Richard Matthews v Craster International (Private) Limited

### Preamble
Judgment No. SC 151/2020
1
Civil Appeal No. SC 562/18
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REPORTABLE: 		(143)

RICHARD     MATTHEWS

v

CRASTER     INTERNATIONAL     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, GOWORA JA & GUVAVA JA

HARARE: FEBRUARY 18, 2019 & NOVEMBER 10, 2020

T. Chagudumba, for the appellant

S. M. Hashiti, for the respondent

GOWORA JA:  The appellant was formerly employed by the respondent. Following the termination of the relationship a dispute arose over certain amounts that he claimed as being due and owing to him. He obtained an arbitral award on 28 June 2012. On 1 October 2012 the appellant applied through the chamber book for an order for the registration of the arbitral award as an order of the High Court. The respondent opposed the application on the grounds that it was not capable of registration because a component of the award is not sounding in money and on 19 August 2015 the High Court issued an order dismissing the application.

This appeal is against the dismissal of that application.

THE BACKGROUND FACTS

The facts as captured in the award are as follows:

“The appellant was the Chief Executive Officer of the respondent. The shareholder of the company, the respondent herein was the Matthews Family Trust, (“the Trust”). The appellant was one of its beneficiaries. In August 2008 the Trust resolved to sell the shares of the respondent, which was the holding company for a group of companies known as the Craster Group to Messrs Kotecha and Desai. The sale of the shares resulted in a change of ownership in the respondent. The respondent however, continued to operate the group of companies as before with the appellant occupying the position of Chief Executive Officer. The appellant agreed to step down as Chief Executive Officer. The parties could not agree on the terminal package that should have been paid to the appellant. He filed a complaint of unfair dismissal and the matter went before a labour arbitrator who ruled that the parties should submit their dispute to arbitration. On appeal the matter went before the Labour Court and the parties mutually agreed to refer the matter to arbitration."

The terms of reference upon which the matter ended up before the learned arbitrator are not set out. It is evident however that he conducted a hearing after which the parties submitted written arguments to him. His findings are set out as follows.

“The letter dated 7 April 2009 was addressed to the Claimant and purported to be from Mr Kotecha in his capacity as Chairman of the respondent. It is not signed but as it was not challenged or disputed by the Claimant I accept it as being genuine.

However, since the parties had agreed that his position as Chief Executive Officer would be reviewed at the end of August on the grounds that it was not capable of registration because a component of the award is not sounding in money. Messrs Kotecha and Desai could have insisted that he step down on the grounds that his position had been reviewed and it was established that the companies were in a loss making position and had been so for 7 months. ………

Therefore I consider that because the Claimant, at the time his contract of employment was terminated on 4 September 2009, was not entitled to the benefits provided for in the initial contract of employment, they cannot be taken into account in calculating his severance package. Messrs Kotecha and Desai offered him a package of 3 month’s salary. In view of the Claimant’s length of service with the Craster Group and his expectation that he would continue working as Chief Executive Officer for 3 years and thereafter continue working as a consultant for the respondent, I would consider that to be inadequate.”

On 28 June 2012, the learned arbitrator issued an award in the following terms:

“My award therefore is that the respondent pays the claimant;

USD 7 000.00 being his salary for August 2007.

USD 42 000.00 as a severance package.

Cash in lieu of the leave days he had acquired and not taken as at 4 September 2009 in line with the respondent’s leave policies.”

PROCEEDINGS BEFORE THE COURT A QUO

The appellant filed a chamber application for the registration of the award by Justice Smith in terms of s 98 (14) of the Labour Act [Chapter 28:01]. The manner in which the appellant approached the court was a hotly contested issue. The appellant sought to depart from the reference to the Labour Act. The respondent contended that he should be held to his election. The court dismissed the objection on the premise that reference by the appellant to the Labour Act did not result in prejudice to the respondent.

