Michael Manzini and Samuel Chitenderano Rwambiwa v Nedbank Zimbabwe Limited (formerly Merchant Bank of Central Africa)

### Preamble
HH 572-25
HCH 5336/24
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MICHAEL MANZINI (1)

and

SAMUEL CHITENDERANO RWAMBIWA (2)

versus

NEDBANK ZIMBABWE LIMITED

(formerly MERCHANT BANK OF CENTRAL AFRICA)

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE: 18 & 29 September 2025

Opposed Application

1st applicant in person

2nd applicant in default

O. Kondongwe, for the respondent

DEMBURE J:

1.	On 18 September 2025, the court, after hearing oral arguments from the first applicant and counsel for the respondent, handed down an ex tempore judgment, the operative part of which was that the application was dismissed with no order as to costs. Following this decision, the first applicant requested the written reasons for my decision. What follows are the full reasons thereof.

2.	The applicants approached this court seeking the registration of an arbitral award for purposes of enforcement in terms of s 98(14) of the Labour Act [Chapter 28:01] (“the Act”). The applicants sought an order that:

“1. 	The Application for registration and enforcement of an arbitral award made by Honourable Arbitrator KARE N.O. on 8 February 2013 under case number 2312/12, as specified in the quantification dated 10 November 2017 and which is referenced ….. as an order of the court of the High Court be and is hereby granted.

2. 	First Respondent shall bear punitive costs on a higher client/legal practitioner scale.”

THE FACTS

3.	The following facts are common cause:

3.1	The first applicant is Michael Manzini, a male adult Zimbabwean. The second applicant, Samuel Chitenderano Rwambiwa sued in his capacity as the executor dative of the estate of the late Brian Kashiri DR 635/15 in terms of the Letters of Administration issued by the Master of the High Court on 4 August 2015. The late Brian Kashiri died on 25 December 2012. The respondent, cited in the application as “first respondent”, is Merchant Bank of Central Africa, now known as Nedbank Zimbabwe Limited, a body corporate which is registered as a banking institution in terms of the laws of Zimbabwe.  Although in para 11 of the first applicant’s founding affidavit, there was reference to the Arbitrator Kare being the second respondent cited in his official capacity, he was, however, not cited in the notice of motion.

3.2	The first applicant, the late Brian Kashiri and one Vivian Mantiziba, who initially was also a party to the proceedings before the Labour Court, are all former employees of the respondent. They were retrenched by the respondent on 21 November 2011. The applicants then alleged that there was an incorrect calculation and non-payment of their retrenchment packages. The dispute was referred to compulsory arbitration by the labour officer in terms of s 93(5)(c) of the Labour Act. One M C Kare, an independent arbitrator appointed to handle the dispute, issued an arbitral award on 8 February 2013 holding that, as the arbitrator, he had the jurisdiction to deal with the matter and that the respondent had committed an unfair labour practice by “deliberately miscalculating” the applicants’ retrenchment packages. It was ordered that “the respondent re-calculate the packages of each of the three claimants [who included the applicants]”.

3.3	After this arbitral award, the dispute spilled into the Labour Court. The parties became embroiled in several litigations since 2013 as the respondent sought to have the arbitral award reversed. On 10 November 2017, the arbitrator went on to issue an arbitral award quantifying the amounts payable to the applicants in terms of the 2013 award. The respondent was ordered to pay the applicants the following:

“(i) 	$54 206.61 plus interest at the prescribed rate on this amount from 30 January 2012 to the date of full payment to Michael Manzini.

(ii) 	…

(iii) 	$25 138.68 plus interest at the prescribed rate from 30 January 2012 to the date of full payment to the Estate of the late Brian Kashiri.”

3.4	The respondent further challenged the said arbitral award, which quantified the amounts payable to the applicants, through an application for review. The matter at one time went all the way to the Supreme Court on appeal. On 26 January 2023, the Supreme Court issued an order by consent allowing the applicants’ appeal and setting aside the Labour Court judgment. It further remitted the matter to the Labour Court for the determination of the matter on the merits. After this judgment, the Labour Court heard the matter under Case No. R- LCH/REV/4/18 and on 20 May 2024 issued an order granting the respondent’s application for review. The order provides as follows:

“1. 	The application for review be and is hereby granted.

