Chamber
Application
BHUNU
J:
The
applicant was employed by the respondent as its Chief Executive
Officer.
On
27 October 2010 he obtained an arbitral award against the respondent
under the Labour Act [Cap 28:01] in the following terms:
“In
the final analysis therefore, I order that respondent pay the
claimant as follows:
1.
Backpay and benefits in the sum of US$19,384-09.
2.
Cash in lieu of leave.
3.
Sixty (60) months salary from 26 January 2010 as damages for loss of
employment in the sum of US$60,540-00.
4.
Sixty (60) months salary as punitive damages in the sum of
US$60,540-00.
5.
Interest at the prescribed rate.”
The
applicant has now filed the award for registration with this court in
terms of section 98(14) of the Act as a prelude to seeking payment of
US$140,464-09.
Despite
having been successful to a large extent, the applicant appealed to
the Labour Court against the award on the basis that the award was
inadequate and the respondent cross-appealed.
The
relevant section provides that:
“(14)
Any party to whom an arbitral award relates may submit for
registration the copy of it furnished to him in terms of subs (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.
(15)
Where an arbitral award has been registered in terms of subs (14) it
shall have the effect, for purposes of enforcement, of a civil
judgment of the appropriate court.”
The
respondent is resisting the registration on the basis that the
applicant cannot seek to enforce a judgment he has appealed against.
There
are two cardinal issues for determination in this application:
(i)
The first issue is whether the applicant is automatically as a matter
of right entitled to register an award upon satisfying the conditions
specified in section 98(14) of the Act.
In
order to qualify for registration all what an applicant has to do is
to satisfy the court that:
(a)
He is a party to the arbitral proceedings.
(b)
The award relates to him.
(c)
The copy he is presenting for registration has been duly certified by
the arbitrator in terms of subs (13).
Once
the applicant has satisfied the above three requirements he is
entitled as of right to register the arbitral award in terms of
section 98(14) as read with subs (13).
Any
opposition to registration is therefore limited to showing that the
applicant has not satisfied anyone or more of the three prescribed
requirements for registration.
Thus
the respondent can only succeed in opposing registration if he proves
on a balance of probabilities that:
(a)
The applicant is not a part to the proceedings.
(b)
The arbitral award does not relate to him.
(c)
The copy presented for registration is not a duly certified copy in
terms of subs (13).
In
this case the applicant has unquestionably managed to satisfy all the
three requirements for registration.
He
has shown without any contradiction that he is a party to whom the
arbitral award relates and that the copy he is presenting for
registration was duly certified by the arbitrator.
According
to the Thesaurus Dictionary the term register is interpreted to mean:
“list, record, catalog, roll index, inventory, chronicle or
schedule.”
Given
its ordinary and grammatical meaning by seeking registration of the
arbitral award the applicant is simply seeking at this stage the
conversion of the award into an order of this court to render it
capable of enforcement in terms of the rules of this court since the
Labour Court and related arbitration tribunals have no machinery for
enforcing their judgments.
While
it may be correct that at common law it is incompetent for one to
seek enforcement of a judgment or order one is appealing against as
articulated by STEEENKAMP AJP in Municipal & Allied Trade Union &
Ors v Mec: Environmental Affairs 1999 (4) SA 1999 (4) SA 26, for
purposes of registration of the arbitral award this legal principle
is inapplicable as it has no relevance to the registration process.
The
Labour Act does not provide for the suspension of the registration of
an arbitral award in terms of the Act and I know not of any law
statutory or otherwise that provides for the suspension of the
registration of an arbitral award pending appeal.
That
being the case, I can perceive no lawful reason why the applicant
cannot register the arbitral award he obtained against the respondent
on 27 October 2010.
Once
the arbitral award is registered, we immediately proceed to the
second stage where the court is enjoined to determine whether the
registered award is enforceable notwithstanding the pending appeal to
the Labour Court.
The
first issue for determination in this respect is whether the noting
of appeal by either party suspended execution of the arbitral award
pending the Labour Court's determination on appeal.
Section
92E of the Act regulates appeals to the Labour Court generally. It
provides that:
“92E
Appeals to the Labour Court generally
(1)
An appeal in terms of this Act may address the merits of the
determination or decision appealed against.
(2)
An appeal in terms of subs (1) shall not have the effect of
suspending the determination or decision appealed against.
(3)
Pending the determination of an appeal the Labour Court may make such
interim determination in the matter as the justice of the case
requires.”
The
Supreme Court has already ruled in the case of Sagittarian (Pvt)
Limited v Workers Committee, Sagittarian (Pvt) Limited 2006 (1) ZLR
115 that the provisions of section 97(4) now 92E do not apply to an
appeal made in terms of section 98 of the Act.