The court a quo found that para (c) of the arbitral award was in-complete. The learned judge reasoned that if an award did not sound in money then it was incapable of being registered as an order of court. In his view the parties had approached the arbitrator to enquire and determine the nature and quantum of the terminal package due to the appellant. He therefore found it surprising that they came out of the arbitration process with only two thirds of the award having been quantified. He concluded that an order that an employer pay his ex-employee cash in lieu of leave due to the said employee for leave not taken was incomplete. His view was that such an order went against settled principle and stated that the approach taken had been rejected by the court in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329, and the authorities which followed. As regards para (c) of the award the learned judge reasoned thus:

“………………………..In casu, para (c) of the arbitral award did not specify the period due to the applicant. It did not specify the number of those leave days. Naturally, it did not specify the quantum. It did not state what the respondent’s leave policies were. Before me none of the parties said they were agreed on any of those items. Thus, the field for potential disagreement on them in the future was vast. Mr Chagonda argued that this did not make the award incapable of registration. He conceded that it was not possible to sue out a writ of execution to enforce that part of the award if it remained in that form. However, he argued that the parties could always go back to the arbitrator for clarification if a dispute arose. But that is precisely the problem. The award was simply incomplete. Mr Chagonda’s approach would entail the registration application being heard twice. In my view, there was no conceivable basis for overburdening this court like that. Therefore I hold that para (c) of the arbitral award by Retired Justice Smith on 28 June was incapable of registration as an order of this Court because it was incomplete, more particularly in that it did not sound in money.”

The court a quo was also tasked with the question of whether or not the award was divisible, in other words whether or not the court could register as a judgment of the High Court, the portion of the award that set out specific sums as being due to the appellant. The court was also not convinced that the award was severable and said:

“In Confederation of Zimbabwe Industries v Mbatha HH 125/15, MATHONSI J said that the article allows the severance of an offending part of the award where appropriate.

However, other than article 36(1)(a)(iii) aforesaid and article 34(2)(a)(iii), which says the same thing on the same subject matter, but in the context of an application to set aside an arbitral award I have found no other provision dealing with the severability of an arbitral award for the purpose of registration with this court. The situation dealt with by article 36 and article 34 and the judgment in Mbatha is different from the one in the present matter. In the present matter, the award by Retired Justice Smith did not deal with a dispute contemplated by, or falling within the terms of the submission to arbitration. It was simply incomplete in part. So, did this render the whole award incapable of registration?

The question is not a moot point. The award sought to be registered was not made by this court. It was made in another forum. The governing legislation does not provide for the divisibility of awards made elsewhere when they are submitted for registration with this Court.”

The court concluded that if only the first two paragraphs were registered the award becomes an order of the High Court. The court opined that it had no power to split the award as that would be tantamount to transforming the award itself. The court concluded by suggesting that once the appellant had seen the offending paragraph, he should have approached the arbitrator under article 33 for correction or rectification of the award. The appellant chose not to proceed in the manner suggested and has not explained why. The application for registration was therefore dismissed.

THE APPEAL

Aggrieved by the dismissal of that application, the appellant has noted this appeal on two grounds of appeal. Those grounds are couched in the following terms:

“1. The court a quo erred at law in holding that if an award does not sound in money then it would not be enforceable since it would be impossible to sue out a writ. At the same time, the learned judge in the court a quo erred at law in holding that enforcement of an award is only through the issuing of a writ.

2. Alternatively, the court a quo erred at law in making a finding that the award could not be severed so that the part sounding in money could be registered.”

Mr Chagudumba submitted that the court a quo should have determined the matter on the basis of the Arbitration Act [Chapter 7:15], (“the Model Law”). He argued that registration of an award is to enable the issuance of a writ. He suggested that the court a quo committed an error by finding that enforcement of an award can only be effected through the issuance of a writ.

Mr Hashiti supported the judgment of the court a quo. He submitted that an award which does not sound in money cannot be registered. He argued further that the paragraph dealing with the cash in lieu of leave did not sound in money making the whole award incapable of registration.

I find it somewhat strange and perplexing that neither counsel before us made reference to specific articles of the Model Law. This is the basis upon which the High Court assumed jurisdiction in dealing with the application. The court a quo did advert to sections of the Model Law which I will consider later in the judgment.

ISSUES FOR DETERMINATION

Only two issues arise for resolution, firstly whether the award in its current form is capable of registration. In view of the manner in which the matter found its way before the High Court, viz; through a chamber application supposedly under s 98 (14) of the Labour Act, it seems to me that this issue can only be determined by considering whether the applicable law in this case is the Labour Act aforementioned or the Model Law, under which the application appears to have been determined by the learned judge in the High Court. The second issue is whether or not the award is severable permitting part of it to be registered.

