CHIWESHE
JP: 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.
That 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.
That both
parties share the cost of this arbitration.”
This
application is made in terms of s 98 (14) of the Labour Act [Cap 28:01] 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.”
I
am inclined to decline the application for the reason that the award sought to
be registered does not sound in money. I am referred to the judgment of my learned
sister MAKARAU JP (as she then was) in Thandiwe
Mandiringa vs National Social Security Authority and five other similar
applications dealt with together for purposes of convenience - HH 98-2005.
I am in entire agreement with the
reasoning in that judgment. As correctly
observed in that judgment, the purpose of registering arbitral awards is to
enable the applicant to execute upon the awards by the issue of writs out of
the magistrate court or the High Court.
In terms of Rules 322 and 323 of the High Court Rules 1971, a writ may
be issued in execution of a judgment in terms of which an order in respect of the
payment of money, the delivery up of goods or premises or for ejectment. It follows that any order or judgment falling
outside the above categories cannot be executed upon by the issuance of a
writ. It has been argued that the award
under present consideration is that kind of award which although not sounding
in money itself, by its terms and wording gives rise to a formula by which its
monetary value can be calculated. Indeed
the applicants have calculated what is due to them in terms of their contracts
of employment. However, that calculation
was not part of the award itself.
The resultant figure has been
computed by one party to the dispute and has not been subjected to the
determination of an impartial arbitrator, nor has it been shown to have been
agreed to by the respondents. The figure
to all intents and purposes remains a mere claim until such time as it has been
adjudicated upon and made part of the arbitral award.
For these reasons the application is
dismissed with costs.
Maunga Maanda & Associates, applicants' legal practitioners
Bvekwa Legal Practice, respondent's legal practitioners
