On
10 October 2013, K Segula, sitting as an arbitrator, granted the
following award in favour of the applicant:
“Award
After
considering the facts, law and submissions by the parties, I hereby
make the following orders:
1.
That the respondent be and is hereby ordered to pay claimant wages
and benefits for 24 months amounting to $96,860= which is calculated
as follows:
-
|
Description
|
Amount
|
|
Basic
Salary $2,600 x 24 months
|
$62,400=
|
|
Use
and enjoyment of company car $100 x 24 months
|
$2,400=
|
|
Monthly
fuel allowance 150 litres x 24 months @ $1.35
|
$4,860=
|
|
Airtime
@ %50 x 24 months
|
$1,200=
|
|
60
leave days @ $2,600 x 2 months
|
$5,200=
|
|
Annual
bonus x 2 months
|
$5,200=
|
|
Company
House @ $500 x 24 months
|
$12,000=
|
|
Non-contributory
medical aid (3 people @ $150 per month)
|
$3,600=
|
|
Total
|
$96,860=
|
”
On
16 June 2014, after the award had been appealed against, the Labour
Court confirmed it.
It
is the above award that the applicant herein now seeks to register as
an order of this court in terms of section 98(14) of the Labour Act
[Chapter 28:01] (the Act) which provides as follows:
“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 Arbitral award exceeds the jurisdiction of any
Magistrates Court, the High Court.”
On
10 June 2014, the arbitrator, in terms of section 98(13) of the
Labour Act [Chapter 28:01], granted a certified copy of the award,
which certified copy is part of the papers before me.
The
application for the registration of the award is opposed.
Let
me state from the outset that section 98(15) of the Labour Act
[Chapter 28:01] also provides that:
“Where
an arbitral award has been registered, in terms of subsection (14),
it shall have the effect, for purposes of enforcement, of a civil
judgement of the appropriate court.”
Arbitrators
and the Labour Court have no enforcement mechanisms of their
awards/orders and hence the need to register same as orders of either
the Magistrate Court or High Court. This is purely for purposes of
enforcement. It is only when the award has been so registered that
the beneficiary can then enforce it, if the other party has not yet
complied.
Apart
from the need for a court order to be issued, the registration
process, in my view, is a mere administrative exercise. To that end,
I feel compelled to repeat, at length, what I said in Brian Maneka
and Ors v Manica Bus Company HH30-13. In that case, which was also an
application for the registration of an arbitral award, I said:
“I
do not believe that in providing for registration, for enforcement
purposes, the legislature envisaged a procedure where the applicant
would be denied the registration of a certified award as we normally
witness. My view is that the other party is at liberty to oppose the
process of execution or enforcement on any legal or reasonable
grounds.
Furthermore,
the other party can also seek interim relief in terms of section
92E(3) of the Labour Act which provides as follows:-
'Pending
the determination of an appeal, the Labour Court may make such
interim determination in the matter as the justice of the case
requires.'
In
Standard
Chartered Bank of Zimbabwe Ltd v Muganhu
2005 (1) ZLR 43 (S) MALABA JA, as he then was, said:-
'The
object of an interim determination made under section 97(4) of the
Act is to give a party in whose favour the determination appealed
against was made an interim right which he would otherwise not have
because of the noting of the appeal. It may also be to grant the
party against whom the judgment was made temporary relief from the
burden of the obligation imposed by the determination which he would
otherwise not have because of the appeal.'
The
above clearly indicates that upon an award being made, the parties
have equal choices.
The
registration of an award, in terms of the Labour Act, is, in my view,
a matter of course as long as the award remains enforceable or
unsatisfied.
In
casu, what is before the court is not a review or appeal process, but
a mere application for the registration of an award, which process, I
believe, can be done through a register in the High Court with a
certificate of registration being granted to the beneficiary of the
award.”
In
the same judgement, part of which I have quoted above, I agreed with
the view of CHIWESHE JP when, in Benson Samudzimu v Dairiboard
Holdings Ltd HH204-10, he said:
“Accordingly,
for as long as the arbitral award has not been suspended or set aside
on review or appeal, in terms of the Labour Act, there is no basis
upon which this court may decline registration of the same.”
If
indeed the applicant were to approach this court with evidence
proving that the award has been legally set aside, stayed, complied
with, awaits appeal in the Supreme Court, or does not sound in money,
this court would certainly not register it.
That
is not the case in casu, and, as such, I have no reason to refuse
registration of the award.
I
am aware that in Net One Cellular (Pvt) Ltd v Net One Employees &
Anor 2005 (1) ZLR (S)…, a case where an award had already been
registered by the High Court, the learned Chief Justice ruled that:
“When
the Labour Court dismissed the appeal the employer appealed to the
Supreme Court in terms of section 92D of the Act. The noting of that
appeal had the effect of suspending the judgement of the Labour Court
and the arbitrator's determination.”
In
line with the above, I would have certainly taken a different view of
the matter if evidence had been placed before me to confirm that the
Labour Court decision had indeed been appealed against in the Supreme
Court.
There
was no such evidence.
However,
given the fact that the applicant can still seek leave to execute
pending appeal, registration, in my view, remains necessary. If not
complied with, the award only becomes enforceable/executable upon
registration as a court order. I do not think the applicant should be
denied the right to apply for execution pending appeal. The applicant
can only do so if the award is registered as a court order.
It
was conceded that the respondent could, in law, stop the execution of
the registered award i.e. if it had grounds to do so. It was,
however, argued that such process would merely amount to a
multiplicity of actions. Be that as it may, I have no legal basis to
deny the applicant the relief that he seeks to exercise in terms of
the law. The law allows him to register the award granted by the
arbitrator.
I
must point out that, in casu, I am not seized with an appeal or
review of the award. In the main, the respondent's arguments were
an attack on the process that led to the granting of the award, which
award was also challenged on the merits. That is not what is before
me.
In
view of the foregoing, the application should succeed.
It
is ordered that:
1.
The Arbitral Award that was handed down by Arbitrator Mrs K Segula,
on the 10th
of
October 2013, be and is hereby registered as an order of this Court.
2.
The respondent shall pay costs of suit.
