MATHONSI
J: The applicants
are former employees of the respondent who were dismissed from employment
between May and June 2011. A labour dispute having arisen at the time of the
termination, such was referred to arbitration in terms of the Labour Act [Cap
28:01].
On 1 November 2011, M.C. Kare, the arbitrator, made an arbitral award directing
the respondent to pay the applicant certain terminal benefits. He also gave the
parties leave to approach him for quantification of those terminal benefits in
the event of any doubt as to quantum.
The matter was duly referred to the arbitrator for quantification and on 30
November 2011, he quantified the various amounts due to the 10 applicants. They
totalled $23 569-00. It is that award which the applicants seek to have
registered as an order of this court for enforcement.
The application is opposed by the respondent on the ground that it had
challenged the arbitral award in the Labour Court by way of a review
application and for that reason the respondent is entitled to refuse “to pay
because the matter is sub-judice.” The applicant also stated that a
further application for stay of execution was filed in the Labour Court.
It is not clear from the papers what became of those 2 applications filed in
the Labour Court although the applicants insisted in the answering affidavit of
the first applicant that no application for a stay of execution was made.
What we have therefore is a subsisting arbitral award which has been challenged
by way of review in the Labour Court. The question of whether such an award
should be registered by this court pending appeal has been the subject of a
number of decisions of this court; Baudi v Kenmark Builders (Pvt)
Ltd HH 4/2012; Ndlovu v Higher Learning Centre HB 86/10.
In respect of the effect of a review application made to the Labour Court I did
state in Greenland v Zichire HH93/2013 at page 3 that;-
“While the Act is silent on the
effect of a review application, it would be absurd to formulate a construction
that would allow litigants to circumvent the provisions of section 92 E (2) by
couching their challenge of an arbitral award to the Labour Court as a review
instead of an appeal. Clearly such a review application would not suspend the
award.”
That should really put the matter to bed. Registration, or is it recognition or
enforcement, of an arbitral award can only be refused where an application for
a stay of execution or suspension of the award made in terms of section 92E (3)
of the Act or upon the person against whom it is invoked satisfying the court
of the existence of grounds of refusal set out in Article 36 of the model law
in the Arbitration Act [Cap 7:15]. see Tapera & others v
Fieldspart Investments (Pvt) Ltd HH 103 /13 at page 2.
The respondent has not set out any acceptable grounds for refusal and has not
secured an order suspending the award. To the extent that the award remains in
subsistence, this court has no reason not to register it.
In the result, I make the following order, that:-
1.
The arbitral award of M.C Kare dated 1 November 2011 as well as the
quantification award dated 30 November 2011 are hereby registered as an order
of this court.
2.
The respondent is directed to pay the applicants the respective sums set out
therein totalling the sum of US$23 569-00.
3.
The respondent shall bear the costs of this application.
Kajojoto and Company,applicants'
legal practitioners
Manyurureni
& Company, respondent's legal practitioners
