Budget JANI VS Orchard LANE (Pvt) LTD T/a Matonjeni

### Preamble
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HH 354/12
HC 3930/12
BUDGET JANI
versus
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BUDGET JANI
versus
ORCHARD LANE (PVT) LTD t/a MATONJENI

HIGH COURT OF ZIMBABWE
HUNGWJE J
HARARE, 5 September 2012 & 19 September 2012

Chamber Application for registration of an arbitral award in terms of section 98(13) of the Labour Act, [Chapter28:01]

HUNGWJE J: On 1 June 2012 I granted an order registering an arbitral award granted on 29 March 2012 in favour of the applicant as an order of this court. The grant of the order followed an application filed through the chamber book on 11 April 2012. Upon perusal of the papers, I was not satisfied the provisions of s 98(13) of the Labour Act, [Cap 28:01] (“the Act”), had been complied with. Consequently, I directed that;

(a) a certificate duly signed by the arbitrator in terms of s 98(13) of the Act be filed; and
(b) that service of the chamber application be served on the respondent by the Deputy Sheriff.

The applicant complied with my directive and filed proof of service upon the respondent of the chamber application. Upon being satisfied that the application was in order, I granted it.

Where a chamber application is for default judgment in terms of r 57 or for other relief where the facts are evident from the record, it shall not be necessary to annex a supporting affidavit. (Order 32 Rule 241(2)). Section 98(9) of the Act bestows upon the arbitrator the same power as that held by the Labour Court. Section 98(14) of the Act permits a party to arbitration to register an award in the court of appropriate jurisdiction.

At the time when I considered the applicant’s papers, there was nothing whatsoever to warn me that an appeal against the arbitral award had been lodged by the respondent. Further, the respondent had an opportunity to bring this to my attention when it was served with the application in compliance with my directive of 2 May 2012. It did not. There is nothing to date filed by the respondent to indicate that indeed it has filed such an appeal with any court of competent jurisdiction. In any event, there is no requirement that the court considering an application for registration enquires with the parties whether an appeal has been noted against the arbitral award. It is up to the parties to bring all such facts as are relevant to the application as would assist the court in determining whether the arbitral award should be registered or not. In short these are the reasons upon which I was satisfied that the applicant had met the requirements of the rules and granted the order.

The question whether an appeal lies against the registration of an arbitral award appears to be for the proper determination of the court seized with the respondent’s appeal. I only need to point out that contrary to the averment in the “notice of appeal” I did not give judgment on 5 June 2012. What happened on that date is that the applicant took the next procedural step in satisfying the judgment obtained before the arbitrator on 29 March 2012 by taking out a writ of execution against the respondent. The order of 1 June 2012 is, in my respectful view, akin to a procedural directive. It is a command that a certain act be done; an authorization; a decree or instruction, so to speak. Taken in its proper perspective, the order of 1 June 2012 under my hand was another procedural step required to secure the intervention of a court of competent jurisdiction since an arbitrator is not authorised to execute his judgments. In this regard, the judgment in this matter was given by the arbitrator on 29 March 2012. On the other hand, a judgment is the evaluation of evidence in the making of a decision. In the legal context, this refers to the final binding statement or opinion or ruling based on a considered weighing of evidence otherwise called adjudication. A judgment is a formal decision given by a court or quasi-judicial body following a process of adjudication. In short it is a determination of a court of law or a quasi-judicial body in the nature of, or a judicial decision.

I have been served with a “Notice of Appeal” against the said order together with a note from the Registrar of this court kindly requesting from me “reasons for the judgment” in this matter. This request is my sole reason for setting out the background to the grant of the order I gave on 1 June 2012. I advisedly say “sole reason” because in normal circumstances no reasons are given for the granting of the relief dated 1 June 2012. This must be so because registration of a judgment or an award is automatic as long as that judgment or award is extant. A certificate from the relevant court or arbitrator is sufficient indicator that the judgment is extant. Registration in this court is only for the purpose of the issuance of a writ of execution to follow through. Whether such a judgment is under appeal elsewhere or not does not really come into the picture since the party which has appealed can seek a stay in the forum which granted the judgment on the merits. That forum is properly positioned to grant such a stay as it is well-versed with the merits to assess the prospects of such an appeal.

The “Notice of Appeal” recites that it is directed “against the whole of the judgment....handed down on 5 June 2012.” As I said, judgment in this matter was given on 29 March 2012 by the arbitrator. Generally, no appeal lies against arbitral awards. An appeal will lie against an award only when there is some statutory provision permitting such an appeal. In my view, no appeal lies against an order of this nature as it is merely interlocutory in effect. There are other steps remaining on the journey to finality in the matter and as such none of my orders are appealable.

It is for the above reasons that I took the opportunity comment on the notice of appeal.

J Mambara & Partners, applicant’s legal practitioners
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