The registration of an arbitral award does not in any way affect the substantive rights of the parties concerned. The purpose of registration is merely to facilitate the enforcement of such an order through the mechanism availed to the High Court or the Magistrates' Court namely, the office of the Deputy Sheriff or the Messenger of Court, respectively. Thus, whether registered or not, an arbitral award remains binding on the parties, who may fulfil its terms, even in the absence of registration.

Once a certificate is given confirming an arbitral award, there is no impediment to its registration as an order of this court in terms of section 98(14) of the Labour Act [Chapter 28:01].

The applicant is a company duly registered in terms of the laws of Zimbabwe. The second respondent is its employee with whom it has had labour disputes leading to this application.

The second respondent was suspended from employment pending the resolution of the dispute between her and her employer.

The first respondent is an arbitrator who was duly appointed to arbitrate in the labour dispute between the applicant and the second defendant.

The applicant and the second respondent filed written submissions with the first respondent.

The first respondent thereafter called them for a hearing which was not finalised. He called them again to clarify the issue of whether or not the second respondent had secured employment during the period of her suspension.

On 26 June 2007, while counsel for the second respondent was making submissions at the hearing, the first respondent said the second respondent had “told him about how she suffered during the years.” The applicant's counsel asked him to clarify where this conversation took place, but the first respondent did not respond to that inquiry.

That hearing was adjourned without a clarification of the first respondent's comments.

The applicant's counsel followed it up by letter to the second respondent's counsel dated 27 June 2007. The letter was copied to the first respondent. It reads as follows:

“We refer to the arbitration hearing before Mr Gabilo on 26 June 2007.

As you will no doubt be aware, the arbitrator made some remarks indicating that he had granted audience to the claimant and heard certain evidence from the claimant outside the framework of a hearing. The writer sought an explanation as to how this had occurred and the arbitrator gave no response.

Our client is concerned that the arbitrator may have acted improperly as a result of which his impartiality may be in doubt. In this regard, the respondent is entitled to impeach the arbitrator and have the matter referred to another arbitrator.

Please can we have your client's explanation in this regard not later than 29 June 2007.”

The second respondent's counsel did not respond within the stipulated period. The first respondent did not respond even though the letter was copied to him.

The applicant's counsel then wrote to the first respondent on 4 July 2007. The letter reads as follows:

“We refer to our letter of 27 June 2007 addressed to the claimant's legal practitioners and copied to you. We have not heard from the claimant's legal practitioners.

Our client has instructed us, in the circumstances, to address its request for your recusal as arbitrator in this matter on the grounds that the respondent entertains serious doubts as to your impartiality or independence as arbitrator. As indicated in our letter of 27 June 2007, the respondent believes that you have entertained representations from the claimant outside the framework of the arbitration hearing. When we requested that you explain the circumstances in which the claimant had made representations to you, you did not answer that question.

In the circumstances, the respondent seeks your recusal as arbitrator immediately.

Accordingly, you are to refer the matter to the Labour Officer who referred the matter to you for a fresh appointment of an arbitrator. Regrettably, should you not recuse yourself, the respondent shall seek the intervention of the High Court.”…,.

The first respondent did not respond to the challenge, but proceeded to make an award without first rejecting the challenge.

The applicant thereafter applied to this court for an order terminating the first respondent's mandate to arbitrate, and ordering that fresh arbitration proceedings be held within a fortnight.

The applicant is being represented by Mr Shoko, the Group Chief Executive of Trust Holdings Limited. The applicant is a subsidiary of Trust Holdings.

The first respondent did not oppose the application.

The second respondent opposed the application, and raised two points in limine:

(i)...,.

(ii) She also claimed that the applicant's application does not comply with the provisions of Article 13 of the Arbitration Act [Chapter 7:15] (hereinafter called “the Act”)....,.

Compliance with Article 13 of the Arbitration Act

Counsel for the second respondent also raised the issue of procedure arguing that the applicant's application does not comply with Article 13 of the Arbitration Act. He submitted, that, in terms of Article 13(1), the parties should have agreed on the procedure to be used in challenging the arbitrator. He also submitted that the notice of challenge was defective because no evidence was attached to it. He therefore argued that the application does not comply with the procedure through which a challenge to the arbitrator's appointment can be brought to this court.

He further submitted that the arbitrator has already made his award, and, in the circumstances, the applicant should have proceeded in terms of Article 34 of the Arbitration Act.

He submitted that the applicant could not apply to this court in terms of Article 13 of the Arbitration Act because the parties had not agreed on the procedure for challenging the arbitrator.

Counsel for the applicant argued that the application was properly made in terms of Article 13 of the Arbitration Act, as failure to agree on the challenging procedure is not a bar to any challenge arising from what happens during the arbitral proceedings. He further submitted that the letter to the first respondent contains all the information which should be in a statement of challenge and should therefore be accepted as a valid challenge to the arbitrator.

Article 13 of the Arbitration Act [Chapter 7:15] provides as follows:

“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of para (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in Article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of para (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the High Court to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”

The wording of paragraph (1) of Article 13 of the Arbitration Act favours counsel for the applicant's interpretation.

It states that the parties are free to agree on a procedure for challenging the arbitrator. It does not say that they have to.

It further states that the provision is subject to paragraph (3) of this Article. Article 13(3) mentions two procedures which can be used for challenging the arbitrator:

(i) They can use the agreed procedure; or

(ii) The procedure prescribed by paragraph (2). Article 13(2) provides for a procedure to be followed if the parties do not agree on a procedure to be followed. It specifically states that “failing such agreement, a party who intends to challenge an arbitrator shall…,.”

This means that paragraph (2) procedure is an alternative procedure to be used if the parties do not agree on the procedure to be used.

I would therefore agree with counsel for the applicant that the application does not depend on whether or not the parties agreed on the challenging procedure. It, in my view, depends on whether or not the applicant correctly followed the procedure prescribed by paragraph (2) of Article 13 of the Arbitration Act.

An analysis of Article 13(2) of the Arbitration Act reveals the requirements which should be complied with before a party can request this court to decide on a challenge. They are as follows:

1. The party who seeks to challenge the arbitrator must, within fifteen days of becoming aware of the reason for the challenge;

2. Send to the tribunal or arbitrator a written statement;

3. Stating the reasons for the challenge;

4. The challenged arbitrator can withdraw from his office, or the other party can agree to the challenge; and

5. If the arbitrator does not withdraw, and the other party does not agree with the challenge, then the arbitrator must decide on the challenge.

In terms of Article 13(3) of the Arbitration Act, the rejection of the challenge by the arbitrator leads to the following:

1. The challenging party may, if he is not satisfied by the rejection;

2. Within thirty days of the rejection, request the High Court;

3. To decide on the challenge.

While the challenge is pending in the High Court, the challenged arbitrator or tribunal can continue with the arbitral proceedings and make an award.

In this case, the arbitrator did not respond to the challenge, but proceeded to make an award without dealing with the challenge.

In terms of Article 13(2) of the Arbitration Act, he was bound to decide on the challenge.

Counsel for the applicant argued that, that entitles this court to hear the applicant's application.

Counsel for the second respondent argued that once the award is made it can only be set aside by the High Court in terms of Article 34(2)(b)(ii) of the Arbitration Act.

As already indicated, the procedure under Article 13(2) of the Arbitration Act does not require the parties to first agree on the challenging procedure. The words “failing such agreement” in Article 13(2) means in the absence of an agreement. The applicant's application cannot therefore be dismissed just because the parties had not agreed on the challenging procedure.

The application must however comply with the alternative procedure under Article 13(2) and (3) of the Arbitration Act, which requires the applicant to, within fifteen days of becoming aware of the circumstances on which the challenge is premised, to send a written statement to the tribunal in which the reasons for the challenge will be stated.

Counsel for the second respondent submitted that the applicant's statement was not accompanied by reasons for the challenge. Counsel for the applicant submitted that the letter the applicant wrote to the arbitrator satisfies the requirements of Article 13 of the Arbitration Act.

I agree with counsel for the applicant, as a reading of the Article gives the impression that what is required is a simple statement which informs the tribunal or arbitrator of the reasons why its or his recusal is being sought.

If the intention was for the challenging party to submit an application accompanied by an affidavit in which the reasons for recusal would be stated the legislature would have required the challenging party to apply for recusal instead of sending a statement.

The letter to the first respondent clearly states why his recusal was being sought. It therefore satisfies the requirements of Article 13 of the Arbitration Act. I am therefore satisfied that the applicant's application cannot be dismissed for failure to give separate reasons for the arbitrator's recusal.

On receipt of a challenge, the arbitrator can either withdraw from his office or decide on the challenge.

The other party can agree to the challenge in which case the arbitrator cannot proceed with the arbitration proceedings.

The tribunal or arbitrator cannot ignore the challenge and proceed with the arbitral proceedings as if its or his appointment has not been challenged.

If the challenge is not successful, the challenging party must, within thirty days of receiving the arbitrator's determination on the challenge, request the High Court to decide the challenge.

In this case, the applicant sent a statement of his challenge to both the arbitrator and the other party within the stipulated period. The other party did not agree, and the arbitrator did not respond.

Article 13(3) of the Arbitration Act does not provide for an application to this court until after the arbitrator has given the challenging party notice of his decision rejecting the request to recuse himself.

This therefore means the applicant's application does not comply with the provisions of Article 13(3) of the Arbitration Act [Chapter 7:15].

The Arbitrator has already made an award which the applicant wants to be declared null and void because of the alleged impartiality.

Article 13(2) and (3) of the Arbitration Act permits the arbitrator to continue with the proceedings in spite of the challenge which he will have rejected and the challenging party's request that the High Court determines the challenge.

In this case, he proceeded without first rejecting the applicant's challenge.

This was an irregularity on his part as Article 13(3) of the Arbitration Act allows an arbitrator to continue with the proceedings after notifying the challenger of the rejection of the challenge.

Counsel for the applicant submitted that the award should be set aside on the basis that it does not even deal with the challenge.

I agree with him that the arbitrator was required to deal with the challenge before proceeding with the proceedings before him, but, the issue in this case is whether or not the applicant is properly before this court.

This court can, in terms of Article 13(3) of the Arbitration Act, only decide on a challenge after its rejection by the arbitrator.

In this case, the failure by the arbitrator to reject the challenge before making the award makes the Article 13 procedure inapplicable, as this court can only be requested to intervene when the challenge has been rejected.

I am therefore satisfied that counsel for the second respondent's submission, that the applicant is not properly before this court, is correct.

The applicant is however not without a remedy.

Counsel for the second respondent correctly pointed out that in the circumstances of this case the applicant should have applied for the setting aside of the award in terms of Article 34(2)(b)(ii) of the Arbitration Act.

The applicant could ordinarily have taken the arbitrator's failure to decide on the challenge on review, but, Article 5 of the Arbitration Act [Chapter 7:15] provides that “no court shall intervene except where so provided in this Model Law.”

This means this court's intervention in terms of Article 13 of the Arbitration Act must be strictly in compliance with the provisions of that Article.

The Arbitration Act does not provide for review, and, Article 34(1) of the Arbitration Act provides that an application to set aside is the only available remedy.

Article 34(1) of the Arbitration Act [Chapter 7:15] provides as follows:

“Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paras (2) and (3) of this article.”

This means, in the circumstances of this case, an application in terms of Article 34(1) of the Arbitration Act is the only procedure through which the applicant can seek a remedy from this court.