2.	The Arbitral Award handed down by Arbitrator Kare on 10th November 2017 be and is hereby set aside.

3. 	There is no order as to costs.”

3.5	The applicants requested the reasons for the Labour Court’s decision as per makamure J. The full judgment was handed down on 11 November 2024 as number LCH/454/24. See pp 29-36 of the record. The said order or judgment setting aside the arbitral award by Arbitrator Kare dated 10 November 2017 is still extant. In para 25 of the applicant’s founding affidavit, the first applicant acknowledged that the arbitral award by Arbitrator Kare dated 10 November 2017 was set aside by the Labour Court.

4.	The first applicant averred that the judgment, having been issued by the court without jurisdiction, was a nullity and accordingly of no effect and ought to be ignored. He accordingly sought that the arbitral award be registered for purposes of enforcement in terms of the law. I hasten to say that the applicant’s affidavits also incorporated legal arguments or submissions, including citing cases extensively. It is trite that an affidavit does not have to plead the law. Legal arguments, including the citation of case law authorities, must be reserved to the stage of the filing of heads of argument. However, taking into account that the applicant was a self-actor and also that the respondent did not seek to strike out the offending paragraphs in the said affidavits, I proceeded to deal with the matter in the interests of justice. It is trite that courts must give special consideration to self-acting litigants and accommodate procedural or legal shortcomings which are not fatal and ensure a fair process. See Crnkovic v Mpofu CCZ 01-24 where makarau JCC said:

“As observed right at the outset, the applicant is a self-actor. His right to appear before the Court in person is guaranteed by the Constitution itself.

The right of all litigants to appear before this Court in person if they so elect, creates a special duty on the part of the Court. In its even handedness, the Court must not only bend over backwards to accommodate any shortcomings in the procedures adopted by the litigants and in the legal submissions they make, it must ensure that the playing field is even. This, the court must do to the extent possible but without creating the perception that it has entered the arena and has substituted itself for the self-acting litigant.”

5.	The first applicant further averred that the Labour Court had no jurisdiction to hear and determine the application for review of the arbitral award in question. He argued that the award being a product of compulsory arbitration, only the High Court is the competent court to deal with a review of such an award in terms of s 98(2) and (9) of the Labour Act as read with article 34(1) and (2) of the Model Law, which is part of the Arbitration Act [Chapter 7:15]. It was, therefore, the first applicant’s contention that the resultant order by the Labour Court made without jurisdiction was invalid, and accordingly, it must be disregarded to allow for the registration of the arbitral award.

6.	The application was opposed. The respondent contended that the application was without merit and ought to be dismissed to bring finality to the matter. A point in limine was further raised that the application was improperly before the court. The basis for this preliminary point was that the applicants made an application for registration of an award which was set aside by the Labour Court under Case No. R-LCH 04/18 (which should have read R-LCH/REV/04/18). It could not be registered since it was set aside. It further averred that the dispute between the parties was now res judicata following the Labour Court judgment in R-LCH/REV/04/18. It also further contended that the 2013 award was also not registrable as it was not a quantification award. The quantification award pursuant to the 2013 award was then set aside by the Labour Court. The respondent prayed for the dismissal of the application with costs on an attorney-client scale.

7.	On 12 December 2024, the first applicant filed an answering affidavit. He raised the following preliminary points:

7.1	That respondent’s notice of opposition was invalid for want of a board resolution authorising the deponent (one Chipo Masawi) to depose to such affidavit;

7.2	That the purported opposing affidavit failed to comply with the law governing a notice of opposition in that:

The respondent did not advert to the issue of the jurisdiction of the Labour Court when regard was had to the provisions of s 98(2) and (9) of the Labour Act;

The respondent did not dispute the fact that it did not pay its share of the arbitration costs in respect of the quantification award and had, therefore, waived its right to the due protection of the law as provided by article 35(2) of the Model Law.

