Arbitration in Africa

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You are here: Home / Biltrans Services (Pvt)Ltd v The Minister of Public Service ,Labour and Social Welfare and Others

NAME OF CASE

Biltrans Services (Pvt)Ltd v The Minister of Public Service ,Labour and Social Welfare and Others

CITATION

CCZ16/16

NAME OF THE COURT

Constitutional Court of Zimbabwe

CITY AND COUNTRY

Harare, Zimbabwe

KEYWORDS

Arbitration, setting aside, enforcement, award

SUMMARY OF CASE

The second to the sixth respondents were employees of the applicant until they were dismissed for misconduct.  They were aggrieved by the dismissal and raised a complaint of unfair labour practice with a labour officer, claiming overtime and several other allowances that they alleged the applicant owed them.  When conciliation failed to yield a settlement, the dispute was referred to compulsory arbitration.  The arbitrator found in favour of the second to the sixth respondents. The applicant filed an appeal with the Labour Court, but failed to file heads of argument, leading to the second to the sixth respondents successfully applying to the Labour Court for dismissal of the appeal for want of prosecution.  The second to sixth respondents then applied to the arbitrator for quantification of the award.  They were awarded USD$99 882-60.  They then applied to the High Court to have the arbitral award registered as an order of the High Court. The High Court granted the application for registration. 

 The applicant noted an appeal to the Labour Court against the quantification. In the meantime the second to sixth respondents armed with a writ of execution proceeded to attach the applicant’s property.  The applicant immediately filed an application for stay of execution of the writ with the High Court.  The application was dismissed.   The applicant then applied to the Constitutional Court seeking inter alia an order declaring Section 98(14) of the Labour Act [Chapter 28:] unconstitutional in that it violates Section 56(1) of the Constitution. Section 98(14) of the Labour Act provides as follows:

Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of subsection 13to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any magistrates court, the High Court….+

Key Holdings:

  • In registering an award, the High Court and the Magistrates Court will not be carrying out a mere clerical function. While the registering Court may not go into the merits of the award, since its duty is to provide an enforcement mechanism and not to usurp the powers of the Labour Court,  it must be satisfied before registering the award that all the necessary formalities have been complied with. The High Court and the Magistrates Court would be exercising a judicial function in carrying out the inquiry before registering the award. The inquiry the Court has to undertake and the factors it has to consider are meant to define the content and scope of the right to equal protection of the law. They guarantee the right to equal protection of the law through judicial process.
  • The application was dismissed for lack of merit.