I turn my attention to the legislative instruments providing for the recognition of arbitral awards. I do so in turn, starting with the Labour Act.

ARBITRAL AWARDS UNDER THE LABOUR ACT

Within this jurisdiction, the guiding authority on the registration of an arbitral award under the Labour Act is Mandiringa v NSSA & Ors 2005 (2) ZLR 329 (H). It is pertinent to set out in full the ratio decidendi of the judgment in that authority. MAKARAU J (as she then was) said:

“An award that orders the reinstatement of the applicant without awarding a specified amount in damages in lieu of the reinstatement is incomplete and consequently, incompetent and cannot be registered in terms of s 98 (14) of the Act as an order of this Court.

It is clear from a reading of each of the awards that were made in the six matters that the applicants were to be reinstated without loss of pay and benefits from certain given dates in each case to date of reinstatement. The awards did not compute the loss that each employer had to make good even if he chose to reinstate the respective applicant. It is conceded that while such computations are relatively easy by comparing what similarly placed employees received as emoluments over the same period, the issue remains that the quantum thereof is not part of the award made and was not determined as part of the arbitration proceedings in the presence of both parties. It was not agreed upon in any of the matters.” (the emphasis is mine)

It is common cause that the court a quo relied on the highlighted portion in dismissing the application on the premise that the award did not sound in money. In considering the reliance by the court a quo on Mandiringa it becomes pertinent that I set out in full the “awards”, for want of a better term, which faced her ladyship in the matters she dealt with. She said:

“For the purposes of this judgement, it appears to me desirable that I set out in full the wording of each of the six awards made.

In the first matter, the arbitral award was worded as follows:

“National Social Security is ordered to reinstate Mandiringa without loss of salary and benefits from the time of dismissal”

In the second matter, it reads:

“Therefore in line with the above, I do hereby order Innscor Africa to reinstate Ganizio Jamu from the date of suspension without loss of salary or benefits or alternatively pay him damages in lieu of reinstatement quantum to be agreed between the parties.”

In the third matter, the award was worded as follows:

“Having considered the submissions made, I find that the company’s dismissal of Mr Chigaba was procedurally and substantively unfair. I order that he be reinstated to his former position, without any loss of pay and other benefits. The reinstatement is with effect from the date of dismissal.”

And in the fourth:

“Whilst the arbitrator does not condone theft in toto, it is very clear that the respondent erred at Labour law by not exhausting all the proper termination procedures as laid down in the Labour Relations Termination Regulations SI 130 of 2003. As such it is hereby determined that the Appellant, Mr Garikai Nelson, be reinstated to his previous position without any loss of pay or other benefits due to him from the date of the unlawful suspension. In the event that that reinstatement is no longer feasible the appellant be paid an agreed amount as damages in lieu of reinstatement in addition to his terminal benefits as laid down in s 13 of the Labour Act [Chapter 28.01].

In the fifth and sixth matters respectively, the awards read:

“In light of the above I determine that V Sanyika be reinstated without loss of pay and benefits or alternatively be paid damages quantum to be agreed upon between the parties if the employment relationship cannot be salvaged”;

and

“Saybrook is ordered to reinstate Mr C Mesikano without loss of salary and benefits with effect from date of dismissal”.

Section 98 (14) of the Act provides that:

“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.”

It seems to me that from a perusal of that provision, in considering the application, a Magistrates Court would have to be satisfied that the matter before it was within its jurisdiction. It can only do so by taking into account the monetary level of the award. It stands to reason therefore that in order to permit the Magistrates Court to exercise its jurisdiction in his favour, an applicant seeking registration of an arbitral award under s 98 (14) of the Labour Act must present to the court an award sounding in money. This is because, as MAKARAU J found, the Magistrates Court as a creature of statute can only exercise that jurisdiction which its enabling Act has bestowed on it. It requires that an amount be ascertainable for purposes of imbuing the court that registers the award with jurisdiction. Although the High Court does not have limitations in terms of monetary jurisdiction, it stands to reason that in construing the provision, it must be read to mean that an award must sound in money in order for the court to register it an order of court under s 98 (14).