8.	The first applicant maintained that r 20(1) of the Labour Court Rules, 2017, in terms of which the Labour Court purportedly set aside the quantification award, does not apply to disputes subject to compulsory arbitration. To that extent, he reiterated that the Labour Court had no jurisdiction and its order was void ab initio.

9.	At the hearing, the first applicant, who was still self-acting, argued the four preliminary points, namely that:

9.1 	There was no valid notice of opposition as there was no board resolution attached to the opposing affidavit;

9.2	The respondent failed to pay arbitration costs and, therefore, waived its rights to seek protection of the law;

9.3	The opposing affidavit did not advert to any of the applicant’s assertions in the founding affidavit. It lacked substance.

9.4	There was no evidence attached to the purported opposing affidavit in the way of either a court order or judgment of the Labour Court.

10.	I had to deal with the first preliminary point.

FIRST PRELIMINARY POINT

THE VALIDITY OF THE NOTICE OF OPPOSITION

ORAL SUBMISSIONS FROM THE PARTIES

11.	In support of the point in limine raised in the answering affidavit that there was no valid opposition before the court as there was no board resolution attached to the opposing affidavit authorising the deponent to depose to the affidavit, the first applicant went on to submit that Nedbank is a known entity. He argued that it is common cause that the respondent is a legal persona. He further submitted that he cited in his submissions a number of Supreme Court authorities and another one by the Constitutional Court of South Africa in support of his assertion. There is a seminal judgment in the case of Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514(S). It is settled that the common law position is that an entity has to produce the board resolution in order to support the person standing in for that entity.

12.	Per contra, Mr Kondongwe submitted that the first point relating to the question of authority to depose to an affidavit was answered in the respondent’s heads of argument. He argued that they had cited case law that specifically stated that the issue of whether or not someone has authority to depose to an affidavit is a factual enquiry, not a legal one. Counsel also argued that a mere assertion that someone is not authorised without the necessary evidence to show that they were not authorised does not suffice. In the heads of argument, counsel referred to the following cases as supporting the respondent’s argument: Delta Beverages (Sorghum Operations) & Anor v Chirau HH 421-18 and Direct Response Marketing (Pvt) Ltd v Shepherd 1993 (2) ZLR 218 (H).

13.	Counsel further argued that the deponent to the opposing affidavit is actually known to the applicant. She said that she is the Head of Legal and Assistant Company Secretary of the respondent. She further stated that she swore positively to the facts which are known to her as required by the rules and that she was authorised. See p 108 of the record. It was not enough in the absence of evidence placed before the court that there was no Chipo Masawi who works for Nedbank in that position and that she had not been authorised to represent the company. It was his further submission that the cases relied upon by the respondent supported the averment that one who is alleging lack of authority on the part of the deponent must do more than to make a simple allegation. It is a factual enquiry. For that reason, the point lacked merit.

14. 	Mr Kondongwe also argued that, in the alternative, if the court requires that the respondent do more, the authority of CABS v Magodo HH 331/15 held that a resolution can be produced at any time during the proceedings, even from the bar. He further argued that, should the respondent be required to produce the resolution, the matter may be stayed. As Chipo Masawi said that she was authorised and she was prepared to present that board resolution to satisfy the applicant’s objection. But to say that the opposition was defective for the lack of a resolution was to bring a legal point where it is a factual enquiry. The mere assertion that the lack of resolution invalidates the affidavit was not proper, and the point in limine must fail.

15.	In his reply, the first applicant argued that the authorities cited by the respondent are from the lower court. He had, on the other hand, cited authorities from the Supreme Court. The Supreme Court authorities are binding. He further submitted that he objected to the issue raised of pleading to the court to allow the respondent to go and seek a resolution. It was akin to trying to bolt the stable when the horse has already left.

