Chikumbu v Allied Timbers Saligna (Pvt) Ltd. (HC 7472 of 2014) [2016] ZWHHC 51 (20 January 2016)

1 HH 51-16 HC 7472/14 KINGSTONE CHIKUMBU versus ALLIED TIMBERS SALIGNA (PVT) LTD HIGH COURT OF ZIMBABWE ZHOU J HARARE, 13 August 2015 & 20 January 2016 Opposed Application C. Ndhlovu for the applicant S. Zvinavakobvu for the respondent ZHOU J: This is an application in terms of s 98 (14) of the Labour Act [Chapter 28:01] for the registration of an arbitral award rendered by an arbitrator pursuant to an employment dispute between the applicant and the respondent. The application is opposed by the respondent on the ground that the award is contrary to the public policy of Zimbabwe. The respondent submitted, in the alternative, that the hearing of the instant application be postponed pending the determination of an application for rescission of judgment which it has instituted. The notice of opposition which was filed on behalf of the respondent was predicated upon the perceived prospects of success in the appeal which had been filed before the Labour Court against the arbitral award. That appeal was dismissed. At the time of the hearing of this matter there was no appeal which was pending in relation to the arbitral award. There is only an application for rescission of judgment which was filed on behalf of the respondent. That is not, of course, to suggest that the appeal would have constituted a valid defence to the instant application. The fact that the respondent also has a pending application for rescission of judgment is not a valid defence to the instant application for registration of the arbitral award. The application for rescission does not have the effect of suspending the operation or registration of the award. HH 51-16 HC 7472/14 In the opposing affidavit filed in casu the respondent raises the very same grounds which should constitute its grounds of appeal against the arbitral award. The respondent takes issue with the factual finding by the arbitrator as to what the monthly salary for the applicant was. The respondent also challenges the quantification of the applicant’s damages which, according to the respondent, did not take into account the capacity of the employer to pay the amount assessed. Mr Zvinavakobvu for the respondent submitted that the arbitral award is contrary to the public policy of Zimbabwe. Alternatively, he submitted that this court should stay the proceedings in the instant case pending the determination of the respondent’s application for rescission of judgment. The grounds raised in the opposing papers do not in any way show that the award is contrary to the public policy of Zimbabwe as contemplated by art. 34 (5) of the Schedule to the Arbitration Act [Chapter 7:15]. Those are factual matters which the arbitrator was better suited to determine than this court. The request for this application to be stayed pending the determination of the application for rescission of judgment is not justified as that application is pending before the Labour Court. Any relief premised upon the pendency of the application for rescission of judgment must therefore be made in that Court. In all the circumstances, there are no grounds which are valid at law which have been advanced to justify refusal of the application. In the result, IT IS ORDERED THAT: 1. The arbitral award which was rendered by Arbitrator A. Chemvura on 18 August 2014 be and is hereby registered in terms of section 98 (14) of the Labour Act [Chapter 28:01]. 2. The respondent shall pay the costs of this application. Gonese & Ndlovu, applicant’s legal practitioners Zvinavakobvu Law Chambers, respondent’s legal practitioners