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.
3. That both parties share the
cost of this arbitration.”
This application is made in terms
of section 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
