Wonder Chaire and 9 Others v MT Darwin Bazaar

The applicants were ten former employees of the respondent who were dismissed from employment between May and June 2011. A labour dispute arose concerning their termination, which was referred to arbitration in terms of the Labour Act [Cap 28:01]. On 1 November 2011, arbitrator M.C. Kare made an arbitral award directing the respondent to pay the applicants certain terminal benefits and gave leave for quantification if there was doubt as to quantum. The matter was referred back to the arbitrator who, on 30 November 2011, quantified the amounts due to the 10 applicants totalling $23,569.00. The applicants then sought to have the arbitral award registered as an order of the High Court for enforcement. The respondent opposed the application on the ground that it had challenged the arbitral award in the Labour Court by way of a review application and stated that a further application for stay of execution was filed in the Labour Court, claiming the matter was sub-judice. It was unclear from the papers what became of those two applications, and the applicants insisted no application for stay of execution was made.

• Whether a subsisting arbitral award should be registered by the High Court pending a review application in the Labour Court
• Whether a review application to the Labour Court has the effect of suspending an arbitral award
• What grounds are required to refuse registration of an arbitral award

1. The arbitral award of M.C. Kare dated 1 November 2011 as well as the quantification award dated 30 November 2011 were registered as an order of the court. 2. The respondent was directed to pay the applicants the respective sums set out therein totalling US$23,569.00. 3. The respondent was ordered to bear the costs of the application.

A review application to the Labour Court does not suspend or stay the execution of an arbitral award. Registration of an arbitral award can only be refused where: (1) an application for stay of execution or suspension of the award has been made and granted in terms of section 92E(3) of the Labour Act; or (2) the party against whom the award is invoked satisfies the court of the existence of grounds of refusal set out in Article 36 of the model law in the Arbitration Act [Cap 7:15]. Where an arbitral award remains in subsistence and none of these conditions are met, the court has no reason to refuse registration. It would be absurd to formulate a construction that would allow litigants to circumvent section 92E(2) by couching their challenge of an arbitral award as a review instead of an appeal.

The court noted that it was not clear from the papers what became of the two applications filed in the Labour Court (the review application and the alleged stay of execution application), although the applicants insisted that no application for stay of execution was made. The court also observed that the question of whether an arbitral award should be registered pending appeal had been the subject of a number of decisions of the court, citing Baudi v Kenmark Builders (Pvt) Ltd HH 4/2012 and Ndlovu v Higher Learning Centre HB 86/10 as examples.

This case is important in Zimbabwean labour and arbitration law as it clarifies that a review application to the Labour Court does not automatically suspend an arbitral award. It reinforces the principle that litigants cannot circumvent the statutory requirements for suspending arbitral awards by merely filing review applications. The case strengthens the enforceability of arbitral awards by establishing that registration can only be refused on specific statutory grounds, namely a properly granted stay of execution under section 92E(3) of the Labour Act or grounds under Article 36 of the model law in the Arbitration Act. This provides certainty to parties who have obtained arbitral awards in labour disputes and prevents abuse of process by losing parties seeking to delay enforcement.