In
other words where an appeal is made in terms of section 98 there is
no express provision in the Labour Act to the effect that an appeal
shall not have the effect of suspending the determination or decision
appealed against.
There
being no such provision one has to turn to common law for an answer.
Van
Winsen, The Civil Practice of the Superior Courts in South Africa 3rd
Ed at p643 states that:
“At
common law the execution of all judgments is suspended upon the
noting of an appeal. The foundation of this rule is to prevent
irreparable damage from being done to the intending appellant,
whether such damage be done by a levy under a writ or by the
execution of the judgment in any other manner appropriate to the
nature of the judgment appealed from but by statutory instrument or
rule of court the trial court is usually empowered, upon application
being made to it to exercise a discretion in ordering execution of a
judgment appealed against subject to security.” (My emphasis)
The
learned author goes on to clarify the apparent confusion introduced
by MUNGWIRA J in the case of Founders Building Society v Mazuka (1)
ZLR 526 531 in which she quoted GILLESPIE J with approval in the case
of Vengesai & Ors v Zimbabwe Glass Industries 1998 ZLR 593 (H) at
598 suggesting that the common law rule that an appeal suspends the
decision appealed against is limited to superior courts of unlimited
jurisdiction.
In
that case GILLESPIE J had this to say:
“In
stating the common law, CORBETT JA referred to the automatic stay of
execution upon the noting of appeal, as a general rule of practice.
That is, not a rule of law, but a long established practice regarded
as generally binding, subject to the court's discretion. The
concept of a rule of practice is peculiarly appropriate only to
superior courts of inherent jurisdiction. Any other court, tribunal
or authority is a creature of statute and bound by the four corners
of its enabling legislation. Moreover, the authorities cited by
CORBETT JA are authorities relevant to appeals from superior courts.”
At
p719 the learned author however, goes on to say the rule applies to
all adjudicating authorities without exception including the
magistrate's court. He then states that:
“When
a magistrate's court makes no order in terms of the above
provisions, the ordinary common law rules govern the matter, and
execution is automatically suspended by the noting of an appeal.”
The
Magistrate's Court being an inferior court of limited jurisdiction
it cannot be treated differently from the Labour Court.
Thus
the noting of the appeal to the Labour Court in terms of section
98(10) of the Act automatically suspended the arbitral award appealed
against.
It
is however common cause that the applicant did not appeal against the
whole determination of the arbitrator. He merely appealed for a
higher award than that granted by the arbitrator.
That
conduct does not in my view amount to an appeal against or rejection
of the lesser amount granted by the arbitrator. It stands to reason
that an appeal for more does not without more constitute a rejection
of the lesser amount already given.
In
the case of Phiri & Ors v Industrial Steel and Pipe (Pvt) Ltd
1996 (1) ZLR 45 (S) the Supreme Court reaffirmed the common law
position to the effect that in the absence of statutory provisions to
the contrary, an appeal to the Labour Tribunal now the Labour Court
suspends the decision appealed against.
The
Supreme Court was however careful and quick to point out that where a
litigant has only appealed against a portion of a judgment the
suspension only applies to that portion of the judgment appealed
against. It does not extend to portions not appealed against.
The
applicant's appeal against the non award of more damages than those
awarded by the arbitrator has therefore no bearing on the amount
granted by the arbitrator. The amount granted by the arbitrator is
therefore subject to the universal common law rule that an appeal
suspends the decision appealed against.
Section
98(15) however, states that where an arbitral award has been
registered in terms of subs (14) it shall have the effect, for
purposes of enforcement, of a civil judgment of the appropriate
court.
What
this means is that upon registration with this court an arbitral
award is converted into a civil judgment of this court for purposes
of enforcement only.
That
being the case, this court has the power upon proper application to
determine in terms of the High Court Rules whether or not execution
should be effected notwithstanding the noting of appeal to the Labour
Court.
In
the result it is ordered:
1.
That the application for registration of the arbitral award granted
to the applicant by the arbitrator on 27 October 2010, be and is
hereby granted.
2.
That the noting of appeal to the Labour Court in terms of section 98
of the Labour Act [Cap 28:01] suspended the determination of the
above arbitral award pending appeal.
3.
That the applicant shall not execute the registered arbitral award
without leave of this court to execute the arbitral award pending
appeal.
4.
That as both parties have been equally successful there is no order
as to costs.
Mbidzo
Muchadehama & Makoni, applicant's legal practitioners
Honey
& Blankenberg, respondent's legal practitioners