THE APPLICABLE LAW

16.	The settled principle of the law is that a company, being an artificial or legal persona, must be represented in any legal proceedings by a person who has been authorised by the entity to do so. The Supreme Court, after reviewing all authorities, including those from this court and the Madzivire case (supra), authoritatively settled the issue relating to authority to act for a company in legal proceedings in Dube v Premier Service Medical Aid & Anor SC 73/19. garwe JA (as he then was) had this to say:

“The reality is that there have been conflicting decisions in the High Court on the question whether a deponent who purports to represent a legal entity is required, in all cases, to prove that he is duly authorised to represent the legal entity. On the one hand a number of cases have relied on the judgment of this Court in Madzivire (supra) in determining that proof of such authority is necessary in all cases – see for example Deputy Sheriff, Chinhoyi v Appointed Enterprises & Ors HH 450/13; First Mutual Investment (Private) Limited v Roussaland Enterprises (Private) Limited T/A Third World Bazaars HH 301/17. On the other hand, a number of cases from the same court have held that proof of such authority was not necessary in all cases. The latter cases made no mention of the decision of this Court in Madzivire and appear to have been oblivious to its existence as authority on this topic – see for example African Banking Corporation of Zimbabwe Limited t/a Banc ABC v PWC Motors (Pvt) Ltd & 3 Ors HH 123/13; Tianze Tobacco Co (Pvt) Ltd v Muntuyadzwa HH 626/15; Mukomba v Unibox Investments t/a Arundel Village Spar HH 539/15; Trustees of The Makono E Chimanimani v Minister of Lands & Anor 2016 (2) ZLR 324 (H).”

The court further said:

“In a decision reported as Madzivire & Ors v Zvarivadza & Ors (supra), at 515, this Court (per cheda JA) remarked as follows:-

“A company, being a separate legal person from its directors, cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle, which the courts cannot be ignored. It does not depend on the pleadings by either party. The fact that the person is the managing director of the company does not clothe him with the authority to sue on behalf of the company in the absence of any resolution authorising him to do so. The general rule is that directors of a company can only act validly when assembled at a board meeting. As exception to this rule is where a company has only one director who can perform all judicial acts without holding a full meeting.”

[38] The above remarks are clear and unequivocal. A person who represents a legal entity, when challenged, must show that he is duly authorised to represent the entity. His mere claim that by virtue of the position he holds in such an entity he is duly authorised to represent the entity is not sufficient. He must produce a resolution of the board of that entity which confirms that the board is indeed aware of the proceedings and that it has given such a person the authority to act in the stead of the entity. I stress that the need to produce such proof is necessary only in those cases where the authority of the deponent is put in issue. This represents the current state of the law in this country.” (My emphasis)

17.	It is accordingly settled that evidence of authority is required in the form of a board resolution where the authority of the deponent has been challenged. In the absence of such proof of authority, the purported pleading on behalf of a company or legal entity is invalid.

APPLICATION OF THE LAW

18.	In casu, the deponent to the respondent’s opposing affidavit at p 108 of the record is stated as one Chipo Masawi. She averred that the facts she deposed to were within her personal knowledge and that she was the Head of Legal and Assistant Company Secretary authorised to depose to the affidavit on behalf of the company. There is no dispute that there was no board resolution that was attached to the said opposing affidavit. The applicant challenged her authority to act for the respondent in the answering affidavit, thereby putting her authority to act for the respondent in issue. The Dube case (supra) authoritatively settled the law that when such authority is put in issue or challenged, the proof of such an authority in the form of a board resolution becomes a requirement to validate the purported proceedings on behalf of the company.