Article 34(2)(b)(ii) of the Arbitration Act provides for the setting aside of the award on the ground that it is contrary to the public policy of Zimbabwe. Article 34(5) defines the circumstances under which an award can be said to be contrary to the public policy of Zimbabwe. It provides as follows;

“For the avoidance of doubt, and without limiting the generality of para (2)(b)(ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if -

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

The applicant's grounds for applying for the recusal of the first respondent, and the setting aside of his award, is that he heard submissions from the second respondent outside the arbitral proceedings.

That, if proved, would be contrary to the rules of natural justice and entitle the applicant to the setting aside of the award in terms of Article 34 of the Arbitration Act.

I am therefore satisfied that the applicant should, in the circumstances of this case, have applied for the setting aside of the award in terms of Article 34(2)(b)(ii) of the Arbitration Act. Its application, in terms of Article 13 of the Arbitration Act [Chapter 7:15] must therefore be dismissed.

In the result, the applicant's application is dismissed with costs.

In this matter, the applicants, all employees of the respondent company, had a grievance concerning non-payment of wages. The parties went for arbitration and an award was made in favour of the applicants on 14 November 2010.

The applicants now seek to register the award with this court.

The arbitral award reads as follows-

“6. Award

Wherefore, after hearing this case, I make the following order.

1. That the employer had partially fulfilled what was arrived and agreed at the conciliation stage at the Ministry of Labour which culminated in a Certificate of Settlement.

2. The respondent pays all outstanding salaries by end of February 2010; in the event that respondent fails to pay by that date that it pays with interest at the prevailing bank rates.

3. That both parties share the cost of this arbitration.”

This application is made in terms of section 98(14) of the Labour Act [Chapter 28:01] which provides as follows-

In the present application, the applicant seeks to register an arbitral award with this court in terms of section 98(14) of the Labour Act [Chapter 20:01].

The respondent opposes the application on the basis that the arbitral award offends public policy in terms of Article (section) 34 and 36 of the Arbitration Act…,.

I have…, taken the liberty to consider the heads of argument filed by the respondent under case 5560/10 for purposes of determining the present application. I agree with the applicant that the extent to which the provisions of the Arbitration Act are applicable in labour matters is governed by section 98 of the Labour Act [Chapter 20:01]. Section 98(2) of the Labour Act [Chapter 20:01] provides -

“Subject to this section the Arbitration Act [Chapter 7:15] shall apply to a dispute referred to compulsory arbitration.”

Section 98 of the Labour Act [Chapter 20:01] provides for, inter alia, the referral of matters to compulsory arbitration, the appointment of arbitrators, appeals against decisions of arbitrators, reviews and other remedies. These provisions are detailed and comprehensive. Clearly it could not have been the intention of the legislature that parties aggrieved by the decision of an arbitrator in a labour dispute seek remedy in terms of section 34 or 36 of the Arbitration Act [Chapter 7:15].

I agree with the applicant that the correct interpretation would be that, with regards the law, the Labour Act [Chapter 20:01] takes precedence over the Arbitration Act [Chapter 7:15] and any other enactment.  The intention of the legislature was to have all labour matters initiated and resolved to finality in terms of the Labour Act [Chapter 20:01]. Equally, the legislature must have intended that such matters be dealt with by the Labour Court to the exclusion of any other court. Sections 34 and 36 of the Arbitration Act [Chapter 7:15] are not applicable in cases where the award sought to be challenged relates to a labour dispute. The mechanisms for challenging such awards are provided for in the Labour Act [Chapter 20:01] and may be accessed through the medium of the Labour Court.

This is an application for the registration of an award issued in favour of the applicants under the Labour Act [Chapter 28:01] on 30 March 2010. The registration is sought in terms of section 98(14) of the Labour Act [Chapter 28:01].

The respondent opposes the granting of the relief being sought.

The background to this dispute is as follows. The applicants were employed by the respondent on the basis of written contracts which determined the terms and conditions of their employment. The contracts were then terminated by the respondent and the dispute was referred to N.A. Mutongoreni, an arbitrator, who made an award in favour of the applicants on 31 August 2007. The terms of his award were as follows -

“1. First issue in dispute is answered as follows:

The contracts of employment between the respondent and complainants were not terminated in accordance with the provisions of the contracts of employment between the parties.

2. Second issue in dispute is answered as follows:

Complainants had a legitimate expectation for the automatic renewal of their respective contracts of employment.

3. Third issue in dispute is answered as follows:

Complainants were unfairly dismissed.

4. Fourth issue in dispute is answered as follows:

Contracts of employment should be deemed automatically renewed on the same conditions with effect from 1 July 2007.

5. Fifth issue in dispute is answered as follows:

Contracts of employment were unlawfully terminated.

6. Sixth issue in dispute is answered as follows:

Complainants must be deemed to be under respondent's employment from the date of the purported termination to the date of this arbitration i.e. 31 August 2007 (being a period of two months).”

Aggrieved by the award the respondent noted an appeal to the Labour Court which, again, found in favour of the applicants and dismissed the appeal. The dispute was then referred to another arbitrator for the determination of salaries and benefits payable to the applicants. The arbitrator, Mr. Matsikidze, then made an award on 31 March 2010 which is the subject matter of the dispute before me.

The second issue raised in the opposing affidavit was that the respondent had applied to the Labour Court for an order staying execution of the arbitral award. The applicants have attached to the answering affidavit filed on their behalf an order issued by the Labour Court on 17 May 2010 refusing the application for an order for a stay of execution.

The opposing affidavit did not touch on any other ground for opposing the grant of the order sought before me.

In the heads of argument filed before this court, counsel for the respondent submitted that if the award were enforced the respondent would be practically deprived of a right to challenge the content of the award despite the fact that the respondent is entitled to such challenge. He submitted, further, that this court is entitled to look into the content of the award itself and in this regard he adverted to the appeals pending in the Labour Court. He cited Pamire & Ors v Dumbutshena NO & Anor 2001 (1) 123 (H). It is a judgment by MAKARAU J…,. The passage referred to me…., reads as follows -

“…,.To therefore grant the full reward in the absence of complete performance by the second respondent does make justice turn on its own head in my opinion. It is a violation of Zimbabwe's notion of elementary justice and constitutes a palpable inequity that would hurt the conceptions of justice in Zimbabwe. Justice in Zimbabwe ought to be conceived as fair, even-handed and non-discriminatory between the rich and poor. To recognize the award would have the effect of dispelling this notion.”

Counsel for the respondent, in pursuing his argument, further submitted that in terms of Article 36(1)(b)(ii) this court should refuse to register the award on the basis that it is contrary to public policy. He contended, further, that once there were unfair provisions in the award that would be contrary to public policy and the award could not stand that test. He argued that the arbitrator had wrongly read the judgments and had ruled that the applicants would be deemed as the respondent's employees until their contracts were lawfully terminated.

When Mr. Matsikidze determined the level of salaries and benefits due to the applicants he stated as follows -

“The question I used to ask myself is; what did the Labour Court rule in this particular case? Clearly, from the paragraph quoted above, the Labour Court made it clear that these employees remain employees of the respondent 'until their contracts were lawfully terminated.' The question which naturally follows is: “Are the contracts in question lawfully terminated? The answer is no. In that regard, my hands are tied. I cannot alter the judgment of the Labour Court. What I can simply do is to interpret or effect its meaning. In that view, my task will be to determine salaries and benefits up to the date of lawful termination.”

Clearly, the status of the employees, vis-à-vis their employer, was not determined by the arbitrator whose award is before me, but by N.A. Mutongereni on 31 August 2007 and confirmed by the Labour Court on 12 March 2009. The pertinent paragraph in the judgment reads thus -

“What are the terms and conditions referred to herein? Obviously, the arbitrator is referring to the same terms and conditions of the contracts of employment previously signed by the respondents. In those contracts the appellant is obliged to give 90 days' notice should appellant intend to terminate contracts due to lack of funding. Therefore, paragraph 6 of the award cannot be interpreted to mean what the appellant submitted, that the respondents were only reinstated for two months. The arbitrator was only emphasizing that respondents are deemed to have been in appellant's employment for the past two months. The contracts were renewed for 12 months. I am not satisfied, therefore, that appellant has complied with the arbitrator's ruling. Appellant has not complied with the arbitrator's ruling as appellant has not re-instated respondents neither has appellant been paying respondents' salaries.”

The respondent herein was not happy with the judgment of the Labour Court and sought leave to appeal which leave was denied on the basis that it was approaching the court with dirty hands due to non- payment of the award by the arbitrator and refusal to re-instate the applicants….,.

Counsel for the respondent contended that the arbitrator had wrongly read judgments and had consequently, ruled that the applicants would be deemed as the respondent's employees until their contracts were lawfully terminated. He further complained that the arbitrator had then awarded what he deemed to be arrear salaries and future salaries instead of assessing damages that would result from a finding that a contract had been unlawfully terminated. He submitted that that finding on its own was patently wrong in two respects – firstly that it had never been in dispute that the contracts were fixed term contracts and that when the Labour Court ruled that they were deemed renewed it could not have been for a period exceeding twelve months. He further submitted that the arbitrator has not indicated on the award that he reminded himself, or took into account, that the applicants had an obligation to mitigate damages. He contended that if an arbitrator ignores or disregards a provision of law such award may not be enforced. For this proposition he referred me to Delta Operations (Pvt) Ltd v Origen Corporation (Pvt) Ltd SC86-07.

In opening his submissions counsel for the respondent made reference to Article 36(1)(b) which enforces a court to refuse to register an arbitral award if the court finds that –

“(i) …,.

(ii) The recognition or enforcement of the award would be contrary to the public policy of Zimbabwe.”

This sub-clause should be read with Article 36(3) which provides -

“For the avoidance of doubt and without limiting the generality of para (1)(b)(ii) of this article, it is declared that the recognition or enforcement of an award would be contrary to the public policy of Zimbabwe if –

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred with the making of the award.”

As stated earlier, this defence of public policy was not pleaded by the respondent, but, even in his submissions, counsel for the respondent did not mention fraud, corruption or the violation of the rules of natural justice.

Article 36(3) does not, however, limit the court to these grounds in determining the issue of the defence of public policy. The manner in which I understood counsel for the respondent's argument is that he was alluding to error on the part of the arbitrator.

The question then is whether the alleged error alluded to by counsel for the respondent can be such as to cast the award as one contrary to the public policy of Zimbabwe.

The meaning of the phrase “contrary to public” was extensively discussed by GUBBAY CJ in Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S). This is what the learned CHIEF JUSTICE stated…,-

“What has to be focused on is whether the award, be it foreign or domestic, is contrary to the public policy of Zimbabwe. If it is, then it cannot be sustained no matter that any foreign form would be prepared to recognize and enforce it.”

In my opinion, the approach to be adopted is to construe the public policy defence, as being applicable to either a foreign or domestic award, restrictively in order to preserve and recognize the basic objectivity of finality in all arbitrations; and to hold such defence applicable only if some fundamental principle of the law or morality or justice is violated. This is illustrated by dicta in many cases, of which the following are impressive:

In Paktila Investment Ltd v  Klockner East Asia Ltd reported in (1994) 19 Yearbook of Commercial  Arbitration 664, the Supreme Court of Hong Kong remarked…,-

“The public policy defence is construed narrowly and I deprecate any the attempt to wheel it out on all occasions. As the US Court of Appeals for the Second Circuit said in Parsons & Whittemore v RAKTA 508 F 24 969 (2d Cir 1974):

'…, the convention's public defence should be construed narrowly. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum State's most basic notions of morality and public justice.'…,.

