MVUDUDU v AGRICULTURAL & RURAL DEVELOPMENT AUTHORITY 2011 (2) ZLR 449 (H)

Flynote

Appeal — notice of — effect — suspension of decision appealed against — applicability to arbitral award under Labour Act [Chapter 28:01] — award C suspended if appeal noted in terms of Labour Act — execution pending D appeal — leave to execute pending appeal required from High Court

Arbitration — award — award under Labour Act [Chapter 28:01] — registration of — what applicant for registration must show — applicant's entitlement to registration if conditions met, even if appeal noted against award

Employment — Labour Court — appeal to — appeal against arbitral award — effect of noting appeal — award suspended

Headnote

In order to qualify for registration of an arbitral award in terms of s 98(14) of the Labour Act [Chapter 28:01], all that an applicant has to do is tosatisfy 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 s 98(13) of the Act.

If those conditions are met, the applicant is entitled, as of right, to register the arbitral award. While it may be correct that at common law it is incompetent to seek the enforcement of a judgment that is being appealed against, for the purposes of such an arbitral award, this legal principle has no relevance to the registration thereof under the Labour Act.

The applicant obtained an arbitral award in his favour against the respondent, his former employer. The arbitrator had awarded him certain sums of money. The applicant applied for the award to be registered as an order of the High Court, in terms of s 98(14) of the Labour Act [Chapter 28:01]. The applicant also noted an appeal to the Labour Court against the award on the grounds of its inadequacy, and the respondent cross-appealed. The issue arose as to whether the applicant could register the award in spite of noting an appeal against it and whether a registered awardis enforceable notwithstanding a pending appeal to the Labour Court.

Held, that the Labour Act does not provide for the suspension of the registration of an arbitral award and there is no other law which provides for such a suspension pending an appeal of the award. That being the case, the applicant could seek the registration of the award in spite of the pending appeal. Held, further, that upon registration with the High Court, an arbitral award is converted into a civil judgment of the High Court for the purposes of enforcement only.

Held, further, that the noting of the appeal to the Labour Court in terms of s 98(10) of the Labour Act automatically suspended the arbitral award appealed against. But where, as in casu, a litigant had only appealed against a portion of the judgment, the suspension only applied to that portion which had been appealed against. The applicant's appeal against the non-award of more damages than those awarded by the arbitrator had, therefore, no bearing on the amount granted by him.

Held, further, however, that the amount granted by the arbitrator was still subject to the universal common law rule that an appeal suspends the decision appealed against and it was for this reason that the applicant would have to seek the leave of the court in terms of the High Court Rules 1971 (RGN 1047 of 1971) for leave to execute pending the appeal.