19. 	It is clear that the law requires that the board resolution must be produced once the deponent’s authority is challenged or put in issue. The said Chipo Masawi’s averment that she was authorised without producing the board resolution is insufficient to clothe her acts with authority. In the absence of such proof of authority in the form of a board resolution, the respondent’s opposing papers are invalid. This was confirmed as representing the current law in this jurisdiction in the Dube case (supra). The Supreme Court, having settled the law it could not assist Mr Kondongwe to refer to the decisions of this court, namely the Delta Beverages and Direct Marketing Response Marketing cases (supra). Besides these cases being decided before the Dube case, this court is bound by the principle of stare decisis to follow the decisions of the Supreme Court in similar cases. Once the Supreme Court has spoken, its opinion or decision is final except in relation to constitutional matters. Its decisions are binding on all courts except the Supreme Court itself, and its decision on a non-constitutional matter cannot be altered by any court. See Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CCZ 11/18. The same legal position was restated in Shah v Nherera SC 55/24, where chatukuta JA made the following remarks:

“26. The Supreme Court had spoken. Decisions of this Court are absolute as the Supreme Court is the final court of appeal in all matters, except in matters of a constitutional nature.  The court in Kasukuwere v Mangwana SC 78/23, at p 17, quoted with approval the case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited & Anor 2018 (2) ZLR 743 (CCZ) at 757 A wherein it was held that:

“What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters. A decision of the Supreme Court on a non-constitutional matter is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct.

The correctness of the decision at law is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter.”

27. The Supreme Court decision, being final was correct. Because of the principle of stare decisis, the decision was binding on the court a quo.  The principle of stare decisis is that a lower court cannot depart from findings on questions of fact and law made by a superior court. See Denhere v Denhere & Anor CCZ 9/19, Diana Farm (Pvt) Ltd v Madondo NO & Anor 1998 (2) ZLR 410 (H).”

20.	Given the decision in Dube (supra), I accordingly cannot accept Mr Kondongwe’s argument that the affidavit’s validity is not affected where, in a case as the present one, the board resolution is not produced to support any claim of authority to act in the stead of the entity where such authority has been challenged. In other words, once put in issue, the proof of authority must be produced to validate any act in the stead of the entity. In casu, the respondent erroneously took a position that such proof was not required and sought to cast the burden on the applicant to establish that the deponent had no authority. But since it was the deponent who alleged that she was authorised by the company to depose to the affidavit on its behalf, it was up to her to establish such authority through a board resolution once it had been challenged or put in issue. The board resolution was never placed before me, even from the bar. That rendered the purported notice of opposition before me fatally defective or invalid. It was not a valid act in the stead of the respondent.

21.	There was an argument in the alternative that, should the court require that the board resolution must be produced, the matter can be stayed for the deponent to seek to produce the resolution. It is not the court which requires that the resolution be produced when authority is challenged; it is the law. There was no application for any stay of proceedings or postponement of the matter for the production of the resolution, save for mere submissions from counsel. If indeed he was making the application, he did not motivate it. The nature of such an application is an indulgence not merely granted on mere asking. In any case, an application for postponement is not a right obtainable from the court on demand. It is an indulgence that involves the exercise of the court’s discretion, which it only properly exercises once all the requirements for an application of that nature are addressed. See Apex Holdings (Pvt) Ltd v Venetian Blinds Specialists Ltd SC 33/15.

22.	Mr Kondongwe merely submitted that the resolution can be placed before the court if the matter is stayed. In any case, I agree with the first applicant that the respondent sought to close the stable when the horse had already bolted. The respondent had ample time to place the evidence of the authority to defend the application for the deponent, as the issue was raised more than eight (8) months ago, sometime back in December 2024, when the answering affidavit was filed. The respondent remained defiant in its heads of argument and even before me in oral submissions that its pleading was valid despite the clear position of the law as settled in the Dube case (supra). It ought to have dawned on the respondent’s counsel that its position was completely untenable. There is no doubt that the respondent’s opposing affidavit and, consequently, the notice of opposition before me were a nullity. I upheld the first preliminary point. I, therefore, issued an order to strike out the purported notice of opposition and proceeded to deal with the application as unopposed.

23.	Having made the above determination, I found it unnecessary to consider the other points in limine raised by the first applicant.