Similarly, in Leopold Lazarus Ltd (UK) v Chrome Resources SA (Switz), reported in (1979) 4 Yearbook of Commercial Arbitration 311, the Court de Justice, Canton of Geneva, at 312 underscored that before the defence of public policy can be upheld:

'There must be a violation on fundamental principles of the Swiss legal order, hurting intolerably the feeling of justice…,. This exception of public order should not be twisted in order to avoid application of international conventions which are signed by Switzerland and which form part of Swiss law…,.'”

Finally, in Remisager Power Co Ltd (India) v General Electric Co (US) reported in (1995) 20 Yearbook of Commercial Arbitration 681, the Supreme Court of India…, concluded that enforcement of an award-

“….,.would be refused on the grounds that it is contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality.”

The difficulty then, is not with the formulation of an appropriate and acceptable test. It is with the application of that test in an endeavour to determine whether the arbitral award should be set aside or the enforcement of it denied, on the ground of a conflict with the public policy of Zimbabwe.

I am conscious, as emphasized by SIR MICHAEL KERR in his article entitled “Concord and Conflict in International Arbitration” published in (1997) 13 Arbitration International 121…, that -

“In most countries, the spirit of the New York convention has rightly been upheld to require what a US Circuit Court of Appeals has referred to as 'etc general pro-enforcement bias.'”

In casu, the effect of an enforcement of the arbitral award will be to allow Maposa to take advantage of a position that he deliberately engineered. Counsel for Zesa submitted that this “turns justice on its head”; the error of the arbitrator being so fundamental as to make a refusal to set aside the award, or, to permit the enforcement of it, a violation of Zimbabwe's elementary notions of justice.”

Counsel for the respondent argued that the arbitrator had awarded arrear salaries and future salaries instead of damages.

This court is not, in this instance, sitting as a court of appeal to adjudicate the correctness or erroneous nature of the reasoning of the arbitrator. Its task is to consider whether the award by the arbitrator is one that should not be registerable having regard to the requirements of Articles 34 and 36 of the Arbitral Act. I am persuaded that an award by an arbitrator is not contrary to public policy merely because the arbitrator was wrong in law or in fact in reaching the conclusion that he arrived at. It is also clear from an examination of the papers that the respondent has not placed before the court the basis upon which it seeks to rely on the defence of public policy under the Arbitration Act. This court would only intervene and uphold the defence of public policy where it is established that “the reasoning or conclusion in the award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far-reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible and fair-minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award;” per GUBBAY CJ in Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S).

The courts in this country have construed the defence of public policy very restrictively so that the objective of finality to arbitration is achieved. It follows, therefore, that the grounds upon which an award may be set aside or those on which a court may refuse to register the award are very narrow. Whether or not the arbitrator erred is not an issue that should concern this court in deciding whether or not the award should be registered in terms of the statutory provisions providing for registration. The issue to be decided is whether or not the respondent has shown that its registration would be contrary to the public policy of Zimbabwe, and, in my view, the respondent, apart from a mere bald statement, has not shown that it would be. The respondent referred me to Delta Operations (Pvt) Ltd v Origen Corporation (Pvt) Ltd SC86-07…, which re-affirmed the principles that had been set out by GUBBAY CJ in the case of Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…,. He did not advance any cogent argument as to how the authority he cited supported the defence that was proffered on behalf of the respondent. There had been no facts placed before the court on which legal argument supporting the defence could then be premised.

In my view, the point raised by counsel for the applicants that the defence had not been pleaded had merit as the defence lacked foundation and could not be advanced further than to argue error on the part of the arbitrator.

I find, therefore, that the respondent has not established that the reasoning by the arbitrator was so outrageous in its defiance of logic and acceptable moral standards as to lead me to conclude that an injustice was done to the respondent. I find, consequently, that registration of the award is not contrary to public policy.

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 21^st 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].

This is an application for the registration of an arbitral award. The application is opposed.

The first applicant was an employee of the respondent and was laid off from employment in 2009 without benefits. The applicant, together with other employees who are not before the court, approached an arbitrator through the Labour Court. That approach appears to have led to referral to compulsory arbitration in terms of the Labour Act [Chapter 28:01].

On 11 February 2011, the arbitrator made an award in favour of the applicant and his fellow employees. In terms of the said award, the respondent was ordered to pay a total of US$40,103=81 in respect of benefits covering the applicant and other former employees. Under the award, the first applicant was to be paid as follows:-

“5) Brian Muneka Senior Inspector Grade (8D) $50-87/wk

Period of engagement March 1999 to October 2009

a) Notice pay 3 months' salary                                             $220=41 x 3months

              =$661=23

b) Leave days Due 3 years                                                  $66 days x $8=47

              =$559=02

c) Employee was paid 43=33/month instead of $220=41/month giving a shortfall

  $177=08 x 17months

=$3,010=36

d) Housing allowance from October 2009 at $25=/Mnth x 10 months   $250=.

e) Transport allowance from Feb 2009 to October 2009 at $25=/month x 10 months $250=.

f) Damages for loss of employment (2) month's salary for every completed year giving a total of 20 months' salary thus                                                                  $220=44 x 20 months

                                                                                               =$4,408=20

g) Gratuity for 10 years                                                          $220=41 x 15% 10yrs.

                                                                                      =$330=61                                                                                                                                        

h) Unpaid off days = 24 days (At Time and half)                    $12=70 x 24

                                                                                           =$304=80

Total                                                                                      =$9,774=22.

The respondent was served with the award in March 2011 but has not yet paid the amount owing to the first applicant.

The respondent, in its opposing papers, avers that the company collapsed when negotiations to settle with the first applicant were in progress…,. The respondent also disputed the quantification of the amount owing to the first applicant.

The respondent is correct in saying this application is being made in terms of section 98(14) of the Labour Act [Chapter 28:01] and section 98(15) of the Labour Act [Chapter 28:01]. Section 98(14) of the Labour Act [Chapter 28:01] and section 98(15) of the Labour Act [Chapter 28:01] provide as follows:-

“(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 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.”

In his founding affidavit, the first applicant clearly states that he approached the arbitrator through the Labour Court. The award was certified in terms of the Labour Act [Chapter 28:01]. I therefore believe the arbitrator was appointed in terms of the Labour Act [Chapter 28:01].

True, the arbitrator makes reference to Article 35 of the Arbitration Act [Chapter 7:15] with respect to the enforcement of his award. However, if the matter was referred to him in terms of the  Labour Act, as reflected in the founding affidavit, then the correct provision of the law applicable is section 98(14) of the Labour Act [Chapter 28:01]. This was compulsory arbitration. There is no averment to the effect that registration is being sought in terms of Article 35 of the Arbitration Act [Chapter 7:15] which provides as follows:-

“(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding and, upon application in writing to the High Court, shall be enforced subject to the provisions of this article and of article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation in the English language.”

I agree that in terms of section 98(2) of the Labour Act [Chapter 28:01], the procedures provided for in the

Arbitration Act [Chapter 7:15] applies to labour disputes referred to compulsory arbitration. Section 98(2) of the Labour Act [Chapter 28:01] provides as follows:-

“(2) Subject to this section, the Arbitration Act [Cap 7:15] shall apply to a dispute referred to compulsory arbitration.”

I believe the above attaches mainly to arbitration procedures and therefore, in casu, the relief sought is clearly in terms of section 98(14) of the Labour Act [Chapter 28:01] and section 98(15) of the Labour Act [Chapter 28:01].

In view of the above, I take the position that the reasons for opposing the registration of an award granted in terms of the Labour Act [Chapter 28:01] are not necessarily those stipulated in the Arbitration Act [Chapter 7:15]. Voluntary awards granted in terms of the Arbitration Act [Chapter 7:15] are governed by the provisions of the Arbitration Act [Chapter 7:15], and, in like manner, awards granted through compulsory arbitration in terms of the Labour Act [Chapter 28:01] are governed by the provisions of the Labour Act [Chapter 28:01]. That is why the respondent says it has approached the Labour Court for redress.

In Benson Samudzimu v Dairiboard Holdings Ltd HH204-10, CHIWESHE JP said -

“Section 98 provides for, inter alia, the referral of matters to compulsory arbitration, the appointment of arbitrators, appeals against decisions of arbitrators, reviews and other remedies. These provisions are detailed and comprehensive. Clearly, it could not have been the intention of the legislature that parties aggrieved by the decision of an arbitrator in a labour dispute seek remedy in terms of s34 or 36 of the Arbitration Act.

I agree with the applicant that the correct interpretation would be that, with regards the law, the Labour Act takes precedence over the Arbitration Act and any other enactment. The intention of legislature was to have all labour matters initiated and resolved to finality in terms of the Labour Act. Equally, the legislature must have intended that such matters be dealt with by the Labour Court to the exclusion of any other court.

Sections 34 and 36 of the Arbitration Act are not applicable in cases where the award sought to be challenged relates to a labour dispute. The mechanisms for challenging such awards are provided for in the Labour Act and may be accessed through the medium of the Labour Court. No other court has jurisdiction to entertain such matters.

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.”

I fully agree with the above enunciation of the legal principles involved.

In terms of the Labour Act [Chapter 28:01], the registration an arbitration award envisaged under section

98(14) of the Labour Act [Chapter 28:01] is for purposes of enforcement only. (See section 98(15) of the Labour Act [Chapter 28:01]) …,. The same applies to a decision, determination or order of the Labour Court registered with this court in terms of section 92B of the Labour Act [Chapter 28:01]. (See section 92B(4) of the Labour Act [Chapter 28:01]…,.). The award or order, in my view, remains an award/order of the Labour Court and is to be managed and controlled in terms of the Labour Act [Chapter 28:01]. That is why the Labour Court can vary or amend such an order - even after it has been registered with this court.

The award is only registered with this court simply because the Labour Court has no enforcement mechanism for its orders.

Sections 92B(3)(4) and (5) of the Labour Act [Chapter 28:01] provide as follows:-

“(3) Any party to whom a decision, order or determination relates may submit for registration the copy of it furnished to him in terms of subs (2) to the court of any magistrate which would have had jurisdiction to make the order had the matter been determined by it, or, if the decision, order or determination exceeds the jurisdiction of any magistrates court, the High Court.

(4) Where a decision, order or determination has been registered in terms of subs (3) it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.

(5) If any order which has been registered in terms of subs (4) has been rescinded or altered by the Labour Court, in terms of section ninety-two C, the clerk or registrar of the court concerned shall make the appropriate adjustment in his register.“

The above, in my view, applies to all arbitral awards obtained through compulsory arbitration in terms of the Labour Act [Chapter 28:01]. This is so because section 98(9) of the Labour Act [Chapter 28:01] gives the arbitrator the same powers as the Labour Court in determining a labour dispute. Section 98(9) of the Labour Act [Chapter 28:01] provides as follows:-

“(9) In hearing and determining any dispute, an arbitrator shall have the same powers as the Labour Court.”

Clearly, the above provision of the law places an arbitral award obtained in terms of the Labour Act [Chapter 28:01] at the same level with an order of the Labour Court.

The respondent goes on to state that the award was given in default and applications for rescission and stay of execution are before the Labour Court.

Like in section 98(14) of the Labour Act [Chapter 28:01], section 92B(3) of the Labour Act [Chapter 28:01]…, does not spell out the procedure to be followed in registering a decision, order or determination of the Labour Court with the High Court or Magistrates Court. The practice in the High Court, however, has always been through application, which application is then served on the other party (the respondent). The respondents have, in the majority of cases, opposed applications for the registration of arbitral awards. The general argument put forward is that the award will have been appealed against or is facing a rescission application.

