John Nyakama v Lobels Bread (Pvt) Ltd

The applicant was employed by the respondent as a transport manager. Following his suspension, a Labour Relations Officer ruled in his favour and ordered his reinstatement. The respondent appealed, and whilst that appeal was pending, the applicant was again suspended on a different allegation. Another Labour Relations Officer ordered reinstatement or damages. When reinstatement became impossible in May 2003, the matter was referred for arbitration. An arbitral award was made, but the respondent appealed. The matter went through several procedural stages, including registration of the award in the High Court, setting aside of a writ, and referral back to arbitration. A new arbitral award was made on 29 January 2008 by an arbitrator appointed by the Commercial Arbitration Centre pursuant to a High Court order. The applicant noted an appeal to the Labour Court, which declined jurisdiction. The applicant then sought to set aside the arbitral award, but was out of time under the Arbitration Act which requires such applications within three months. He applied for condonation of the late filing, but MAKARAU JP dismissed the application on 11 February 2009, holding the Court had no power to extend the three-month period. The applicant filed a notice of appeal on 9 March 2009, which was out of time. When the matter came before the Supreme Court on 20 July 2009, it was struck off for lack of timeous noting. The applicant then filed an application for extension of time to appeal, which had several defects and was withdrawn. A fresh application for extension of time was filed in February 2010.

• Whether the applicant had prospects of success on appeal against the judgment of MAKARAU JP
• Whether the Court has power to extend the three-month period prescribed in Article 34(3) of the Model Law for applications to set aside arbitral awards
• Whether condonation is available for late filing of applications to set aside arbitral awards under the Arbitration Act

The application for extension of time within which to appeal was dismissed with no order as to costs.

Article 34(3) of the Model Law incorporated into the Arbitration Act prescribes a peremptory three-month time limit for applications to set aside arbitral awards, measured from the date of receipt of the award. The Court has no power to extend this period or grant condonation for late filing of such applications. Once the three-month period has expired, the right to bring an arbitral award before the Court for setting aside is lost forever. For purposes of an application for extension of time to appeal, an applicant must demonstrate prospects of success on the appeal, and where the court a quo correctly applied the law, no such prospects exist.

GARWE JA observed that it was unfortunate that a way was not found to bring the issues back before the machinery set up in terms of the Labour Act rather than proceeding under the Arbitration Act. The Court remarked that the decision to refer the matter to arbitration under the Arbitration Act and the Labour Court's decision declining jurisdiction may have been incorrect, and that had these decisions been appealed against, the outcome may well have been different. However, since these decisions were not appealed, their correctness was not before the Court.

This case reinforces the strict interpretation of time limits prescribed in the Arbitration Act for challenging arbitral awards. It confirms that the three-month period in Article 34(3) of the Model Law for applications to set aside arbitral awards is peremptory and cannot be extended by the courts, even through condonation applications. The case also illustrates the procedural complexities that can arise when labour disputes are channeled through commercial arbitration rather than the labour law framework, and the importance of timeously appealing decisions that may affect jurisdictional issues.