Mandla Khanye Khumalo and Others v Ingwebu Breweries

The three applicants were employees of the respondent who were unfairly dismissed on 31 December 2004. They pursued a labour dispute through arbitration. Arbitrator Mason Imbayago issued an award on 27 September 2006 ordering reinstatement without loss of benefits, or damages in lieu if reinstatement was not tenable. When reinstatement did not occur, Imbayago issued another award on 27 September 2010 ordering back-pay from February 2009 to September 2010 and 12 months' salary as damages, but did not quantify the amounts or award interest. Subsequently, arbitrator S. Willie quantified the awards on 9 March 2015, awarding specific monetary amounts to each applicant but again without interest. The applicants then obtained a court order from Kamocha J on 25 June 2015 registering the arbitral award (HC 1290/15). That order included a clause stating that if amounts were not paid by end of May 2015, interest would accrue at the prescribed rate. The respondent paid the applicants in instalments. After being fully paid, the applicants brought this application seeking interest at 5% per annum from 27 September 2010 to the end of 2015.

• Whether the court has jurisdiction to award interest retrospectively on arbitral awards that did not include interest
• Whether the issue of interest was res judicata having been addressed in the earlier registration order
• Whether the court has jurisdiction to review or modify an order of another judge of coordinate jurisdiction
• Whether the applicants had established grounds for a declaratory order under section 14 of the High Court Act
• Whether new relief (declaratory order) can be introduced in an answering affidavit when not raised in the founding affidavit

The application was dismissed with costs.

A court lacks jurisdiction to examine or review an order made by another judge of coordinate jurisdiction. Where an arbitral award has been registered by court order and that order has addressed the issue of interest, the matter is res judicata and cannot be re-litigated. An application stands or falls on the founding affidavit, and new relief cannot be imported through an answering affidavit. For a declaratory order under section 14 of the High Court Act, an applicant must have a direct and substantial interest in an existing, future or contingent right that has not already been determined. Where arbitral awards specifically exclude interest and parties do not contest this exclusion through appeal or other remedies under the Arbitration Act, they cannot subsequently seek to have interest added through separate court applications.

Mathonsi J made several notable obiter observations: (1) He questioned whether the order of Kamocha J was properly constituted as a provisional order given it was worded as a show cause order but lacked a return date and did not indicate when or how the respondent should show cause; (2) He commented on the reasonableness of the applicants' continued pursuit of their former employer 13 years after dismissal, suggesting they should have sought alternative employment or other means of livelihood sooner, stating "Everything has an end" and "They cannot expect to continue milking the same poor old cow"; (3) He remarked that in the current depressed economic situation, the applicants may no longer be employable; and (4) He advised that it would be worth the applicants' while to redirect their energies to other income-generating endeavors rather than continuing to pursue the respondent.

This case is significant in Zimbabwean law for establishing important principles regarding: (1) the limits of jurisdiction of courts to modify arbitral awards that have been registered, particularly where the arbitrator has not awarded interest; (2) the principle that a judge cannot review or modify orders of coordinate jurisdiction; (3) the application of res judicata to prevent re-litigation of issues already determined; (4) the principle that applications stand or fall on the founding affidavit and new relief cannot be introduced in subsequent affidavits; and (5) the requirements for obtaining declaratory relief under section 14 of the High Court Act. It also addresses the finality of arbitral awards and the limited circumstances in which parties can seek to supplement or modify such awards after registration.