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 [Chapter 28:01] 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…, said -

“The object of an interim determination made under s97(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.” (Section 97(4) was repealed by section 34 of Act 7 of 2005 but the provision was retained under section 92E(3)).

The above clearly indicates that upon an award being made both parties have equal choices.

The registration of an award in terms of the Labour Act [Chapter 28:01], in my view, is a matter of course as long as the award remains enforceable or unsatisfied. In casu, what is before the court is not a review 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.

I am in agreement with CHIWESHE JP, where in Benson Samudzimu v Dairiboard Holdings Ltd HH204-10, he further states as follows - 

“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.”

In view of the foregoing, I have no reason to decline the registration of the arbitral award as prayed for. It is therefore ordered as follows:-

1. The arbitral award by Conrad V. Chinembiri, dated 11 February 2011, to the extent it applies to the first applicant, be and is hereby registered as an order of this Court; and

2. The respondent shall pay costs of suit.

This is an application for registration of an arbitral award made by arbitrator N.M. Tichiwangana on 6 February 2012 which award remains extant. 

The application is opposed by the respondent and the thrust of such opposition is contained in paragraph 4 of the opposing affidavit of Peter Matemba which reads;

“The quantum of damages payable to the applicants is strongly disputed by the respondent. The respondent failed to timely (sic) submit its submissions for quantification of damages in issue. The award referred to was only granted in default. Subsequently, the respondent filed an application for rescission of default judgment before the arbitrator. The application is still pending. In light of this, the present chamber application is premature as the applicants were duly served with the application for rescission of default judgment. Instead of responding to the application for rescission of default judgment the applicants chose to register to prematurely register the award (sic) which has the potential of being adjusted if the application for rescission of default judgment is successful.”

I find myself having to repeat what I stated in Greenland v Zimbabwe Community Health Intervention Research Project (Zichre) HH93-13…, that -

“A party which finds itself faced with an arbitral award it is challenging should take advantage of the provisions of s92E(3) of the Labour Act [Cap 28:01] which empowers the Labour Court to make an interim determination for the stay or suspension of an arbitral award. Where the award has not been stayed or suspended in terms of s92E(3) and remains extant, this court will, as a matter of principle, register the award for enforcement unless there are grounds for not doing so as provided for in Article 36 of the model law contained in the Arbitration Act [Cap 7:15].”

Article 36 of the Model Law provides that recognition or enforcement of an arbitral award may only be refused at the request of the party against whom it is invoked if that party shows the court proof that;

1. A party to an arbitration agreement was under some incapacity or the agreement was invalid under the law to which the parties subjected it to or under the law of the country where the award is made.

2. The party was not given proper notice of the appointment of an arbitrator or the arbitral proceedings or was otherwise unable to present his case.

3. The award deals with a dispute not contemplated or not falling within the terms of reference to arbitration.

4. The composition of the arbitral tribunal or the procedure was not in accordance with the agreement of the parties or the law of the country where the arbitration took place.

5. The award has not yet become binding on the parties or has been set aside or suspended by a court of law.

6. The court finds that the subject matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe or recognition or enforcement will be contrary to the public policy of Zimbabwe.

The grounds for opposition set out by the respondent…, are not covered by Article 36. It is myopic for the respondent to think that an application for rescission of judgment submitted to the arbitrator, who clearly is functus officio and cannot reverse his own decision, can prevent the registration of an arbitral award which is extant. The respondent should have sought the suspension of the award.

There is therefore no merit in the opposition. In result I make the following order, that:

1. The arbitral award of N.M. Tichiwangana dated 6 February 2012 is hereby registered as an order of this court.

On 3 February 2011, the respondents were granted the following award:-

“WHEREUPON after perusing the claimant's written submissions filed of record and in light of the respondent's default in filing written submissions.

IT IS ORDERED THAT:

1. The respondent to pay to each claimant the amount shown below, this being the difference of what is legally due for each claimant and what has already been paid (retrenchment packages):- 

GODFREY NGWARU                = $ 2,667=

LINOS CHIGONDA                    =$15,029=23

CLOUD ZINGUNDE                   =$15,408=

2. This award to be effected within 14 days from the date of delivery.

3. Cost of this arbitration to be borne by claimants.”

On 25 March 2011, the Arbitral Award was registered as an order of this court in the following terms:-

“IT IS ORDERED THAT:

1. The Arbitration Award dated the 3^rd February, 2011 be and is hereby registered as an order of this Court for purposes of execution.”

The above order is still in force and can only be set aside by this court.

On the basis of the above order, the respondents issued a writ of execution followed by a Notice of Removal on 27 April 2011. The removal notice indicated that the applicant's goods would be attached on 3 May 2011. The applicants' goods were indeed attached as averred in the founding affidavit.

On 28 April 2011, a month after the arbitral award had been registered as an order of this court, the applicant obtained an award, from the same arbitrator, setting aside the already registered arbitral award. The new arbitral award granted on 28 April 2011 read as follows:-

“1. The arbitrator has jurisdiction to hear and determine on that application for rescission of a default judgment.

2. The default judgment is hereby set aside to allow another arbitrator to look into the merits of the case – it is undesirable that labour disputes be resolved on the basis of technicalities.

3. The matter is referred to the designated agent of the National Employment Council of the industry for purpose of securing a settlement failure of which he/she can refer the matter to an independent arbitrator.

4. In the event that the matter is referred to an independent arbitrator the cost of arbitration is to be borne by the applicant.

5. Cost of this arbitration to be borne by the parties equally.

6. Conciliation and reference to arbitration to be done within 14 days from the date this order.”

Legally, the above award has no effect on what is already an order of this court.

The papers do not indicate when the application to set aside the registered arbitral award was made. It is on the basis of the second arbitral award that this application purports to have been filed. The relevant part of the certificate of urgency reads as follows:

“2. Following a labour dispute, the three (3) respondents obtained an Arbitration Award for the payment of $33,104=223.

3. Despite the fact that the aforesaid Arbitration Award has been set aside, the three respondents are insisting on the payment, through execution, of the aforestated amount.

4. The Deputy Sheriff has attached applicant's basic tools of trade. I have considered:-

(a) The basic nature of the goods in relation to applicant's business;

(b) The fact that respondents are men of straw;

(c) The award upon which payment is based has been set aside; and

(d) The respondents are unreasonably and without basis insisting on payment.

5. In view of these factors, I conclude that the matter is urgent. Execution has to be stopped lest irreparable harm will be suffered.

6. It is for these reasons that this matter, in my considered view, is extremely urgent.”

In support of urgency, the founding affidavit also states, in part:

“Meanwhile, applicant successfully applied for the rescission of the default Arbitration award, Annexure “A”. Following a contested hearing, the same Arbitrator issued an Award setting aside the default award. I annex a copy of the latest award and mark it Annexure “E”.

The existence of Annexure “E” has been brought to the attention of the respondents' lawyers. Despite their awareness of the existence of Annexure “E” above, the respondents' lawyers are insisting that the Deputy Sheriff should proceed with execution. The lame excuse given is that until the Arbitration Award, Annexure “E”, has been registered, they will not recognize it. With respect, such conduct on respondents' lawyers is regrettable, and, in my view, unprofessional. The conduct only serves to increase the workload of this Honourable Court and the costs attendant to this matter.

Owing to the aforesaid conduct of the respondents' lawyers, the Deputy Sheriff is at applicant's premises intending to remove applicant's property. It will be noted from the Notice of Seizure and Attachment, Annexure “B”, that the property that is sought to be removed are applicant's business trucks responsible for deliveries countrywide. The removal of the trucks will not only literally put a halt applicant's business, it affects consumers at large since applicant is the country's largest producer and supplier of basic commodities including flour, cooking oil and salt. This, in my view, is totally not called for considering that the execution is unnecessary.

In the circumstances, I request this Honourable Court to stay execution of the award in the interim. The final order that I seek is the registration of the latest award, Annexure “E”, and the setting aside of the Writ of Execution. I seek the registration on the basis of s98(14) of the Labour Act which provides as follows:-

'Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him 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.'

The applicant has no other remedy to stay the execution of the writ of execution. If the stay of execution is not granted, irreparable economic harm will be visited on the applicant and the public at large as set out in para eight (8) above.”

In the opposing affidavit, supported by both the second and third respondents, the first respondent states as follows:

“1. This matter cannot be heard on an urgent basis because the reasons that have been given are not valid but are just meant to buy time.

2. The applicant was served with an arbitral award by the Arbitrator M. Chimhuka and was also served with a Chamber Application of registration of the arbitral award under Case number HC1962/11 on 22^nd February 2011. Applicant never bothered to oppose the application only to wait until the Deputy Sheriff wanted to remove the attached goods.

3. The award upon which payment is based on has not been set aside or appealed against at the Labour Court by the applicant.”

Counsel for the applicant submitted that prior to the registration of the award the applicant had no legal basis, as provided for in Article 36 of the Arbitration Act [Chapter 7:15] to interfere with the registration of the award. He said it is only on the basis of the provisions of Article 36 of the Arbitration Act [Chapter 7:15] that the award could be set aside.

The said Article 36 of the Arbitration Act [Chapter 7:15] provides as follows:

“(1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only -

(a) At the request of the party against whom it is invoked, if that party furnishes to the court where recognition or enforcement is sought proof that -

(i) A party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made, or

(ii) The party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or

(iv) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(v) The award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or

(b) If the court finds that -

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or

(ii) The recognition or enforcement of the award would be contrary to the public policy of Zimbabwe.

(2) If an application for setting aside or suspension of an award has been made to a court referred to in paragraph (1)(a)(v) of this article, the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.

(3) For the avoidance of doubt, and without limiting the generality of paragraph (1)(b)(ii) of this article, it is declared that the recognition or enforcement of an award would be contrary to the public policy of Zimbabwe if -

(a) The making of the award was induced or effected by fraud or corruption; or

On 30 September 2013 a chamber application was granted by this court in the following terms:-

''IT IS ORDERED THAT:-

(1) The arbitral award dated 10 April 2013 in the matter between the parties is hereby registered as an order of this court.

(2) The respondent pay to the applicants the sum of US648,939=96.

(3) The respondent bears the costs of this application.''

The respondent company has requested reasons for the judgment as it intends to appeal against the judgement. 

These are they.

All the applicants were employed by the respondent company in various capacities. The applicants were part of a group of employees who were retrenched as of 30 June 2010. The total number of retrenchees was initially 117 but 50 of them have since been paid what was due to them. The remaining 67 should, according to the arbitral award, have been paid a total sum of US$648,939=96 by 28 June 2013. The respondent company failed to meet its obligation in terms of the arbitral award handed down on 10 April 2013.

The applicants then filed this application to have the arbitral award registered as an order of this court in terms of section 98(14) of the Labour Act [Chapter 28:01] on 11 July 2013 and served it on the respondent company the following day – 12 July 2013. The respondent failed to file its notice of opposition timeously. It purported to do so on 19 August 2013 without even seeking condonation for failure to act timeously. It was out of time by no less than 24 working days. It was hopelessly out of time.

This was an application for the registration of an arbitration award. It was opposed. At the end of the hearing I granted the application.

The facts were these:

At all relevant times, the applicant had been a former consultant of the respondent. He had resigned in July 2010. On 31 August 2012, the arbitrator had awarded him $57,144=14 as his outstanding terminal benefits due by the respondent. The amount would be paid within 21 days. The respondent had not paid. On 7 September 2012, the applicant applied to this court to register the arbitrator's award as an order of this court in terms of section 98(14) of the Labour Act [Chapter 28:01].

