Thandiwe Mandiringa v National Social Security Authority and Others

Six separate labour matters were brought before the High Court as chamber applications for registration of arbitral awards in terms of section 98(14) of the Labour Act [Chapter 28:01]. In each case, the respective applicant had been dismissed or suspended from employment without salary and benefits. The labour disputes were referred to arbitration under the Labour Act, and in each case the arbitrator ordered reinstatement of the applicant without loss of salary and benefits from the date of dismissal or suspension. However, none of the arbitral awards specified a monetary amount of damages payable in lieu of reinstatement, nor did they compute what the loss of pay and benefits to the date of the award amounted to. In some cases, the arbitrator left the quantification of damages to be agreed upon between the parties, but no such agreement was reached. The applicants sought to register these awards as orders of the High Court to enable execution. The matters were consolidated and heard together by Makarau J to determine the common legal issue arising.

• Whether arbitral awards that do not sound in money can be registered as orders of the High Court in terms of section 98(14) of the Labour Act
• Whether an arbitrator's order for reinstatement without specifying an amount of damages in lieu of reinstatement complies with section 89(2)(c)(iii) of the Labour Act
• Whether incomplete arbitral awards that fail to quantify loss of pay and benefits are competent for registration
• Whether writs of execution can issue for reinstatement orders that do not specify monetary amounts

Each application was dismissed. Each party in each application was ordered to bear its own costs.

An arbitral award ordering reinstatement of an employee that does not specify a monetary amount of damages payable in lieu of reinstatement is incomplete and incompetent, and cannot be registered as an order of court in terms of section 98(14) of the Labour Act. Section 89(2)(c)(iii) of the Labour Act contains a peremptory provision requiring that any reinstatement order must specify an amount of damages to be awarded as an alternative to reinstatement. Arbitrators and determining authorities are duty bound to assess and specify such damages. Awards that fail to sound in money cannot be registered because: (1) the section contemplates awards in monetary terms to enable jurisdictional determination between magistrates' courts and the High Court; and (2) writs of execution can only issue for payment of money, delivery of goods/premises or ejectment, not for bare reinstatement orders.

The court made observations about how past practice of the court may have contributed to the mistaken belief that awards not sounding in money could be registered. The court also noted that computations of losses made by applicants themselves, even if accurate, cannot form the basis for writs of execution as they are not part of the arbitral awards and have not been determined by any authority in the presence of both parties. The court expressed appreciation for the submissions of legal practitioners who all agreed on what the correct practice should be. The court also observed that territorial jurisdiction of magistrates' courts is relevant only when determining which magistrates' court has jurisdiction, but not relevant for purposes of section 98(14) where the determinative factor is the monetary amount of the award.

This case is significant in Zimbabwean labour law (and potentially instructive for South African law given similarities in labour legislation) as it establishes the definitive practice regarding registration of arbitral awards. It clarifies that: (1) arbitral awards must sound in money to be registrable under the equivalent of section 98(14); (2) arbitrators ordering reinstatement must comply with the peremptory requirement to specify damages in lieu of reinstatement; (3) incomplete awards failing to quantify monetary compensation are incompetent and cannot be registered as court orders; and (4) writs of execution cannot issue for bare reinstatement orders. The judgment serves as an important reminder to labour arbitrators and determining authorities to strictly comply with statutory requirements when making reinstatement orders, following the principle established in Hama v National Railways of Zimbabwe. It provides clarity on court practice and procedure in labour matters involving arbitral awards.