The principle set out above does not appear to have found favour in subsequent decisions of the High Court. In Mvududu v Agricultural & Rural Development Authority 2011 (2) ZLR 440 (H), at pp451-2 the court said:

“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 party 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).”

See also Ndlovu v Higher Learning Centre HB 86/10 (unreported).

The last two authorities appear to be a departure from Mandiringa’s case. In this case, the High Court decided to follow Mandiringa. However, the question that begs an answer is whether or not the principle set out in that authority is also applicable when an arbitral award has been issued under the Model Law as the one appellant seeks to register was.

ARBITRAL AWARDS UNDER THE MODEL LAW

The learned judge in the High Court categorically stated that the application before him, despite the heading on the face of the chamber application, was premised on the provisions of article 35. What this means is that despite the reference to the Labour Act on the face of the chamber application, the application was not founded on the provisions of theLabour Act but rather sought to be determined under the Model Law. I have no doubt that he was correct in that regard. Section 98 (14) of the Labour Act specifically provides for the registration of arbitral awards arising out of compulsory arbitration proceedings under the Act. The narration facts by the learned arbitrator suggests that the parties "agreed to submit" the matter for arbitration. From this context it is my view that the arbitration was voluntary and therefore the award arising therefrom does not fall for registration under s 98 (14).

I start this enquiry by examining article 34 which deals with the setting aside of an arbitral award. Article 34 provides in relevant part:

“Application for setting aside as exclusive recourse against arbitral award.

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paras (2) and (3) of this article.

(2) An arbitral award may be set aside by the High Court only if—

(a) the party making the application furnishes proof that—

(i)     a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication on that question, under the law of Zimbabwe; or

(ii)     the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii)       the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or

[Subparagraph amended by Act 14/2002]

(iv)    the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Model Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Model Law;

or

(b) the High Court finds, that—

(i)   the subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or

(ii)      the award is in conflict with the public policy of Zimbabwe.”

Although the above provision deals with the grounds upon which the High Court can set aside an arbitral award, regard must be had to the article as it narrows the circumstances under which an arbitral award may be set aside by the court. It must be considered with article 36 which deals specifically with the recognition of arbitral awards. The article reads in relevant part:

ARTICLE 36

Grounds for refusing recognition or enforcement

Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may

be refused only—

(a)     at the request of the party against whom it is invoked, if that party furnishes to the court where recognition or enforcement is sought proof that—

(i)     a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(ii)      the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii)      the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or

(iv)        the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

(v)         the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or

(b) if the court finds that—

(i)     the subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or

(ii)         the recognition or enforcement of the award would be contrary to the public policy of Zimbabwe.

A perusal of the above provision makes it obvious that it is the exact same provision as article 34 above. It sets out the grounds upon which an arbitral award may be refused recognition. It is in pari pasu with article 34. Neither article speaks to a requirement that an award should sound in money in order for the High Court, which is the court imbued with exclusive jurisdiction under the Model Law to consider applications for the recognition or setting aside of arbitral awards under the Model Law.

I turn now to discuss the ratio decidendi by the court a quo on the application and whether the court a quo applied the law correctly.

WHETHER THE COURT A QUO WAS CORRECT IN ITS APPLICATION OF THE LAW TO THE MATTER BEFORE IT.

The question that begs an answer is whether an applicant who seeks registration of an arbitral award under article 36 can be refused recognition of that award on the premise that it does not sound in money. In other words, if it does not sound in money should the High Court on the basis of the principle set out in Mandiringa refuse to recognise the said award?

The court a quo was of the opinion that the award was incomplete. It reached this conclusion after considering the purpose of s 98 (14) of the Labour Act and article 35. The court was of the view that:

“ section 98 (14) of the Labour Act and art 35 of the Arbitration Act are in pari materia. On the face of it, both provisions facilitate the registration of arbitral awards with the conventional courts for the purpose of enforcement. In s 98 (14) of the Labour Act, any party to whom an arbitral award relates may submit for registration, to either the court of the magistrate, or the High Court, the copy of the arbitral award given to him in terms of sub-section (13). The choice of court depends on the quantum of the award. Any award in excess of the monetary jurisdictional limit of the magistrate’s court is to be submitted to this court. In art 35 of the Arbitration Act, an arbitral award, irrespective of the country in which it was made, is binding upon its registration with this Court.