The respondent opposed the application. The overall ground of objection was that the arbitration award was contrary to the public policy of Zimbabwe.

The respondent raised numerous reasons but they were not crisply synthesised. It was difficult to pick out exactly the manner in which the public policy of Zimbabwe was said to have been breached by the award. In a nutshell, and in my own words, the respondent's major grounds of opposition, as I perceived them, were these:

1. That the arbitrator had erroneously interpreted the relevant provision of the then contract of employment between the parties to mean that the applicant had been entitled to 30% of all the revenue earned by the applicant as opposed to only that revenue that the respondent had earned in respect of those projects under his supervision.

2. That the arbitrator had wrongly decided the dispute without receiving evidence from the applicant but had merely relied on the submissions made by his legal practitioner.

3. That the arbitrator had committed a gross error by finding that the Labour Act was still applicable to the parties when, in fact, their relationship was no longer that of employee and employer after the applicant had resigned. In this regard, the respondent relied on the case of Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) as authority for its claim that the Act allegedly “…, has no jurisdiction between former employers and former employees”…,.

I found the respondent's opposition lacking in merit.

In my view, none of the reasons for the objection amounted to a breach of the public policy of Zimbabwe. Those were grounds for an appeal or a review. Whether or not the applicant was entitled to 30% of all or part of the revenue earned by the respondent for the period in question was a question of fact. The arbitrator could properly deal with it. Also, whether or not the arbitrator could decide the matter on the basis of the submissions by the legal practitioners for the parties without the aid of viva voce evidence depended on the agreement of the parties and the arbitrator at the pre-arbitration stage. This appears to have been the case from the record. But this is besides the point. It was incompetent for the respondent to have mounted an objection on that basis.

In an application for the registration of arbitral awards in terms of section 98(14) of the Labour Act [Chapter 28:01] this court is not called upon to determine the merits of the arbitrator's decision or the propriety of the proceedings before him. Section 98(14) of the Labour Act [Chapter 28:01] reads:

“(14) 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.”

Sub-section (2) provides that the Arbitration Act [Chapter 7:15] shall apply to disputes referred for compulsory arbitration.

This case was one such.

Article 35 in the Schedule to the Arbitration Act [Chapter 7:15] provides for the manner of the registration of an arbitral award with the High Court. Article 36(1) in the Schedule to the Arbitration Act [Chapter 7:15] provides two sets of grounds on which the registration of an arbitral award may be refused. The first set, in paragraph (a), sub-paragraphs (i) to (v), has five grounds. These can be invoked by the party against whom the application for registration is made. None of these grounds was applicable in this matter. The second set, in paragraph (b), sub-paragraphs (i) and (ii), has two grounds.

In terms of the first ground in the second set, this court can refuse registration of an arbitral award if it finds that the subject-matter of the dispute is not one capable of settlement by arbitration under the laws of Zimbabwe.

As mentioned above, one of the respondent's grounds of objection was that the Labour Act does not apply to ex-employees. I do not know whether by this it was meant to say that if that Act was no longer applicable then the dispute between the parties was one not capable of resolution by arbitration. The argument was never developed properly. But whatever the respondent meant the objection was ill-conceived. A dispute between an ex-employee and his ex-employer would still be one capable of resolution by arbitration under the law of Zimbabwe, whatever the Labour Act provides. But, more importantly, the Labour Act does apply to disputes between ex-employees and ex-employers in respect of rights and obligations that accrued during the subsistence of the employment. Firstly, contrary to the respondent's understanding of the Supreme Court judgment in the Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) case, the ratio decidendi of that judgment was that an employee whose employment had ceased did not lose his rights as an employee which had vested during the time of employment and that he would be entitled to a remedy in terms of the dispute resolution mechanism set up by the then Labour Relations Act….,.

The second set of grounds in paragraph (b) of sub-article (1) of Article 36 in the Schedule to the Arbitration Act [Chapter 7:15] on which this court can refuse the recognition of an arbitral award is if the recognition or enforcement of that award would be contrary to the public policy of Zimbabwe.

In this connection, the respondent referred to a number of cases that have dealt with the test to be applied in determining whether or not an award would be in conflict with the public policy of Zimbabwe. The cases are Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S); Delta Operations (Pvt) Ltd v Origen Corporation (Pvt) Ltd 2007 (2) ZLR 81 (S); Francina Zimayi v Burdock Investments (Pvt) Ltd and 2 Ors HH64-07.

According to the test as set out in Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S) (per GUBBAY CJ…,.):

“An award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or in law. In such a situation, the court would not be justified in setting the award aside. Under Article 34 or 36, the court does not exercise an appeal power by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it.”

Curiously, the respondent made no reference to Article 36(3) in the Schedule to the Arbitration Act [Chapter 7:15]. It gives some examples of aspects that would plainly be perceived as being contrary to the public policy of Zimbabwe. It reads:

“(3) For the avoidance of doubt and without limiting the generality of paragraph (1)(b)(ii) of this Article, it is declared that the recognition or enforcement of an award would be contrary to the public policy of Zimbabwe if –

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

The responded did not make out the case that by invoking the test in Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S) and other cases it felt that its situation fell outside the example in Article 36(3) in the Schedule to the Arbitration Act [Chapter 7:15]. But, obviously, it was not the respondent's case that the making of the award in the case between itself and its ex-employee had been induced or effected by fraud or corruption. It was also not its case that the audi alteram partem rule had been breached. On the other hand, where the contract of employment between the parties provided:

“[i]n summary, as a revenue earning employee, you will be paid 30% of all revenue earned over and above your basic salary” and the arbitrator ruled that the applicant was entitled to 30% of the revenue earned by the respondent during the relevant period, I saw no “faultiness or incorrectness” that constituted “a palpable inequity” in the arbitrator's reasoning or conclusion. I saw nothing “so far reaching and outrageous in its defiance of logic or accepted moral standards.” I saw nothing that “a sensible and fair minded person” would consider a misconception of justice in Zimbabwe. I saw nothing intolerably hurtful.

In short, I saw nothing contrary to the public policy of Zimbabwe.

The papers which are filed of record show that the applicant and the first two respondents were embroiled in two labour disputes both of which ended up with Honourable Arbitrators R.E Nhiwatiwa and P. Shawatu for arbitration. Arbitrator Shawatu's award was issued on 30 January 2013 and Arbitrator Nhiwatiwa's award was issued on 17 April 2013. Both arbitral awards were issued in favour of the first and second respondents, who, in the first case, raised the complaint of underpayment of wages, non-payment of overtime, leave pay and gratuity. In the second case, the two respondents raised the complaint of non-payment of wages and terminal benefits.

Armed with the two arbitral awards, the first and second respondents approached the fourth and fifth respondents with a view to having the arbitral award of 17 April 2013 registered and enforced against the applicant. The applicant was not aware of the four respondents' move until on 5 June 2014 when the third respondent called at the premises of the applicant on whom he served notice of attachment of the applicant's property and setting 10 June as the date of removal of the same. 

The gravamen of the applicant's complaint was, or is, that the arbitral award of 17 April 2013 was not registered with the Magistrate's Court and service upon it of the warrant of execution as well as the notice of attachment and removal of its property came to it as a surprise as no process was served upon it for the registration of the arbitral award…,. It stated that the removal and sale of its property based on an unregistered arbitral award would visit it with untold hardship as its operations would be crippled.

The first and second respondents filed their opposing papers to the application. They raised one preliminary matter after which they proceeded to address the court on the substantive aspects of the application….,.

On the substance of the application, the respondents stated that the manner in which the parties were cited was rather tardy and somewhat vexatious. They contended that the relief which the applicant was, or is, seeking had very little or no bearing on the third, fourth and fifth respondents. 

The applicant's position on the matter was that the conduct of the fourth and fifth respondents created the unpalatable situation in which the parties were currently labouring under. It submitted that the directive which the fifth respondent displayed at the Magistrates' Court stated that any party with an arbitral award who intends to register it with the Magistrate's Court, as provided for in terms of the Labour Act [Chapter 28:01], should submit such award and a draft warrant of execution which when issued instructs the Messenger of Court to execute…,. The fourth respondent, the applicant claimed, issued the warrant of execution in respect of the arbitral award which had been made in favour of the first and second respondents on 17 April 2013. It is this issued warrant of execution which the third respondent based his action upon when he proceeded to attach the applicant's property, the applicant said. It, accordingly, prayed the court to declare that the directive which the fifth respondent issued was, or is, unconstitutional. The directive, it said, violated its constitutional right to administrative justice as contained in section 68 of the Constitution. It stated, further, that the directive violated the rules of natural justice which are embodied in the audi alteram partem rule.

Looked at from the abovementioned perspective, the applicant cannot be faulted when it cited the third, fourth and fifth respondents as it did. The fourth and fifth respondents are the major cause of its concern. The third respondent, in the court's view, acted pursuant to the directive of the fifth respondent; which directive the fourth respondent translated into what may be regarded as an order of the Magistrate's Court through which order the arbitral award of 17 April 2013 was apparently registered for purposes of having it enforced.

The first and second respondents spent a great deal of their time lecturing the court on the obvious. They centred most of their submissions on wanting to convince the court of this simple fact; which is that the Labour Court and arbitrators, who are appointed in terms of the Arbitration Act [Chapter 7:15] have inherent and exclusive jurisdiction in all labour matters. They submitted that the directive which the fifth respondent issued and displayed at the Magistrate's Court was, or is, in sync with section 92B(3) of the Labour Act [Chapter 28:01]. They argued and stated that, in terms of the wording of the mentioned section, registration of an arbitral award was an event which was completed by the submission of the award to a court which has jurisdiction over the registration of the award. They, in this regard, referred the court to three case authorities which they said supported the view which they held, and hold, of the matter. The cases in question were those of:

(a) Tapera and 17 Others v Field Spark Investments HH102-13;

(b) Brian Muneka & 5 Others v Manica Bus Company HH30-13; and

(c) Vasco Olympio & 4 Others v Shomet Industrial Development HH191-12.

All the abovementioned three cases involved registration of arbitral awards for purposes of having them enforced. A reading of the cases in question shows that the arbitral award winning parties did not just submit their arbitral awards to the court(s) which had jurisdiction to register the awards. The parties went by way of application and serving their respective applications on the respondents when they sought to have the awards which had been made in their favour registered for purposes of enforcing them. That, in the court's considered view, is the correct position of the law on the matter. The registration of a Labour Court order or an arbitral award is not an event but a process.

The legislature, it hardly requires any emphasis, conferred on the Labour Court and arbitrators who are appointed in terms of the Arbitration Act [Chapter 7:15] inherent and exclusive jurisdiction to hear all labour disputes as well as to make orders, decisions and determinations on the same. The legislature, however, deprived the Labour Court, arbitrators and such like tribunals, which are set up to hear and determine labour matters, the power to enforce their judgments, orders, determinations or decisions. It reposed such powers of enforcement in the Magistrates' Court or the High Court, depending on the monetary value of the order or award which is intended to be registered for purposes of enforcement. The questions which must be asked and answered in respect of this part of the case are:

(i) Why should the order or the award be registered; and

(ii) What process must be involved in the registration of the order or award?