THE UNOPPOSED APPLICATION

24.	The applicant moved for the application to be granted. He argued that, as articulated in the founding affidavit, the Labour Court had no jurisdiction to set aside the award as it arose from compulsory arbitration. He submitted that the order is a nullity. He also argued that, in terms of s 98(2) and (9) as read with article 34(1) and (2) of the Model Law, it is only the High Court that can review the award in compulsory arbitration. He argued further that a decision made by a court without jurisdiction may be disregarded without the necessity of seeking an order to set it aside. See Manning v Manning 1986 (2) ZLR 1 (SC). A nullity is incurably bad, and one cannot put anything on nothing. He also referred the court to the case of Folly Cornishe (Pvt) Ltd & Anor v Topamwa N. O. & Ors SC 26/14, where GARWE JA (as he then was) said:

“Having established that the Court had no jurisdiction, the fact that the appellants did not apply for the rescission of the default judgment as provided in the Magistrates Court (Civil) Rules is clearly irrelevant. This is because in the words of korsah JA in Muchakata v Nertherburn Mine 1996 (2) ZLR 153(S), 157 B-C:

“If the order was void ab initio it was void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it. As Lord Denning MR so exquisitely put it in MacFoy v United Africa Co Ltd (1961) 3 All ER 1169 at 1172;

“If an act is void then it is in law a nullity. It is not only bad but incurably bad … and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

To the above remarks by korsah JA that it does not matter when and by whom the issue of validity is raised, I would add that it matters not how the issue is raised or what procedure is adopted. If it is clear upon a consideration of all the circumstances, that an act is void, then everything that is predicated on that act would be equally void.”

25.	Even upon the court querying whether he could persist with the argument that the Labour Court lacked jurisdiction to review an arbitral award which is a product of compulsory arbitration of an employment dispute under s 98 of the Labour Act given the provisions of s 92EE of the Act, the first applicant still maintained that it had no jurisdiction and its order setting aside the award is void ab initio. He asserted that its order ought to be disregarded.

THE LAW

26.	The administrative process for the registration of an arbitral award granted by an arbitrator is provided for in terms of s 98(14) of the Labour Act. The said provision reads 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.”

27.	The law is settled on the role of the court when considering an application of this nature and the requirements to be satisfied for registration of an arbitral award. Thus, in Biltrans Services (Pvt) Ltd v Minister of Public Service & Ors 2016 (2) ZLR 306 (CC) at 311 B-G malaba DCJ (as he then was) writing the unanimous judgment of the Constitutional Court aptly said:

“In registering an arbitral award, the High Court and the Magistrates Court are not carrying out a mere clerical function. While the registering Court may not go into the merits of the award, since its duty is to provide an enforcement mechanism and not to usurp the powers of the Labour Court, it must be satisfied before registering an award that all the necessary formalities have been complied with. In Vasco Olympio & 4 Ors v Shomet Industrial Development HH-191-12, CHIWESHE JP at p1 of the cyclostyled judgment, outlining the requirements for registering an arbitral award, stated:

“The purpose of registration is merely to facilitate the enforcement of such an order through the mechanism availed to the High Court or the magistrate court, namely the office of the Deputy Sheriff or the messenger of court, respectively… In an application such as the present one, this court is not required to look at the merits of the award. All that is required of this court is that it must satisfy itself that the award was granted by a competent arbitrator, that the award sounds in money, that the award is still extant and has not been set aside on review or appeal and that the litigants are the parties, the subject of the arbitral award. There must also be furnished, a certificate given under the hand of arbitrator.”

The requirements that must be satisfied before the High Court or the Magistrates Court grants an application for registration of an award are:

The award must have been granted by a competent arbitrator.

The award must sound in money.

The award is still extant and has not been set aside on review or appeal.

The litigants are the parties to the award.

The award must be certified as an award of the arbitrator.

The process of registration of an arbitral award is closely connected to the remedy provided for under s 92E(3) of the Act. It is the decision relating to the arbitral award which would be the subject of appeal to the Labour Court.”

