SAMUDZIMU v DAIRIBORD HOLDINGS LTD 2010 (2) ZLR 357 (H)

Flynote

Arbitration - award - challenge to - award granted following referral in terms of Labour Act - Labour Court having exclusive jurisdiction - registration of such award - award not suspended nor set aside on appeal or review - High Court's power to register award

Court - jurisdiction - High Court - arbitral award - award granted following referral in terms of Labour Act - challenge to such award - Labour Court having exclusive jurisdiction

Employment - Labour Court - arbitral award - award granted following referral in terms of Labour Act - challenge to such award - Labour Court having exclusive jurisdiction

Headnote

The applicant sought to register with the High court an arbitral award made in his favour against the respondent. The respondent opposed the application on the basis that the award offended against public policy in terms of arts 34 and 36 of the UNCITRAL Model Law set out in the Schedule F to the Arbitration Act [Chapter 7:15]. The respondent had also lodged an appeal with the Labour Court against the award; that appeal was still pending. The question arose whether the High Court had jurisdiction, in view of the wording of s 89 of the Labour Act [Chapter 28:01].

Held, that the extent to which the provisions of the Arbitration Act are applicable in labour matters is governed by s 98(2) of the Labour Act, which provides that "subject to this section, the Arbitration Act shall apply to a dispute referred to compulsory arbitration". Section 98 provides, inter alia, for the referral of matters to compulsory arbitration, the appointment of arbitrators, appeals against decisions of arbitrators, reviews and other remedies. These provisions are detailed and comprehensive. It could not have been the intention of the legislature that parties aggrieved by the 2010 (2) ZLR p358 decision of an arbitrator in a labour dispute could seek a remedy in terms of the UNCITRAL Model Law set out in art 34 or 36 of the Schedule to the Arbitration Act. Those articles are not applicable where the award sought to be challenged relates to a labour dispute. The mechanisms for challenging such awards are provided for in the Labour Act and must be accessed through the Labour Court. No other court has jurisdiction to entertain such matters. However, with regard to the registration of an award, for as long as the arbitral award has not been suspended or set aside on review or appeal in terms of the Labour Act, there was no basis upon which the High Court could decline to register the award.