It goes without saying that the Labour Court, or the arbitrator's award, is, by the process of registration, turned into an order of the court in which the order or award is being, or has been, registered. The registration exercise converts the Labour Court order, award, decision or determination into a civil judgment of the court in which such order, award, decision, or determination has been registered. The question which begs the answer at this stage of the proceedings is that which centres on how the substantively made order of the Labour Court or the arbitral award is converted into a civil judgment of the court in which the order or award is being, or has been, registered. There are two known processes through which a court is clothed with the power to make an order. The processes in question may be by way of action or application …,. Litigants who want to register orders or awards which the Labour Court or arbitrators grant to them do, invariably, employ the application mode of having their orders or awards registered with the Magistrates' Court or the High Court. The application procedure which they adopt places a duty upon them to notify the other party of their intention to register and enforce the order which had been awarded in their favour by the court a quo. The aggrieved party has every right to acquiesce to, or to oppose, the registration of the Labour Court order or the arbitral award. However, as soon as the order or award has been registered with the relevant court, the order or award assumes the meaning and content of a civil judgment of the court in which the award or order has been registered. Once it has taken that substantive content, the civil judgment becomes executable.

It is a cardinal rule of our procedure and practice that parties who bring matters to court or to the arbitrator must be allowed to participate at every stage of the proceedings which are before that court or arbitrator. They must be heard when the matter is set down for hearing, when judgment is pronounced for or against them and when, as in casu, the award winning party moves the relevant court, in the form of an application, to have the award which was issued in its favour registered for purposes of having it enforced. The word order which appears in section 92B(3) of the Labour Act [Chapter 28:01] does contemplate the fact that the registration of the order or award turns it into an order of the court in which the order or award is registered.

The directive which the fifth respondent issued and displayed at his court does, with respect, set a dangerous precedent which cannot be allowed to stand. The directive gives the distinct impression that courts allow parties who approach them in search of justice to ambush each other as persons who are playing a game of cards are, more often than not, inclined to do. It runs contrary to some long established principles of natural justice and rules of courts of all levels and it, in the process, places the due administration of justice into very serious dispute. The fifth respondent issued it in the hope, it is the court's view that it would assist in the immediate disposal of such cases as the present one which is labour-related. The directive, however, remains unclear as regards the designation of the court official who is clothed with the authority to issue or register the arbitral award. It, if anything, raises more questions than it has answers to them. Questions which immediately come to the fore on a reading of the directive are such as do centre on:

(a) Which official between the magistrate and the clerk of court has the power to register the award?

(b) What papers accompany the arbitral award when it is submitted for registration?

(c) To which court official are the award and a draft warrant of execution submitted?

(d) How does the person who submitted the papers get to know that his or her, or its or their, order or award has been registered with the court?

(e) Does he or she, or it or they, keep on checking upon the progress or otherwise of the registration process? and, more importantly;

(f) How are the views of the party who is adversely affected by the effects of the directive get to be known as well as registered with the court?

The last mentioned of the six questions which have been posed in the foregoing paragraphs constitutes the substance of the present application. The applicant submitted, and correctly so, that it was not heard when the event which related to the apparent registration of the award was effected in terms of the fifth respondent's directive. It argued that the writ of execution which resulted from the directive was improperly issued and it cannot, therefore, be used to attach and remove its property, let alone have such sold under the hammer. It is the court's considered view that the applicant was within its rights when it argued as it did and questioned the manner in which the writ of execution had come into existence.

The respondents, on their part, could not assert with any degree of certainty that the arbitral award which was made in their favour on 17 April 2013 was registered with the Magistrates' Court.

The judgment sought to be appealed against is one delivered by the High Court.

In that judgment, the learned Judge declined to register an arbitral award on two bases, the first being that the award had been fully satisfied by the respondent in that the applicant, who sought to have the award registered, had been paid, in full, as far back as August 2012, the total amount agreed by the parties to be owing in consequence of the award. The second was that the award sought to be registered did not sound in money and was therefore not registrable.

It was common cause that following the grant of the arbitral award, the parties, through their legal practitioners, agreed on an amount to be paid in settlement of the award. The respondent paid that amount, which was USD39,295=75, in August 2012. Thereafter, the applicant withdrew its application for registration of the award which application was premised on the agreed figure of USD39,295=75.

About 16 months later, the applicant, through its legal practitioners, again, sought registration of the award. Since the award was not sounding in money but was stated only as follows:

“5. Claimant's proved losses are the interest due on the sums of money specified in the contract, from the time in (sic) which they become due until the date of payment, and I order that the respondent pay damages in those amounts,” the applicant caused the interest to be calculated by the Interest Research Bureau on 21 November 2013. The figure now claimed and presented to the court a quo for registration was USD265,740=16.

The respondent opposed the registration on the two grounds on which the application was dismissed by the court.

In my view, the applicant has not made out a case for the indulgence sought. Not only has there been no satisfactory explanation of the delay in noting the appeal or filing this application, but the conduct of the legal practitioners displays a casual disregard for the Rules of Court. When this is considered, together with the applicant's failure to establish any reasonable prospects of success on appeal and the cumulative effect of the factors set out above, it is evident that the application lacks merit.

Counsel for the appellant also attacked the correctness of the decision of the court a quo in imposing the penalty of dismissal on the appellant on the ground that it did not place much weight on mitigatory factors. He said that was contrary to the requirements of section 12B(4) of the Labour Act [Chapter 28:01] which provides:

“In any proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee's service, the employee's previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.”

The above section contemplates consideration of relevant mitigating factors. Relevant mitigating factors ought to be considered together with relevant aggravating circumstances.

In the present case, the arbitrator, in setting aside the decision of the employer, considered irrelevant mitigating factors. The arbitrator noted, and considered, the fact that the appellant had not derived any benefit from his wrongdoing. Such a factor was irrelevant as no benefit could be derived from a misconduct that eroded trust between the employer and the employee. All the employee could achieve by his misconduct was the erosion of the trust the employer had reposed in him. The arbitrator further considered that the employer did not suffer any financial loss arising from the appellant's misconduct. Again, such factor was irrelevant. Prejudice suffered by the employer as a result of the appellant intimidating a prospective substantive Human Resources Manager did not have to be measured in financial terms.

In Mashonaland Turf Club v George Mutangadura SC05-12, the Court said:

“In the exercise of their powers in terms of s12B(4) of the Labour Act, the Labour Court and arbitrators must be reminded that the section does not confer upon them an unbounded power to alter a penalty of dismissal imposed by an employer just because they disagree with it. In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer's discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

Whether the Arbitrator had the jurisdiction to make the determination referred to him by the Labour Officer

It was submitted, on behalf of the appellant, that in making a declaration as to the lawfulness or otherwise of the transfer the Arbitrator exceeded his jurisdiction.

Counsel for the respondent, however submitted that the arbitrator acted within his jurisdiction and the appeal ought to be dismissed for lack of merit.

The jurisdiction of an arbitrator, appointed in terms of the Labour Act, is confined to determining disputes or unfair labour practices in terms of section 93 of the Labour Act [Chapter 28:01] (“the Act”). With regard to such disputes, section 98(9) of the Labour Act [Chapter 28:01] provides:

“(9) In hearing and determining any dispute, an arbitrator shall have the same powers as the Labour Court.”

It seems to me that the Arbitrator's error stemmed from the terms of reference issued by the Labour Officer. In essence, what was being requested of him was to review the procedure by which the transfer of the undertaking was effected and to make a declaration as to the legality of the transfer.

It has been held that the Labour Court does not have the jurisdiction to issue a declaratory order. That jurisdiction is reposed in the High Court.

See section 14 of the High Court Act [Chapter 7:06]; Agribank v Machaingaifa & Anor 2008 (1) ZLR 244; section 89(6) of the Labour Act [Chapter 28:01].

The determination of rules of procedure in arbitration proceedings is governed by Article 19 of the Model Law scheduled to the Arbitration Act [Chapter 7:15]. Paragraphs (1) and (2) of Article 19 provide as follows:

“(1) Subject to the provisions of this Model Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Model Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.”

Also relevant for present purposes are paragraphs (1) and (2) of Article 24 pertaining to the conduct of hearings and written proceedings:

“(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearing shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party

(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents.”

My reading of Articles 19 and 24, taken together, is that the primary determinants of arbitral procedure are the consensus and convenience of the parties themselves. However, where the parties are unable to agree or silent on the matter, the arbitrator or tribunal is at large, within the bounds of procedural and substantive fairness, to conduct the arbitration in such manner as he or it considers appropriate. Moreover, there is nothing in the provisions of the Model Law to preclude the arbitrator from holding separate hearings at appropriate stages of the proceedings, either if this is requested by one party, or, quite obviously, where it is mutually agreed by both of the parties.

A party wishing to apply to the Labour Court for interim determination pending determination of the appeal against an arbitral award would have to consider the question whether the award appealed against is enforceable. The party contemplating to have the award registered with the High Court or Magistrates Court pending determination of the appeal by the Labour Court would have to consider the same question.

In this case, the award was not sounding in money.

It simply directed payment of damages. The parties were given the option of approaching the arbitrator in the event that they failed to agree on the quantum of damages. It goes without saying that the award could not be executed because the person in whose favour it was made could not even register it. That explains why the respondent did not take steps to enforce the award pending determination of the appeal notwithstanding the effect of section 92E(2) of the Labour Act [Chapter 28:01]. It also explains why the appellant was entitled in the circumstances not to apply for an interim determination….,.

This was a chamber application for the registration of an arbitral award. Because it was opposed it was referred to the opposed motion court. The matter had a chequered history. It had started more than eight years ago.

Below are the facts as summarised.

In August 2007, an arbitrator, one N. A. Mutongoreni (“Mutongoreni”) made an award in favour of the 'applicant (hereafter referred to as 'Carroll”). Mr Mutongoreni determined that the termination of Carroll's employment with the respondent (hereafter referred to as 'Steelbase') had been unfair. He awarded damages. However, these were not quantified.

In September 2007, Steelbase appealed to the Labour Court against Mutongoreni's award. Simultaneously, it applied to that court for an order to stay the award pending the determination of the appeal.

It seems in 2011 Carroll went back to arbitration for the quantification of Mutongoreni's award. On 16 September 2011, another arbitrator, one G Fereshi (hereafter referred to as 'Fereshi'), quantified Mutongoreni's award in the sum of US$112,520=. Twelve days later, i.e. on 28 September 2011, the Labour Court granted a stay of Mutongoreni's award. That was more than five years after the appeal had been filed. The Labour Court said nothing about Fereshi's quantification.

On 12 October 2011, Steelbase appealed to the Labour Court against Fereshi's quantification. Before me, counsel for Carroll advised that an application for a stay of Fereshi's quantification had also been lodged with the Labour Court. He also advised that Steelbase's appeals against Mutongoreni's award and Fereshi's quantification had eventually been dismissed. Therefore, there was nothing pending at the Labour Court….,.

It was common cause that both the main award by Mutongoreni and the quantification by Fereshi were extant. The appeals against them had been dismissed by the Labour Court. But even if they had not been dismissed, by virtue of the provisions of section 98(10) of the Labour Act [Chapter 28:01], an appeal against the decision of an arbitrator lies to the Labour Court. In terms of section 92E(2) of that Act, such an appeal does not suspend the decision appealed against. Therefore, there was nothing standing in the way of registration of the awards:

See Gaylord Baudi v Kenmark Builders (Private) Limited HH04-12; DHL International Ltd v Madzikanda 2010 (1) ZLR 201 (H); Samudzimu v Dairibord Holdings Ltd 2010 (1) ZLR 357 (H); and Senele Dhlomo-Bhala v Lowveld Rhino Trust HH263-13.

