Denford Tapiwa Zhungu and 14 Others v City of Harare

On 25 September 2013, an arbitral award was granted in favour of the applicants by Arbitrator Kenneth Machekano Nhongo under case number 774/06/13 in terms of s 98(14) of the Labour Act [Chapter 28:01]. The award ordered the respondent (City of Harare) to comply with an agreement in certificates of settlement issued by a Labour Officer on 9 April 2013. Initially, the award was not sounding in money and therefore not registrable. The applicants subsequently made an application for quantification of the award to make it capable of registration. On 3 March 2015, a quantified award was handed down in favour of the applicants. The respondent appealed against the quantified award to the Labour Court. While the appeal was pending, the applicants filed an application for registration of the quantified award on 16 March 2015. On 2 October 2015, the Labour Court in case LC/H/686/2015 delivered judgment dismissing and setting aside the arbitral award that had been granted on 25 September 2013 and later quantified on 3 March 2015. This dismissal occurred before the current application for registration had been heard.

• Whether an arbitral award that had been set aside by the Labour Court could still be registered by the High Court
• Whether the award set aside by the Labour Court was the same award the applicants sought to register
• Whether the application for registration had been overtaken by events following the dismissal of the arbitral award by the Labour Court

The application to register the arbitral award was dismissed with costs.

An arbitral award that has been set aside by the Labour Court on appeal cannot be registered by the High Court, even if the application for registration was filed before the award was set aside. Where an arbitral award has been dismissed and set aside by a competent court, there is no award left to be registered, and any pending application for registration of that award must fail as it has been overtaken by events. A lower court or tribunal cannot attack or give effect to a judgment or order that has been set aside by a higher court, as doing so would be against public policy and would contravene a fundamental principle of Zimbabwean law.

The court made observations about the misleading nature of the applicants' submissions when they claimed that the award set aside was different from the one they sought to register, noting that their own affidavits consistently referred to the same award dated 25 September 2013. The court also noted that a typographical error in the Labour Court judgment (referring to 2011 instead of 2013) did not create any ambiguity, as there was no other award issued in 2011 or on any other day involving the same parties. The court expressed that "it boggles the mind" why the applicants would claim a different award existed when they kept making reference to the award dated 25 September 2013.

This case establishes important principles regarding the registration of arbitral awards in Zimbabwe labour law. It clarifies that an arbitral award that has been set aside by a higher court (the Labour Court) cannot subsequently be registered by the High Court, even if the application for registration was filed before the award was set aside. The case demonstrates the principle that lower courts cannot attack or give effect to decisions that have been set aside by higher courts. It also illustrates the doctrine that applications can be overtaken by events, and courts will not register awards that no longer have legal validity. The case reinforces the hierarchical nature of the Zimbabwean court system and the binding effect of appellate decisions on pending applications.