That the purpose for registering an arbitral award in terms of s 98 (14) is for enforcement is made clear by the next sub-section, namely sub (15). It says that where an arbitral award has been registered, it shall have the effect, “… for purposes of enforcement …” of a civil judgment of the appropriate court.

Similarly, with art 35 of the Arbitration Act, that the purpose for registration is enforcement is self-evident from both the intrinsic provisions of the article itself as well as the heading to it. Sub-article 35 (1) says that the arbitral award, upon application to the High Court, “… shall be enforced …”, subject to the other provisions. Sub-article 35 (2) also provides that the party applying for the “… enforcement …” of the award has to submit the original or certified copy. The heading of the article as a whole is “Recognition and enforcement.”

In casu, the applicant sought to wriggle out of the provisions of s 98 (14) of the Labour Act, evidently to escape the conclusion in Mandiringa & Ors and Herbert Sauramba & Ors.

In my view, for the respondent to have insisted on binding the applicant to s 98 (14) of the Labour Act, just because the heading to his application said so, was to insist on form prevailing over substance. It was common cause that the reference of the dispute to arbitration had not been made in terms of the Labour Act. The arbitrator had not been appointed in terms of the Labour Act. The reference to arbitration and the appointment of the arbitrator had both been made in terms of the Arbitration Act.”

Having found that the reference to arbitration was under the Model Law, the court should have had recourse to that Law. It did not and as a result it refused recognition on grounds other than those provided for in the Model Law.

As I have already stated neither counsel made reference to the power of the High Court in the registration of an arbitral award. However, an examination of article 36 would seem to suggest that the court’s power to refuse recognition can only be exercised if any one of the scenarios contemplated in article 36 is proven. The court in this case did not apply article 36. Instead it sought reliance on decided authority within this jurisdiction on the recognition of arbitral awards specifically decided under s 98(14) of the Labour Act.

The reason by the court for refusing registration was that a writ could not be sued out for the whole award, specifically the portion relating to cash in lieu of leave. Our law recognises two types of orders, namely orders ad pecunium solvendum and orders ad factum praestandum. The first relates to judgments for the payment of monies, the second to judgments for the doing or refraining from the doing of certain things or actions.

Section 89 (2) of the Labour Act provides:

“(c) in the case of an application made in terms of subparagraph (ii) of subsection (7) of section ninety-three, make an order for any of the following or any other appropriate order—

(i)      back pay from the time when the dispute or unfair labour practice arose;

(ii)     in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee, the payment by the employer concerned to the employee or someone acting on his behalf of such amount, whether as a lump sum or by way of instalments, as will, in the opinion of the Labour Court, adequately compensate the employee for any loss or prejudice suffered as a result of the unfair labour practice;

(iii)        reinstatement or employment in a job:

Provided that—

any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative to his reinstatement or employment;”

When the above provision is read with s 98 (14) it becomes clear why an award should sound in money. This is because under s 98 (9) of the Labour Act, an arbitrator is empowered to exercise the same powers as the Labour Court. It stands to reason therefore, that an arbitrator is required, where he finds for the employee, to render an award sounding in money even where reinstatement is the main relief granted. This is the reason why in Mandiringa the court concluded that any award in favour of the employee must have a monetary component. The law requires it.

The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under article 36. Sight must not be lost of the import of the Model Law and its application. Under article 35 the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

ARTICLE 35

Recognition and enforcement

(1)    An arbitral award, irrespective of the country in which it was made, shall be recognised as binding and, upon application in writing to the High Court, shall be enforced subject to the provisions of this article and of Article 36.

(2)   The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.

Suffice it to state that the matter proceeded to the High Court for the recognition of an award under article 35 of the Model Law. Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for. The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it. In any event awards under the Model Law arise under a myriad of agreements and may take the form of orders ad percunium solvendum or ad factum praestandum. For these reasons the dismissal of the application premised on a reading of s 98 (14) is in my view a misdirection on the part of the court a quo.

