Nduna v Proton Bakeries (HC 4885 of 2014) [2015] ZWHHC 164 (17 February 2015)

1 HH 164-15 HC 4885/14 JOSEPH NDUNA versus PROTON BAKERIES HIGH COURT OF ZIMBABWE MTSHIYA J HARARE, 20 January 2015 and 18 February 2015 Opposed matter T. Chiturumani, for the applicant E Matinenga, for the respondent MTSHIYA J: 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 $96 860.00 which is calculated as follows: Description Basic Salary $2600 x 24 months Use and enjoyment of company car $100 x 24 months Monthly fuel allowance 150 litres x 24 months @ $1.35 Airtime @ %50 x 24 months 60 leave days @ $2 600 x 2 months Annual bonus x 2 months Company House @ $500 x 24 months Non-contributory medical aid (3 people @ $150 per month) $3 600.00 Total Amount $62 400.00 $2 400.00 $4 860.00 $1 200.00 $5 200.00 $5 200.00 $12 000.00 $96 860.00 ” 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 s 98 (14) of the Labour Act [Chapter 28:01] (the Act) which provides as follows: “Any party to whom and 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 HH 164-15 HC 4885/14 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 s 98 (13) of the Act, 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 s 98(15) of the Act 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, HH 30/13. 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 s 92 E (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 (5) MALABA JA, as he then was, said:- ‘The object of an interim determination made under s 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 judgement 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, HH 204/10, he said: HH 164-15 HC 4885/14 “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 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) 282 B, 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 s 92D of the Act. The noting of that appeal had the effect of suspending the judgement of the Labour Court and the arbitrator’s determination.” In line with the above, I would have certainly taken a different view of the matter if evidence had been placed before me to confirm that the Labour Court decision had indeed been appealed against in the Supreme Court. There was no such evidence. However, given the fact that the applicant can still seek leave to execute pending appeal, registration, in my view, remains necessary. If not complied with, the award only becomes enforceable/executable upon registration as a court order. I do not think the applicant should be denied the right to apply for execution pending appeal. The applicant can only do so if the award is registered as a court order. It was conceded that the respondent could in law stop the execution of the registered award i.e. if it had grounds to do so. It was, however, argued that such process would merely amount to a multiplicity of actions. Be that as it may, I have no legal basis to deny the applicant the relief that he seeks to exercise in terms of the law. The law allows him to register the award granted by the arbitrator. I must point out that, in casu, I am not seized with an appeal or review of the award. In the main the respondent’s arguments were an attack on the process that led to the granting of the award, which award was also challenged on the merits. That is not what is before me. In view of the foregoing, the application should succeed. It is ordered that: 1. The Arbitral Award that was handed down by Arbitrator Mrs K Segula on the 10th October 2013, be and is hereby registered as an order of this Court. 2. The respondent shall pay costs of suit. HH 164-15 HC 4885/14 T. K. Hove & Partners, applicant’s legal practitioners Messrs Honey & Blankenburg, respondent’s legal practitioners