Mr Macharaga readily conceded the point. He withdrew all opposition to the matter proceeding. An order in terms of the draft was then granted as follows:

“IT IS ORDERED THAT;

1. The arbitral award issued by Ms G. Fereshi on 16^th September 2011 be and is hereby registered as an order of this Honourable Court in terms of section 98(14) of the Labour Act [Chapter 28:01].

2. Respondent shall pay to the Applicant the sum of USD112,520= together with interest a temporae more from [the] date of application to [the] date of final payment.

The registration or recognition or enforcement of an arbitral award can only be refused where an application for a stay of execution or suspension of the award is made to the Labour Court in terms of section 92E(3) of the Labour Act [Chapter 28:01]:

Greenland v Zichire HH93-13; Kukura Kurerwa Bus Company v Mukwena & Ors HH477-14; Kuzamba v Innscor Africa Ltd t/a Spar Retail (Pvt) Ltd HH505-14.

There is also merit in the submissions made by counsel for the applicant regarding the evidence which was allowed by the arbitrator post hearing of the matter.

As I have said, after the parties had agreed to make written closing submissions, the respondent went on to submit further evidence including documentation attached to the written submissions. There was really nothing wrong with that considering that she was self-acting and a lay person. It was, however, incumbent upon the arbitrator, having taken such evidence, to allow the applicant to respond.

She did not.

Instead, the arbitrator went on to rely upon such evidence in determining the matter. A whole array of correspondence was thrown in after the hearing, including allegations of publication of the matter in the Daily News of 6 September 2002 and other issues relating to outstanding leave.

I do not agree with the respondent that all this information was already available at the time of the hearing. If it was, there would have been no need to re-submit it via the written closing submissions.

Article 34(5) of the Model Law seeks to clarify what would be regarded as being in conflict with the public policy. It provides:-

“For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if -

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

One of the basic tenets of the rules of natural justice is the audi alteram partem rule, which enjoins every adjudicating authority to hear the other side before determining the matter. There can be no doubt that the arbitrator fell foul of that rule.

To that extent, there is no alternative but to interfere with the award.

Section 98(9) of the Labour Act [Chapter 28:01] provides that:

“(9) In hearing and determining any dispute, an arbitrator shall have the same powers as the Labour Court.”

Thus, when an arbitrator makes an award, his position is akin to that of a court of law….,.

A court is defined to mean all its judges sitting alone or with other judges. This is because they have the same powers and exercise parallel jurisdiction. Arbitrators are no different in this respect. Accordingly, the res judicata and functus officio legal principles will apply should the matter be brought before the same or a different judge, or, in this case, arbitrator.

This is an appeal against the entire judgment of the Labour Court sitting at Harare, handed down on the 8 February 2017.

BACKGROUND

The respondent was employed by the appellant as a Watchman from 3 May 2005. He lodged a complaint of unfair labour practice with the conciliator alleging that, since January 2010, the appellant had been paying him a salary which was below the National Employment Council for Welfare and Educational Institutions' rates. The respondent also alleged that the appellant had not been paying him transport and housing allowances. The conciliator failed to settle the matter and referred it for arbitration.

The parties appeared before an arbitrator with the respondent claiming payment of $15,293=84 in arrear salaries and allowances. The appellant raised a point in limine relating to the legality of a labour consultant representing the respondent in the proceedings before the arbitrator. The arbitrator dismissed the point in limine and held that Article 24(4) of the Arbitration Act [Chapter 7:15] allowed an employee to be represented by a person of their choice. In the arbitrator's view, this included a labour consultant. The appellant was aggrieved by the decision of the arbitrator and appealed to the Labour Court, which dismissed the appeal. Aggrieved, the appellant has appealed to this Court on two grounds that essentially raise only one issue for determination;

This is whether or not a labour consultant has, to use the appellant's words, the 'locus standi' to represent a party in arbitration proceedings.

PROCEEDINGS BEFORE THIS COURT

It is pertinent to note from the outset that the appellant improperly uses the term 'locus standi' in relation to the Labour Consultant's representation of a party before an arbitrator. The concept of locus standi was succinctly explained in the case of Zimbabwe Allied Bank Limited v Dengu and Anor SC52-16 as follows;

“The principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Once a party establishes that there is a cause of action and that he or she is entitled to the relief sought, he or she has locus standi. The plaintiff or applicant only has to show that he or she has direct and substantial interest in the right which is the subject-matter of the cause of action.”

A labour consultant, like a legal practitioner representing a party in any court proceedings, would have no personal interest in the cause of action in question nor the relief sought therein. He is an agent of the party who has the requisite locus standi and for whom he or she acts. It follows, therefore, that the issue to be determined in casu is not the locus standi of the labour consultant to represent a party before the arbitrator. Rather, it is whether or not the labour consultant has the authority to represent the respondent before an arbitrator.

In its heads of argument, the appellant relies on section 92 of the Labour Act [Chapter 28:01] (“the Act”) which provides as follows:

“A party to a matter before the Labour Court may appear in person or be represented by:

(a) A legal practitioner registered in terms of the Legal Practitioners Act [Chapter 27:07];

(b) An official or employee of a registered trade union or employer's organization of which the party is a member.”…,.

While the appellant correctly contends that this provision provides a closed list of persons who may represent parties before the Labour Court, it argues, nevertheless, that the same provision regulates representation in labour proceedings before an arbitrator. For this contention, the appellant relies on its interpretation of section 98(9) of the Labour Act [Chapter 28:01], which states as follows;

“In hearing and determining any dispute, an arbitrator shall have the same powers as the Labour Court.”…,.

The import of the appellant's submission is that by virtue of being clothed with the same powers as those of the Labour Court, the arbitrator is, on that basis, empowered to bar labour consultants from purporting to represent any party appearing before him or her. The appellant argues that the Labour Act takes precedence over provisions in the Arbitration Act that are inconsistent with it. Further, that section 2(a)(3) of the Labour Act [Chapter 28:01] states that it shall prevail over any other enactment that is inconsistent with it. On this ground, the appellant avers that the provision in the Arbitration Act, dealing with representation before the arbitrator, being inconsistent with the Labour Act, is therefore overridden by the provisions of its section 92.

The respondent argues, in response, that the Arbitration Act is clear on who may be a representative in labour proceedings before an arbitrator. He submits, further, that there is no conflict or inconsistency between the Arbitration Act and the Labour Act on the question of who may represent a party before the two tribunals. The submission is made that Article 24(4) of the Arbitration Act [Chapter 7:15] does, with as much clarity as section 92 of the Labour Act [Chapter 28:01], as regards the Labour Court, set out who may represent a party not acting in person at any hearing of the arbitral tribunal.

The appellant anchors its argument as regards the alleged inconsistency between Article 24(4) of the Arbitration Act [Chapter 7:15] and the Labour Act, on section 92 of the latter. This inconsistency, the appellant argues, is what results in Article 24(4) of the Arbitration Act being overridden by section 92 of the Labour Act [Chapter 28:01].

Article 24(4) of the Arbitration Act [Chapter 7:15] provides as follows:

“At any hearing or any meeting of the arbitral tribunal of which notice is required to be given under paragraph (2) of this article, or in any proceedings conducted on the basis of documents or other materials, the parties may appear or act in person or may be represented by any other person of their choice.”…,.

I will state, at this juncture, that I do not find merit in the appellant's contentions, nor its interpretation of the import of the cited provisions, that is sections 92 and 89 of the Labour Act [Chapter 28:01]. In this respect, I find the submissions made to be unsustainable on two main grounds;

(i) Firstly, section 89 of the Labour Act, which sets out the powers and functions of the Labour Court refers to such powers as;

(a) Hearing and determining applications and appeals in terms of the Act or any other enactment; and

(b) Hearing and determining matters referred to it by the Minister; and

(c) Referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) Appointing an arbitrator from the panel of arbitrators referred to in section 98(6);

(e) Exercising the same powers of review as would be exercisable by the High Court in respect of labour matters;

(f) Doing such other things as may be assigned to it in terms of this Act or any other enactment;

(g) In the case of an appeal, to -

(i) Conduct a hearing into the matter or decide it on the record; or

(ii) Confirm, vary, reverse or set aside the decision, order or action that is appealed against, or substitute its own decision or order; and so on.

It is evident from the above that the powers of the Labour Court, as set out in section 89 of the Labour Act [Chapter 28:01] do not envisage the determination, by that court of who may or may not represent any party appearing before it. That issue is prescribed by section 92 of the Labour Act [Chapter 28:01] and is solely to do with the conduct of the proceedings themselves. By contrast, the powers conferred on the Labour Court, in terms of section 89 of the Labour Act [Chapter 28:01] have everything to do with that court's jurisdiction and competence to take certain action related to the substance of the dispute before it or its resolution.

These are the same powers that the arbitrator, in section 98(9) of the Labour Act, is enjoined to exercise in determining matters that fall within his or her jurisdiction. As the powers of the Labour Court, clearly, do not include any reference to the issue of representation, it follows that the arbitral tribunal is not obliged, by law, to import into the conduct of its proceedings, the matrix of representation that is outlined in section 92 of the Labour Act [Chapter 28:01].

In order to put the matter beyond any doubt, the Legislature saw it fit to enact Article 24(4) of the Arbitration Act which governs the representation of parties in labour proceedings before an arbitrator.

Taking all this into account, the conclusion is inevitable that neither section 92 of the Labour Act [Chapter 28:01] nor Article 24(4) of the Arbitration Act [Chapter 7:15] are concerned with the powers of the Labour Court, (and, by extension, of the arbitral tribunal), as outlined in section 89 of the Labour Act [Chapter 28:01].

They, accordingly, do not have to be consistent on that basis alone.

(ii) Secondly, and in my view, the appellant mistakenly perceives a conflict inter se as regards section 92 of the Labour Act [Chapter 28:01] and Article 24(4) of the Arbitration Act [Chapter 7:15], and, on that basis, argues that the former provision should prevail in terms of section 2A(3) of the Labour Act [Chapter 28:01] which provides as follows:

“(3) This Act shall prevail over any enactment inconsistent with it.”

The meaning of this provision is clear. There must be a demonstrated inconsistency between the enactment in question, and the Labour Act, for the latter to prevail.

In my view, an inconsistency arises only where two or more statutory provisions address the same issue or subject matter differently.

In casu, two separate issues are addressed by the two provisions, namely, representation in proceedings in the Labour Court (section 92 of the Labour Act [Chapter 28:01]), and representation in proceedings before the arbitral tribunal (Article 24(4) of the Arbitration Act [Chapter 7:15]). Despite the fact that both provisions are concerned with the main issue of representation, it is the forum in which such representation plays out that distinguishes the two.

Additionally, and as a matter of logic, I do not believe a statutory provision addressing a particular issue can override another that clearly deals with a different subject matter. This is particularly so where, as in casu, neither provision is prefixed with the phrase “subject to…,” or some such rider. The language of both provisions, in my opinion, makes it clear that the Legislature fully intended the meaning and effect thereof.

Before the arbitrator, the respondent chose a representative in the person of a labour consultant to represent him at the hearing. The word 'person' in the provision cited above does not come with any qualification except that such person should be of the relevant party's choice. This circumstance makes the ambit of Article 24(4) of the Arbitration Act [Chapter 7:15] wider than that prescribed in section 92 of the Labour Act [Chapter 28:01]. The person chosen by a party can therefore be anyone, even a legal practitioner or an official or employee of a registered trade union or employer's organization, as envisaged in section 92 of the Labour Act [Chapter 28:01]. More to the point, however, is the fact that the provision does not expressly exclude a labour consultant from representing a party at a hearing before an Arbitrator. Therefore, being further alive, as it must have been, to section 92 of the Labour Act [Chapter 28:01] which deals with representation, albeit narrower in scope, of parties appearing before the Labour Court, the Legislature must be taken to have deliberately widened the scope of representation of parties in matters before the arbitral tribunal.