ANALYSIS

28.	As stated in the Biltrans Services case (supra), the court, when considering an application for registration of an arbitral award, must not look into the merits of the award or usurp the powers of the Labour Court. The court has very limited jurisdiction and does not exercise any review or appellate jurisdiction. See Gwanda Rural District Council v Botha SC 174/20. The court must simply be satisfied that the requirements for registration have been met. The purpose of the registration is for enforcement only as provided for in terms of s 98(15) of the Labour Act. It is not to have the labour dispute itself be reconsidered in the court empowered to register the award. The Labour Act provides for the procedure to challenge an arbitral award which resolves a labour dispute, either by way of an appeal or review. The same law also provides for the procedure which a litigant must adopt if aggrieved by any decision of the Labour Court.

29.	I will now turn to consider whether the requirements for registration have been met. It is settled that for the award to be registrable, it must be sound in money. See Biltrans Services (supra) and also Mathews v Craster International (Pvt) Ltd HH 707/15. This means that the arbitral award subject to the registration sought by the applicant can only be the second quantification award issued on 10 November 2017. The first award on 8 February 2013, which simply found that the respondent had committed an unfair labour practice and ordered it to recalculate their retrenchment packages using the correct salary scale, was not registrable at law as it was not sound in money.

30.	There was no issue that the said award dated 10 November 2017 was granted by a competent arbitrator, that it was sound in money, that the litigants were the parties to the award and that the award was certified. It is the requirement that “the award is still extant and has not been set aside on review or appeal” that exercised the court’s mind. There was no dispute that on 20 May 2024, the Labour Court (see pp 27-35) in Case No. R-LCH/REV/4/18 per makamure J granted an application for review filed by the respondent and set aside the arbitral award issued by the Arbitrator Kare on 10 November 2017. This is the same award for which the applicants applied to the court for registration.

31.	The first applicant in para 25 of his founding affidavit also admitted that the said arbitral award was set aside on review by the Labour Court. He even attached the court order thereof as well as the full judgment issued after he requested the written reasons. His argument, however, was that the Labour Court did not have jurisdiction to review an arbitral award arising from compulsory arbitration, and according to him, it is only the High Court that can review such an award in terms of article 34 of the Model Law. He, therefore, reasoned that due to the lack of jurisdiction, the Labour Court order setting aside the award is a nullity and, being void ab initio, it must be disregarded and the award registered.

32.	The law is clear that an order of court has the force of law and remains binding on the parties unless reversed or set aside. This position was restated in Magauzi & Anor v Jekera SC 54/22, where the court said:

“When a court grants an order, all subsequent acts affecting the dispute between the parties rely on the court’s order and not the reason or facts the court based its judgment on. Execution of judgment debts is based on court orders and not the reason for which the court order was granted. Therefore, a party or the parties cannot disregard a court order as they are bound by it. In the case of Chiwenga v Chiwenga SC 2/14, it was stated that: The law is clear that an extant order of this Court must be obeyed or given effect to unless it has been varied or set aside by this Court and not even by consent can parties vary or depart therefrom. See also CFU v Mhuriro & Ors 2000 (2) ZLR 405 (S)”

It is also correct that the Supreme Court in Folly Cornishe (supra) further held that an order made by a court without jurisdiction is a nullity or void ab initio and may be disregarded without the necessity of having it set aside. This position was also set out in Manning v Manning (supra), where at p 3, mcnally JA said:

“The fact remains that the village court was not a court of unlimited jurisdiction. It was not, in this case, a court of competent jurisdiction. Its position was governed by the rule “that judicial decisions will ordinarily stand until set aside by way of appeal or review, but to that rule there are certain exceptions, one of them being that, where a decision is given without jurisdiction, it may be disregarded without the necessity of a formal order setting it aside.” — per fannin J in Mkhize v Swemmer & Ors 1967 (1) SA 186 (D) at 197C-D. Its decision, therefore, cannot be relied upon to justify an action otherwise unlawful. It is unnecessary for the purposes of this decision for me to go further and say that it cannot be valid for any purpose whatever.”

