Ericson Mvududu v Agricultural and Development Authority (ARDA)

### Preamble
1
HH 286-11
HC 8846/10
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ERICSON MVUDUDU

versus

AGRICULTURAL AND DEVELOPMENT AUTHORITY (ARDA)

HIGH COURT OF

BHUNU J

HARARE, 12 January 2011 and 23 November 2011

Chamber Application

O Shava, for the applicant

L Uriri, for the Respondent

BHUNU J:  The applicant was employed by the respondent as its Chief Executive Officer. On 27 October 2010 he obtained an arbitral award against the respondent under the Labour Act [Cap 28:01] in the following terms:

“In the final analysis therefore, I order that respondent pay the claimant as follows:

Backpay and benefits in the sum of US$19 384-09

Cash in lieu of leave

Sixty (60) months salary from 26 January 2010 as damages for loss of employment in the sum of US$60 540-00

Sixty (60) months salary as punitive damages in the sum of US$60 540-00

Interest at the prescribed rate.”

The applicant has now filed the award for registration with this court in terms of s 98 (14) of the Act as a prelude to seeking payment of US$140 464-09. Despite having been successful to a large extent, the applicant appealed to the  against the award on the basis that the award was inadequate and the respondent cross-appealed.

The relevant section provides that:

“(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.

Where an 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.”

The respondent is resisting the registration on the basis that the applicant cannot seek to enforce a judgment he has appealed against. There are two cardinal issues for determination in this application. The first issue is whether the applicant is automatically as a matter of right entitled to register an award upon satisfying the conditions specified in s 98 (14) of the Act. In order to qualify for registration all what an applicant has to do is to satisfy the court that:

a)	 He is a party to the arbitral proceedings.

b) 	The award relates to him.

c)	The copy he is presenting for registration has been duly certified by the arbitrator in terms of subs (13).

Once the applicant has satisfied the above three requirements he is entitled as of right to register the arbitral award in terms of s 98 (14) as read with subs (13).

Any opposition to registration is therefore limited to showing that the applicant has not satisfied anyone or more of the three prescribed requirements for registration. Thus the respondent can only succeed in opposing registration if he proves on a balance of probabilities that:

a)	The applicant is not a part to the proceedings.

b)	The arbitral award does not relate to him.

c)	The copy presented for registration is not a duly certified copy in terms of subs (13).

In this case the applicant has unquestionably managed to satisfy all the three requirements for registration. He has shown without any contradiction that he is a party to whom the arbitral award relates and that the copy he is presenting for registration was duly certified by the arbitrator.

According to the Thesaurus Dictionary the term register is interpreted to mean, “.list, record, catalog, roll index, inventory, chronicle or schedule.”

Given its ordinary and grammatical meaning by seeking registration of the arbitral award the applicant is simply seeking at this stage the conversion of the award into an order of this court to render it capable of enforcement in terms of the rules of this court since the Labour Court and related arbitration tribunals have no machinery for enforcing their judgments.

While it may be correct that at common law it is incompetent for one to seek enforcement of a judgment or order one is appealing against as articulated by STEEENKAMP AJP in Municipal & Allied Trade Union & Ors v Mec: Environmental Affairs 1999 (4) SA 1999 (4) SA 26, for purposes of registration of the arbitral award this legal principle is inapplicable as it has no relevance to the registration process.

The Labour Act does not provide for the suspension of the registration of an arbitral award in terms of the Act and I know not of any law statutory or otherwise that provides for the suspension of the registration of an arbitral award pending appeal.

That being the case, I can perceive no lawful reason why the applicant cannot register the arbitral award he obtained against the respondent on 27 October 2010. Once the arbitral award is registered, we immediately proceed to the second stage where the court is enjoined to determine whether the registered award is enforceable notwithstanding the pending appeal to the Labour Court.

The first issue for determination in this respect is whether the noting of appeal by either party suspended execution of the arbitral award pending the Labour Court’s determination on appeal. Section 92E of the act regulates appeals to the  generally. It provides that:

“92E Appeals to the Labour Court generally

An appeal in terms of this Act may address the merits of the determination or

decision appealed against.

(2) An appeal in terms of subs (1) shall not have the effect of suspending the

determination or decision appealed against.

Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires”

The Supreme Court has already ruled in the case of Sagittarian (Pvt) Limited v Workers’ Committee, Sagittarian (Pvt) Limited 2006 (1) ZLR 115 that the provisions of s 97 (4) now 92 E do not apply to an appeal made in terms of s 98 of the Act.

In other words where an appeal is made in terms of s 98 there is no express provision in the Labour Act to the effect that an appeal shall not have the effect of suspending the determination or decision appealed against. There being no such provision one has to turn to common law for an answer. Van Winsen, The Civil Practice of the Superior Courts in South Africa 3rd Ed at p 643 states that:

“At common law the execution of all judgments is suspended upon the noting of an appeal. The foundation of this rule is to prevent irreparable damage from being done to the intending appellant, whether such damage be done by a levy under a writ or by the execution of the judgment in any other manner appropriate to the nature of the judgment appealed from but by statutory instrument or rule of court the trial court is usually empowered, upon application being made to it to exercise a discretion in ordering execution of a judgment appealed against subject to security.” (My emphasis)

The learned author goes on to clarify the apparent confusion introduced by MUNGWIRA J in the case of Founders Building Society v Mazuka (1) ZLR 526 531 in which she quoted GILLESPIE J with approval in the case of Vengesai & Ors v Zimbabwe Glass Industries 1998 ZLR 593 (H) at 598 suggesting that the common law rule that an appeal suspends the decision appealed against is limited to superior courts of unlimited jurisdiction. In that case GILLESPIE J had this to say:

“In stating the common law, CORBETT JA referred to the automatic stay of execution upon the noting of appeal, as a general rule of practice. That is, not a rule of law, but a long established practice regarded as generally binding, subject to the court’s discretion. The concept of a rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal or authority is a creature of statute and bound by the four corners of its enabling legislation. Moreover, the authorities cited by CORBETT JA are authorities relevant to appeals from superior courts.”

At p 719 the learned author however, goes on to say the rule applies to all adjudicating authorities without exception including the magistrate’s court. He then states that:

“When a magistrate’s court makes no order in terms of the above provisions, the ordinary common-law rules govern the matter, and execution is automatically suspended by the noting of an appeal.”

The Magistrate’s Court being an inferior court of limited jurisdiction it cannot be treated differently from the Labour Court. Thus the noting of the appeal to the labour court in terms of s 98 (10) of the Act automatically suspended the arbitral award appealed against.

It is however common cause that the applicant did not appeal against the whole determination of the arbitrator. He merely appealed for a higher award than that granted by the arbitrator. That conduct does not in my view amount to an appeal against or rejection of the lesser amount granted by the arbitrator. It stands to reason that an appeal for more does not without more constitute a rejection of the lesser amount already given.

In the case of Phiri & Ors v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S) the Supreme Court reaffirmed the common law position to the effect that in the absence of statutory provisions to the contrary, an appeal to the Labour Tribunal now the Labour Court suspends the decision appealed against. The Supreme Court was however careful and quick to point out that where a litigant has only appealed against a portion of a judgment the suspension only applies to that portion of the judgment appealed against. It does not extend to portions not appealed against. The applicant’s appeal against the non award of more damages than those awarded by the arbitrator has therefore no bearing on the amount granted by the arbitrator. The amount granted by the arbitrator is therefore subject to the universal common law rule that an appeal suspends the decision appealed against.

Section 98 (15) however, states that where an 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.

What this means is that upon registration with this court an arbitral award is converted into a civil judgment of this court for purposes of enforcement only. That being the case, this court has the power upon proper application to determine in terms of the High Court Rules whether or not execution should be effected notwithstanding the noting of appeal to the Labour Court.

In the result it is ordered:

That the application for registration of the arbitral award granted to the applicant by the arbitrator on 27 October 2010, be and is hereby granted.

That the noting of appeal to the Labour Court in terms of s 98 of the Labour Act [Cap 28:01] suspended the determination of the above arbitral award pending appeal.

That the applicant shall not execute the registered arbitral award without leave of this court to execute the arbitral award pending appeal.

That as both parties have been equally successful there is no order as to costs.

Mbidzo Muchadehama & Makoni, applicant’s legal practitioners

Honey & Blankenberg, respondent’s legal practitioners