statutory authority per section 22 of Finance Act and section 2 of S.I. 142/19, section 4(1)(d) of SI 33/19 and section 12A(1), 92B(3) and section 94 of the Labour Act.”
SUBMISSIONS BY THE APPELLANT
Counsel for the appellant submitted, that, to order execution on an unlawful currency is contrary to the law. He argued, that, the order issued by the court a quo was not sounding in money as it was denominated in United States dollars which, at the time, was not legal tender. He further argued, that, the court a quo could therefore not register a judgment which ordered payment of arrear salaries in illegal tender.
Counsel for the appellant argued, that, the court a quo failed to exercise its judicial function when it held, that, the matter raised a point of law which could only be determined by the Supreme Court. He submitted, that, the court a quo ought to have determined whether or not the amount in issue was legal tender rather than avoid the issue.
SUBMISSIONS BY THE RESPONDENT
Counsel for the respondent submitted, that, the court a quo was not required to go into the merits of the case as doing so would be usurping the powers of the Labour Court. He submitted, that, the court a quo did not misdirect itself in failing to deal with the issues raised by the appellant. He further submitted, that, the court a quo cannot amend the Labour Court's judgment.
Counsel submitted, that, the judgment was sounding in money thereby satisfying the requirements for registration.
He argued, that, the issue that the judgment was not sounding in money was never raised in the court a quo and could not therefore be raised for the first time before this Court.
He further submitted, that, if the Labour Court's judgment was unlawful, as alleged, the appellant ought to appeal against that decision.
ISSUES FOR DETERMINATION
Two issues fall for determination:
(i) Firstly, whether the Labour Court judgment was registrable; and
(ii) Secondly, whether the court a quo ought to have entertained the question of law raised by the appellant, that, the judgment was denominated in an illegal currency.
THE LAW AND ANALYSIS
The requirements to be satisfied in an application for the registration of an award were listed in Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306. MALABA DCJ…, citing with approval the remarks by CHIWESHE JP…, in Olympio & Ors v Shomet Industrial Development HH191-12, remarked…, as follows:
“In registering an arbitral award, the High Court and the Magistrates Court are not carrying out a mere clerical function.
While the registering Court may not go into the merits of the award, since its duty is to provide an enforcement mechanism and not to usurp the powers of the Labour Court, it must be satisfied, before registering an award, that all the necessary formalities have been complied with.
In Olympio & Ors v Shomet Industrial Development HH191-12, CHIWESHE JP at 1 and 2 of the cyclostyled judgment, outlining the requirements for registering an arbitral award, stated:
'The purpose of registration is merely to facilitate the enforcement of such an order through the mechanism availed to the High Court or the Magistrate Court, namely, the office of the Deputy Sheriff or the Messenger of Court, respectively….,.
In an application such as the present one, this Court is not required to look at the merits of the award - all that is required of this Court is that it must satisfy itself that the award was granted by a competent arbitrator, that the award sounds in money, that the award is still extant and has not been set aside on review or appeal, and that the litigants are the parties, the subject of the arbitral award. There must also be furnished, a certificate given under the hand of arbitrator….,.'
The requirements that must be satisfied before the High Court or the Magistrates Court grants an application for registration of an award are:
(a) The award must have been granted by a competent arbitrator.
(b) The award must sound in money.
(c) The award is still extant and has not been set aside on review or appeal.
(d) The litigants are the parties to the award.
(e) The award must be certified as an award of the arbitrator.”...,.
As correctly noted by the court a quo, whilst both cases related to the registration of arbitral awards, they apply with equal force to the registration of Labour Court judgments.
In casu, the appellant did not dispute that requirements (a), (c), (d), and (e) were satisfied. It, however, argued, that, the judgment was not sounding in money as it was not denominated in legal tender. It further argued, that, the judgment was not, as a result, executable and hence could not be registered.
As correctly submitted by the respondent, the question whether the judgment was sounding in money was not raised in the court a quo.
The court a quo cannot, therefore, be faulted for failing to determine an issue that was not raised before it. Had it done so, the court would have gone on a frolic of its own: see Nzara v Kashumba SC18-18.
In any event, the mere fact that the appellant is of the view that the judgment is denominated in illegal tender does not mean that the judgment is not sounding in money.
In Shaun Evans & Another v Yakub Surtee & 3 Others SC04-12 two categories of judgments were identified. It was held that:
“Orders of court are, generally speaking, divided into two categories: orders to pay a sum of money, namely, orders ad pecuniam solvendam; and orders to do, or abstain from doing, a particular act, or to deliver a thing, namely, orders ad factum praestandum.”
The court, in that case, addressed the meaning of a judgment sounding in money, which it described as ad pecuniam solvendum. A judgment sounding in money, therefore, simply means, a judgment that requires the judgment debtor to pay an identified sum of money.
HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th ed, Volume 2…, also state, that, ad pecuniam solvendam is when the court has ordered the judgment debtor to pay a sum of money.
In terms of the Labour Court judgment, the appellant is required to pay to the respondent a sum of US$177,408. The amount payable having been specified, the judgment is sounding in money.
The court a quo, therefore, correctly relied on Vasco Olympio & Ors v Shomet Industrial Development HH191-12 and Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306 when it held, that, all the five requirements were met and the Labour Court judgment was registrable.