33.	What arises from the authorities above is that it is an exception to the rule that an order stands unless set aside, that if granted by a court without jurisdiction, the order is a nullity and nothing valid can flow from it for any purpose whatsoever. It is not even necessary to have it set aside. However, in casu, the applicant raised a contentious issue that the Labour Court lacked jurisdiction to review an arbitral award issued under compulsory arbitration. He founded his argument on s 98(2) and (9) of the Labour Act as read with article 34 of the Model Law. However, a reading of the same Act shows that the Labour Court has jurisdiction in terms of s 92EE to review proceedings or decisions of an arbitrator or any other inferior tribunals or authorities in labour matters. It provides as follows:

“92EE Grounds of review by Labour Court

(1) 	Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with is Act may be brought on review before the Labour Court shall be—

(a) 	absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b) 	interest in the cause, bias, malice or corruption on the part of the arbitrator or adjudicating authority concerned:

(c) 	gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.

(2) 	Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.” (My emphasis)

34.	The Labour Court’s jurisdiction to review the proceedings or decisions of the arbitrator in labour disputes referred to compulsory arbitration by the labour officer in terms of s 93 of the Act appears to be entrenched by s 92EE. Subsections (2) and (9) of s 98 do not expressly oust the authority granted to the Labour Court under s 92EE to review proceedings or decisions of an arbitrator. Subsection (2), which brings into effect the provisions of the Arbitration Act in compulsory arbitration, subjects the provisions of that Act to the provisions of s 98 of the Labour Act. Subsection (9), on the other hand, provides that an arbitrator has the same powers as those of the Labour Court when determining a labour dispute before him/her.  It was, however, argued by the first applicant that in compulsory arbitration by virtue of s 98(2) and (9) as read with article 34(1) and (2) of the Model Law, only the High Court has jurisdiction to review the resultant award. The question that arises is whether the provisions he quoted support his argument that the Labour Court does not have jurisdiction to review an award in a labour dispute emanating from a compulsory arbitration. Given the context of s 98 and the provisions of s 92EE, I am not persuaded that the Labour Court’s order setting aside the arbitral award was a nullity for lack of jurisdiction such that it ought to be disregarded.

35.	The first applicant’s argument was not one supported by any settled legal position. His argument or contention generates a debate that can be properly advanced before and determined by the appropriate court sitting to review a Labour Court judgment or on an appeal by the Supreme Court. I am not sitting as a review court, nor do I have the jurisdiction to determine an appeal against the decision of the Labour Court. The issue arising from the first applicant’s argument can only, therefore, be comprehensively dealt with outside the application for registration of an award. I am, however, unable to agree to disregard the order and adopt the legal principles set out in the cases of Manning and Folly Cornishe (supra).

36.	I am satisfied that the Labour Court set aside the arbitration award dated 10 November 2017 in terms of s 92EE of the Act as read with r 20 of the Labour Court Rules. The applicants could not seek to register an award that is no longer in force. That the order issued on 20 May 2024, before MAKAMURE J set aside the arbitral award in question, was common cause. Applying the principles above, the award cannot be registered as it was set aside on review. The award is, therefore, not extant for purposes of registration before this court. The application, accordingly, cannot succeed.

DISPOSITION

37.	The first applicant failed to satisfy all the requirements for the registration of the award in question. The award sound in money and issued on 10 November 2017 was set aside by the Labour Court. It is only an award that is still extant or has not been set aside on appeal or review that is registrable. In casu, the Labour Court order setting it aside is still extant. It has not been set aside by the appropriate court on review or appeal. I do not accept that the order is void ab initio and that it should be disregarded. The argument relating to the said court’s competence or jurisdiction to issue the order it handed down creates a question which can properly and finally be determined by the appropriate court exercising review or appellate jurisdiction. My jurisdiction in the determination of this matter is very limited. See Biltrans Services (supra). The application can only be refused as there is nothing for the court to register in terms of s 98(14) of the Labour Act.

38.	Since the respondent’s papers had been struck out and the matter was unopposed, the appropriate order for costs in the circumstances was that there be no order as to costs.

It was for the above reasons that the court dismissed the application with no order as to costs.

DEMBURE J:   ………………………………………………

Dube, Manikai & Hwacha, respondent’s legal practitioners