Senele Dhlomo-Bhala v Lowveld Rhino Trust

The applicant was a former employee of the respondent whose employment was terminated. She considered the termination unlawful and referred her case to a labour officer for conciliation under section 93 of the Labour Act. When conciliation failed, the matter was referred for compulsory arbitration. The arbitrator made an award in September 2012 in favour of the applicant, ordering the respondent to pay US$49,372.00 for outstanding salaries and employment benefits. The applicant sought to register this arbitral award with the High Court for enforcement purposes under section 98(14) of the Labour Act. The respondent had appealed the award to the Labour Court under section 98(10) and applied for a stay of operation pending appeal under section 92E. Both the appeal and stay application were pending at the time of the hearing.

• Whether an application for registration of an arbitral award must be made to the High Court sitting in open court or can be made to a judge in chambers
• Whether an appeal to the Labour Court automatically suspends the operation of an arbitral award under the common law rule or whether section 92E(2) of the Labour Act applies
• Whether the certification of the arbitral award was adequate for registration purposes
• Whether the applicant was required to submit the original arbitration agreement together with the arbitral award for registration
• Whether the court should decline registration based on the respondent's pending appeal and alleged merits thereof

The arbitral award dated 5 September 2012 by arbitrator C. Mesikano was registered as an order of the High Court. The respondent was ordered to pay the applicant US$49,372.00 within five days of service of the order. The respondent was ordered to pay the applicant's costs of suit.

1. The term 'High Court' in section 98(14) of the Labour Act and article 35 of the Model Law refers to the High Court as an institution as defined in the Constitution, not exclusively to judges sitting in open court as opposed to chambers. Applications for registration of arbitral awards can properly be brought by way of chamber application as they seek procedural relief. 2. Section 92E(2) of the Labour Act expressly provides that appeals to the Labour Court 'shall not have the effect of suspending the determination or decision appealed against.' This applies to all appeals made 'in terms of this Act' including appeals from arbitral awards under section 98(10). The common law rule that appeals automatically suspend decisions has been expressly altered by statute. 3. Where there is substantial compliance with certification requirements and no prejudice to the opposing party, technical defects in certification should not defeat registration. 4. In applications for registration of arbitral awards arising from compulsory arbitration under the Labour Act, there is no requirement to submit the original arbitration agreement because the Labour Act takes precedence over the Arbitration Act, and compulsory arbitration under the Labour Act arises by operation of law, not by private agreement. 5. The High Court will not consider the merits of appeals or stay applications pending before the Labour Court when determining applications for registration of arbitral awards.

The court observed that the decisions in Dhlodhlo v Deputy Sheriff of Marondera HH-76-11 and Mvududu v Agricultural Development Authority HH-286-11, which held that appeals from arbitral awards suspend the awards under common law, were incorrectly decided. The court noted with some surprise that the respondent persisted with arguments based on the common law suspension rule in the face of clear statutory provisions to the contrary. The court also commented that Parliament had 'obviously applied its mind to the delays inherent in the appeal process and considered the policy implications' and had 'consciously and deliberately decided that arbitral awards in the realm of labour relations should be enforced, despite any pending appeal.' The court described the respondent's attempt to distinguish between 'general' and 'special' appeals based on the heading to section 92E as 'opportunistic and mere nit picking' and 'fanciful word play.'

This case is significant in South African and Zimbabwean labour law for clarifying the procedure for registration and enforcement of arbitral awards under labour legislation. It firmly establishes that section 92E(2) of the Labour Act (similar provisions exist in South African labour legislation) applies to all appeals under the Act, including appeals from arbitral awards, and that such appeals do not automatically suspend the award. This overturns the common law position and promotes the expeditious enforcement of arbitral awards in labour disputes. The judgment also clarifies that applications for registration can be brought by way of chamber application and that the Labour Act takes precedence over general arbitration legislation in employment matters. The case demonstrates the policy choice by the legislature to avoid delays in enforcement of labour awards despite pending appeals, recognizing the imbalance of power between employers and employees and the need for swift justice in employment disputes.