Robert Kudakwashe Karemba v The Zimbabwe Mining Development Corporation

The applicant was employed by the respondent and was dismissed from employment after being charged with various offences. He challenged the dismissal through conciliation by the Labour Officer, and the matter was referred for compulsory arbitration. While arbitral proceedings were pending, the parties entered into a mutual agreement on 31 March 2014 for termination of the employment contract and payment of a package to the applicant, titled "Agreement of Mutual Termination of Contract of Employment". The agreement contained a clause (paragraph 19) providing that disputes arising from the agreement would be referred to arbitration. On 28 November 2014, the agreement was registered as an arbitral award by Arbitrator Mr Zakeyo Mutimutema upon the applicant's request. The applicant then sought registration of this arbitral award in the High Court in terms of s 98(14) of the Labour Act [Chapter 28:01].

• Whether the mutual agreement entered into by the parties terminated the pending arbitral proceedings
• Whether the arbitrator had jurisdiction to register the mutual agreement as an arbitral award while proceedings were still pending
• Whether the arbitral award was a nullity and therefore unregisterable
• Whether the High Court should register the arbitral award in terms of s 98(14) of the Labour Act

1. The arbitral award issued by Arbitrator Mr Zakeyo Mutimutema at Harare on 28 November 2014 was registered as an order of the High Court. 2.1 The respondent was ordered to pay the applicant US$453,271.00 less tax and other permissible statutory deductions. 2.2 The respondent was ordered to pay the applicant's pension of US$49,397.00 to a pension fund of the applicant's choice. 3. All payments were to be made in accordance with the provisions of Clause 10 of the arbitral award. 4. The respondent was ordered to pay the applicant's costs.

1. Arbitral proceedings can only be terminated by an order of the arbitral tribunal in accordance with Article 32 of the Arbitration Act [Chapter 7:15]; without such an order, proceedings remain pending before the arbitrator. 2. Article 30 of the Arbitration Act empowers an arbitral tribunal to record a settlement reached during arbitral proceedings as an award on agreed terms if requested by the parties. 3. When an arbitrator has accepted a reference and a dispute exists, the arbitrator has an obligation to take the case in hand and dispose of it; the arbitrator's mandate only ends with the granting of a final award. 4. A clause in a settlement agreement providing for future arbitration of disputes arising from that agreement does not oust the arbitrator's jurisdiction to finalize the existing proceedings by converting the settlement into an award. 5. Where an arbitral award has not been set aside and no justification is provided for refusing registration, the court will register the award under s 98(14) of the Labour Act.

The court cited with approval the principle from Telecall (Pty Ltd) v Logan [2000] ZASCA 97; 2000 (2) SA 782 (SCA) that before there can be a reference to arbitration, a dispute capable of proper formulation at the time an arbitrator is to be appointed must exist, and there cannot be an arbitration in the absence of a dispute. The court also noted the maxim from Vein Huber that "When arbitrators have accepted reference, they must take the case in hand and dispose of it." The court observed that in the present case, the arbitrator did not depart from the agreement by the parties but merely reduced the same agreement into an award, and did not determine any issues arising from the agreement.

This case is significant in Zimbabwean labour and arbitration law as it clarifies the relationship between settlement agreements and pending arbitral proceedings. It establishes that arbitral proceedings do not automatically terminate upon parties reaching a settlement agreement; rather, formal termination requires an order from the arbitral tribunal. The judgment affirms the arbitrator's continuing jurisdiction to convert settlement agreements into arbitral awards under Article 30 of the Arbitration Act, even after parties have reached mutual agreement. This promotes finality and enforceability of settlements reached during arbitration by allowing them to be formalized as enforceable arbitral awards. The case also demonstrates the limited scope of judicial review when registering arbitral awards - the court will register awards that have not been set aside unless there is clear justification for refusal.