DELTA BEVERAGES (PVT) LTD v CHIMURIWO & ORS 2014 (2) ZLR 616 (H)

Flynote

Court — High Court — jurisdiction — review — decision of magistrates court to order execution on basis of arbitral award without such award being registered — such order incompetent — applicant should approach magistrates court for stay of execution — High Court not having jurisdiction

Headnote

The first respondent, a former employee of the applicant, had an arbitral award in his favour. The applicant paid the amount awarded, having deducted income tax. The amount of the award being within the monetary jurisdiction of the magistrates court, the first respondent instructed the messenger of clerk to execute against the applicant's property for the balance. The applicant brought review proceedings in the High Court, the grounds of review being that the first respondent had instructed the messenger to attach, remove and sell the applicant's movable property acting under an irregularly issued warrant of execution, the warrant having been issued without registration of the arbitral award; and that the judgment debt had been paid in full and that there was no need to proceed with execution.

Held, that what the applicant sought to have reviewed was the procedure adopted by the magistrates court, a court whose procedures are governed by the Magistrates Court Act [Chapter 7:10] and rules. The registration of arbitral awards is provided for by s 98(14) and (15) of the G Labour Act [Chapter 28:01]. The effect of registration of an arbitral award is to turn the award into a civil judgment of the appropriate court. Without being registered, an arbitral award is not a court order for purposes of enforcement. Under s 20 of the Magistrates Court Act, in order for a writ of execution to be issued, there must be a judgment of the magistrates court, which is founded in money, on which execution will be based. The procedure adopted by the magistrates court in this case, of merely issuing a writ of execution on the basis of an arbitral award, was akin to putting the cart before the horse. The applicant's first port of call in these circumstances should have been the magistrates court itself, as the issue of a warrant of execution was not based on its own judgment as provided by its governing Act or its rules. The applicant ought to have applied to the magistrates court for stay of execution, simply because that court had issued the warrant of execution. Any review of the arbitral award should have been brought before the Labour Court. The matter should not have been brought before the High Court, which did not have jurisdiction.

Editor's note: this judgment should be read in conjunction with that in Nyahora v CFI Hldgs (Pvt) Ltd S-81-14 (see ante at p 607 of this volume). While any review of the arbitral award itself would certainly be within the exclusive jurisdiction of the Labour Court, a review brought because the wrong procedure was adopted in an inferior court — albeit that the original case was a labour matter — may not itself be a "labour matter".