Both provisions are clear in their meaning and admit of no ambiguity, absurdity or any inconsistency. That being the case, it is my finding that no legal basis has been laid for recourse to the Labour Act in lieu of the Arbitration Act on the issue of representation.

It appears evident that the appellant, in its quest for a basis to ascribe mutual inconsistency to the meaning and effect of these two provisions, reached beyond and outside their clear meaning. Thus, it seeks to persuade the court to confer on Article 24(4) of the Arbitration Act [Chapter 7:15], an interpretation that is inconsistent with its clear grammatical meaning. This approach, not being justified, flies in the face of basic principles of statutory interpretation. I am not persuaded that the appellant has proved a case that justifies a departure from the general rule of interpretation stated thus in E. A. KELLY's book 'The Principles of Legal Interpretation: Statutes, Contracts and Wills', First Ed...,.:

“The language of the legislature should be read in its ordinary sense, and where it is clear, a court should not depart from the natural and ordinary meaning.”…,.

DISPOSITION

I find, when all is considered, that the appeal is without merit and must therefore fail.

In the result, it is ordered as follows; The appeal be and is hereby dismissed with costs.

It cannot be a defence for one to say that an arbitral award which is extant should not be registered because an application for condonation of the late filing of an appeal against the award has been made to the Labour Court.

The registration or recognition or enforcement of an arbitral award made in terms of the Labour Act [Chapter 28:01] can only be refused where an application for a stay of execution or suspension of the award is made in terms of section 92E(3) of the Labour Act [Chapter 28:01].

A litigant who has challenged the arbitral award by way of an appeal or review to the Labour Court must then approach that court for a suspension or stay of the award in terms of section 92E(3) of the Labour Act [Chapter 28:01]: Kukura Kurerwa Bus Company v Mukwena & Ors HH477-14; Greenland v Zichire HH93-13.

The applicant did not seek a suspension of the award.

In fact, it did not even appeal the award but did nothing until it ran out of time. All it has done is to seek condonation which would enable the filing of an appeal. The application for condonation has not been prosecuted with any form of diligence leaving the applicant without even the authority to appeal.

There can be no basis for refusing to register the award.

I have to re-state the point I made in Chaire & Ors v Mt Darwin Bazaar HH121-13…, that:-

“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 is made in terms of s92E(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 & Ors v Field-spart Investments (Pvt) Ltd HH102-13 at p 2.”

See also Greenland v Zichire HH93-13…,.

Litigants in this country are fast developing this unacceptable, and, indeed, detestful habit of trifling with courts of law and in the process succeeding in bringing the courts to disrepute.

There is no other way of describing the opposition to this application for registration of an arbitral award made against the respondent by D Mudzengi, an arbitrator, on 7 June 2011 than to say that it is trifling with the court in a regrettable manner.

The applicant was employed by the respondent, and, from the papers before me, she is still so employed, as a Project Co-ordinator/Manager. The respondent is a non-Governmental organisation running two health-related projects from two different premises, namely, 28 Van Praagh Avenue and 35 Van Praagh Avenue in Milton Park Harare. A labour dispute arose between the parties when the respondent purported to suspend the applicant from employment. The dispute was eventually referred to arbitration but the respondent did not attend the arbitration proceedings. The arbitrator made an award in favour of the applicant after observing that the respondent had been “contemptuous by not attending conciliation and arbitration proceedings despite being notified and having acknowledged receipt of such notification to attend same”, to wit:

“7.1 The respondent is ordered to pay the applicant US$261,448=14 being arrear salary and benefits arising from the date of unlawful suspension to present day. Payment should be made within 14 days of this award.

7.2 The respondent is ordered to reinstate the applicant unconditionally upon receipt of this award. Alternatively, if reinstatement is no longer an option, the applicant should be paid damages in lieu of reinstatement to be agreed between the parties within 14 days of this order, failure which either party can approach the arbitrator for quantification.”

The applicant launched this application in terms of Article 35 of the First Schedule to the Abritration Act [Chapter 7:15] for registration of the arbitral award as an order of the High Court for enforcement purposes.

Whereupon, the respondent filed opposition stating, in the opposing affidavit of Pesanai Chatikobo, the Project Co-ordinator, that there are two distinct projects run by the respondent and that the respondent based at 28 Van Praagh was not part of the arbitration proceedings. The respondent relied on the fact that the arbitral award was addressed to 35 Van Praagh, an address housing a different project of the respondent and that the address given at page 1 of the application for registration is also 35 Van Praagh and not 28 Van Praagh. Significantly, in the founding affidavit of the applicant, the respondent's address is given as 28 Van Praagh. The respondent prayed that the draft order should be amended to reflect that it is against the respondent based at 35 Van Praagh Avenue and not 28 Van Praagh Avenue Milton Park, Harare.

In my view, it is an unacceptable splitting of heirs to separate the respondent on the basis of its two (2) addresses.

What is clear is that the respondent is piloting two (2) projects from two (2) different addresses. All the correspondence between the parties, including the employment contract, record the applicant's employer as Zichire of 28 Van Praagh Avenue Milton Park, Harare. Not a single document bears number 35 Van Praagh Avenue, Milton Park, Harare. For the respondent to then contest the application for registration of the award merely on the basis that the arbitrator captures the respondent's address as 35 Van Praagh, and the application also did the same, is a trifle and a complete waste of the court's time. Indeed, it is the height of turpitude which clearly attracts punitive costs as a seal of the court's displeasure at such abuse of process.

The respondent has not given any sustainable reason why the award should not be registered.

The award remains extant and it is not for this court to question its propriety. Ndlovu v Higher Learning Centre HB86-10…,.

A party which finds itself faced with an arbitral award it is challenging should take advantage of the provisions of section 92E(3) of the Labour Act [Chapter 28:01] which empowers the Labour Court to make any interim determination for the stay or suspension of an arbitral award. Where the award has not been stayed or suspended in terms of section 92E(3) of the Labour Act [Chapter 28:01], and remains extant, this court will, as a matter of principle, register the award for enforcement unless there are grounds for not doing so as provided for in Article 36 of the Model Law contained in the Arbitration Act [Chapter 7:15].

In casu, none of the grounds for refusing recognition or enforcement of the award exist. It must therefore be registered….,.

In the result, it is ordered that:

1. The arbitral award of Hon D Mudzengi, dated 7 June 2011, in the matter between the applicant and the respondent, be and is hereby registered as an order of this court.

2. The respondent is hereby ordered to pay the applicant the sum of US$261,448=14 being salary and benefits arrears.

An arbitrator ordinarily does not give default judgment and would therefore be unable to rescind his or her own judgment.

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 10^th of October 2013, be and is hereby registered as an order of this Court.

2. The respondent shall pay costs of suit.

Section 98(15) of the Labour Act provides that where an arbitral award has been registered with the Magistrates' Court or this court, it shall have, for enforcement purposes, the effect of a civil judgment of the appropriate court.

Whether the court a quo erred by failing to make a determination on whether the arbitrator strayed from his terms of reference

The appellant submits that the court a quo erred in failing to make a determination on the issue whether the arbitrator went outside his terms of reference. This issue was raised as a ground of appeal in the court a quo and the court stated the following regarding the same:

“It is inconceivable that the appellant argues that the arbitrator erred in delving into the issue of normalising the compensation system when it was not asked to do so, yet the employer tried to normalise the system before going to arbitration by paying unexplained $40= to each employee that would put the respondents' salary at $400= from $360=.”

The only issue on the terms of reference to the arbitrator was whether or not the respondents were entitled to back-pay.

A perusal of the ruling by the arbitrator shows that he indicated that the appellant was gravitating towards “a normal payment system.” Thereafter, the arbitrator ordered the appellant to normalise its remuneration system.

This was not part of his terms of reference.

A reading of the remarks by the learned Judge shows that she failed to appreciate the issue that was before her. The court a quo presumed that the appellant was aggrieved by the fact that it was ordered to normalise the system. In making that presumption, it failed to appreciate that the grievance was that the arbitrator did not have the power to make such an order as the issue had not been placed before the arbitrator for determination.

The court a quo fell into the same error as the arbitrator. Instead of determining the ground of appeal raised on the arbitrator's alleged departure from his terms of reference, the court a quo found that the order granted by the arbitrator was already being implemented. It commented that the employer was already gravitating towards a normal payment system. It, in effect, refused to deal with the issue placed before it.

The gravamen of the complaint by the appellant was that the arbitrator had given an award on a matter that was not placed before him. He had departed from his terms of reference and the order that he gave was in breach of the law. It had no basis in law. It behoved the court a quo to consider that ground and properly find that the order was unlawful, and, as a consequence, set it aside. In consequence, the court a quo did not determine the issue that was before it. This was a serious misdirection that warrants interference by this Court. The failure by a court to appreciate the issues before it is a just cause for setting aside its order.

It is accepted that an arbitrator, unlike a court of law, is not allowed to venture outside their terms of reference when making a determination, as highlighted as follows by FOURIE J, in Bidoli v Bidoli [2010] ZAWCHC 39...,:

“An arbitrator, unlike a court, has no inherent power to decide issues or make orders that go beyond the issues which have been referred to arbitration and the pleadings filed pursuant thereto. In Hos+Med Medical Aid Scheme v Thebe Ya Bophelo Healthcare Marketing & Consulting (Pvt) Ltd and Others [2007] ZASCA 163; 2008 (2) SA 608 (SCA), LEWIS JA put it as follows at para 30:

'In my view, it is clear that the only source of an arbitrator's power is the arbitration agreement between the parties and an arbitrator cannot stray beyond their submission where the parties have expressly defined and limited the issues, as the parties have done in this case, to the matters pleaded. Thus, the arbitrator…, had no jurisdiction to decide a matter not pleaded.'"

See also Inter Agric (Pvt) Ltd v Mudavanhu & Ors SC09-15.

The applicant seeks an order setting aside the registration of an arbitral award granted in favour of the respondent. The award was submitted for registration at the High Court in terms of the provisions of the Labour Act [Chapter 28:01] and was duly registered on 25 February 2008.

The applicant submits that the registration of the award was defective in that it was done by way of a chamber application, without notice to the applicant, instead of a court application, which would have required notice to be served on the applicant.

In response, the respondent maintains not only that it proceeded lawfully…,.

Rule 230 of the High Court of Zimbabwe Rules, RGN 1047/1971, as amended, prescribes, in mandatory terms, that a court application shall be made in Form No. 29, or, where it is ex parte, in Form No.29B, which latter form is generally used for chamber applications….,.

Rule 4C gives the court or judge discretion to condone departures from the rules, while Rule 229C deals with a specific form of departure, viz., proceeding by way of court instead of chamber application and vice versa.

In terms of Rule 229C, the use of one form instead of another, of Form 29 instead of Form 29B, does not, in itself, constitute sufficient ground for dismissing the application, it being necessary for a court or judge to conclude that some interested party has thereby suffered prejudice which cannot be remedied by directions for service on the injured party, with or without an order of costs….,.

It is the respondent's alleged breach of the rules, proceeding by way of chamber instead of court application in the registration of the arbitral award, which falls squarely under Rule 229C.