However, the purpose of seeking registration or recognition of an arbitral award is to enable its enforcement.  The critical issue for determination by the court a quo would require an examination as to whether or not the award as framed was amenable to execution, in other words were a writ of execution to be issued would the parties involved in the dispute be able to interpret the writ and give effect to it without need for further litigation. I do not believe that this is a question for determination by this court at this stage because of the ratio decidendi in the court below. It is however within the ambit of this court’s jurisdiction to set out the law on the efficacy of writs of execution.

Although the law governing arbitration and the awards emanating from such process has now been codified, arbitration has its genesis in the common law.  The position is settled that the award of an arbitrator cannot be made an order of court until the award is final.  Article 36 (v) states that an award can be refused recognition if it has not yet become binding on the parties. This has been interpreted to mean that in order to be binding the award must be final. The question as to when an award becomes final and binding was discussed in Bristow Municipality v 1967 Beunderman (Pty) Ltd SA (3) 154 (CPD). On appeal before the court was an order issued recognizing an arbitral award which was framed as follows:

“The respondent is ordered to pay the applicant;

the sum of R13 268,50

the costs of the arbitration proceedings (including the qualifying costs incurred by leading the evidence of Mr P Walker,  the consulting engineer) but such costs are not to include the costs incurred by the third day of the arbitration proceedings, viz. 26th  September 1962;

interest a tempore morae;

the cost of these proceedings.”

BEYERS JP, writing for the court, said:

“But there is, in my view, no room in law for a hybrid order such as the one under appeal., which is partially a finding made by an arbitrator and partially a finding made by a court of law. In my view, therefore, the learned judge a quo erred in his view that he could complement those parts of the arbitration award which had not yet reached finality. In my view the arbitration award is not a final award and cannot, for that reason, be made an order of court.”

The award which is the subject matter of this appeal contains parts that sound in money. The last paragraph does not sound in money. The court a quo did not consider the court’s power to refuse recognition strictly in terms of the provisions of article 36. The court decided the matter on the basis of the dicta in Mandiringa. To that extent the court a quo misdirected itself as Mandiringa was not decided on the construction of article 36. The court must therefore have regard to the correct law in determining whether or not the arbitral award as framed by the arbitrator lends itself for recognition to enable its enforcement.

DISPOSITION

I must with respect seek to distinguish the recognition of awards under the Labour Act with those granted under the Model Law. The former are provided for under s 98 (14), and in view of the purpose for which they were sought, specific mention was made of the jurisdictional limits of the Magistrates Court or the High Court. I am also mindful of the fact that, at law, the Labour Court has the exclusive jurisdiction as a court of first instance over labour matters within this jurisdiction. The converse does not apply to the matters in which arbitration proceeds under the Model Law. The High Court has exclusive jurisdiction to recognize or refuse recognition. The ambit of the exercise of discretion by the court is specifically limited to those instances set out in article 36. It is my further view that in considering an application brought under the Model Law, the court should have regard to the said provisions and adhere to them. In this instance, the High Court failed to have recourse to the Model Law under which the application fell and to that extent there was a misdirection on the part of the court.

I conclude therefore that the principle in Mandiringa that an award must sound in money for purposes of registration under s 98 (14) of the Labour Act is not applicable to awards made under the aegis of the Model Law. Those awards should be dealt with under articles 34 and 36 of the Model Law. The provisions of s 98 (14) and (13) of the Labour Act are meant specifically for awards arising out of proceedings conducted under the said Act. To the extent that the High Court imported the provisions of that Act into the proceedings before it, it was guilty of a misdirection.

That said however, it seems that the court considered the provisions of article 36 as related the severability of the award. In my view this exercise is no longer necessary. The court a quo applied the wrong law to the application before it.

The appeal has merit and should succeed.

In the result the following order will issue:

IT IS ORDERED AS FOLLOWS:

1           The appeal is allowed with costs.

2.          The judgment of the court a quo is set aside.

3.          The matter is remitted to the court a quo for the determination of

the application in accordance with the provisions of Articles  34,  35 and 36 of the Model Law, Schedule to the Arbitration Act [Chapter 7:15].

GWAUNZA DCJ:          	I agree

GUVAVA JA:            		I agree

Atherstone & Cook appellant’s legal practitioners

Dube, Manikai & Hwacha respondent’s legal practitioners