Peter Gambara & 24 Others v Zimbabwe Commercial Farmers Union

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HH 277/13
HC11376/12
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PETER GAMBARA & 24 OTHERS

versus

ZIMBABWE COMMERCIAL FARMERS UNION

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 3 & 11 September 2013

Opposed application

Sithole, for applicant

O. Kawonde, for respondent

MTSHIYA  J:  On 12 June 2012 Arbitrator D. Mudzengi gave the following award in favour of the applicants.

“My award is as follows:

It is ordered that respondent pays $77 373.41 salary arrears to the 25 employees within 21 days of this award. The names of the employees and the amounts owed are as per the attached schedule.

Claimants’ claim of unfair dismissal is hereby dismissed.”

As can be seen, the award covered 25 employees but this application for the registration of the award has been brought by 16 of the 25 employees. The application is being brought in terms of Section 98(14) of the Labour act [Chapter 28:01] (the Act) which provides as follows:-

“14.	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.”

Following the above award, the respondent filed an appeal in the Labour Court. It also, through an urgent application, managed to obtain an order from the Labour Court staying the execution/enforcement of the award.

Whilst this application, which was filed on 1 October 2012, was still pending in this court, on 19 February 2013, through a default order, the Labour Court dismissed the respondent’s appeal against the award and confirmed the award. It is therefore the confirmed award that the applicants seek to register.

I must point out that the heads of argument filed herein by both parties were prepared without the knowledge that the appeal against the award has since been dismissed and that no application had been filed for the rescission of the default judgment. However, notwithstanding the fact that the award has now been confirmed and therefore removing the need for stay of execution, the respondent is still opposed to the registration of the award.

Mr Kawonde, for the respondent argued that the award could not be registered on a piece meal basis. He said that although the award covered 25 employees, only sixteen employees were interested to have the award registered. He said it was not for this court to amend the award. He was correct.

However, the award, in my view, has since been confirmed by the Labour Court and as such what is sought to be registered is now an order of the Labour Court .

Section 92B(3) of the Act, contains a similar provision to Section 98(14) of the Act, under which this application was made.

Section 92B(3) provides as follows;

“(3)	Any party to whom a decision, order or determination relates may submit for registration the copy of it furnished to him in terms of subsection (2) to the court of any magistrate which would have had jurisdiction to make the order had the matter been determined by it, if the decision, order or determination exceeds the jurisdiction of any magistrates court, the High Court.”

Accordingly what has since transpired is that the award is now being registered against a background of confirmation by the Labour Court on 19 February 2013. It is further important to note that the registration of the award does not remove control of same from the Labour Court which confirmed it. This is so because Section 92B(5) of the Act provides as follows:

“5.	If any order which has been registered in terms of subsection (4) has been rescinded or altered by the Labour Court in terms of section ninety-two C, the clerk or registrar of the court concerned shall make the appropriate adjustment in his register.”

As already stated there is now no impediment to the registration of the award since the appeal has fallen away, and so is the stay of execution.

The argument that because only 16 employees have brought the matter before the court, the award has become unregistrable, lacks merit. A clear reading of the law shows that; “any party to whom an arbitral award relates may submit” the award for registration. This is the wording in both provisions of the law quoted above (i.e. sections 98(14) and 93B(3) of the act. The 16 employees who are before the court are beneficiaries of the award. The fact that 9 of their colleagues have, for their own reasons, not decided to seek to enforce their rights, does not stop them from proceeding with this application.

In view of the foregoing, my finding is that there is nothing that militates against the registration of the award as prayed for by the applicants. Accordingly the award ought to be registered (see Benson Samudzimu v Dairibord Holdings, Ltd HH 204/10).

It is therefore ordered that:-

The arbitral award by D, Mudzengi dated 12 June 2012 be and is hereby registered as an order of this court; and

The respondent shall pay costs of this application.

Messrs Mushangwe and Company, applicants’ legal practitioners

Messrs Kawonde and Company, respondent’s legal practitioners