NAME OF CASE
National Social Security Authority v Chairman, National Social Security Authority Workers Committee and others
NAME OF THE COURT
High Court of Zimbabwe
CITY AND COUNTRY
Setting aside of an arbitral award, review, reasons for the award, public policy, irrationality
SUMMARY OF CASE
This was a review application by the National Social Security Authority in connection with an arbitral award handed down by Mr Chigwendere (arbitrator). The During the period 5 January 2001 to 29 June 2001 the Workers Committee of NSSA convened various meetings for the purpose of negotiating and bargaining on general salary increase, schooling assistance for employees’ children, long service awards and transport allowances. The Workers Committee failed to reach agreement on the various issues and recommended that the matter be referred to arbitration. On 30 April 2001, it was decided that the matter should be referred to the Ministry of Labour for compulsory arbitration. However, on 31 May the Workers Committee reached agreement on the issue of the schooling allowance for employees’ children. That narrowed down the issues for arbitration to the general salary increase and the amount of the transport allowance. Both NSSA and the Workers Committee made written submissions to Chigwendere who issued his award on 3 October 2001. In his award, he set out the background to the disagreement, the issues on which the parties agreed and then the details of his determination. NSSA applied to the High Court for a review of the award. The grounds for review laid out by the applicant are that the arbitrator did not provide for reasons for the award, the award was against public policy and that it was irrational.
The issue for determination by the court was whether the award was irrational and against public policy and whether an award could be set aside on the ground that the arbitrator did not provide the reasons for the award.
- There was nothing irrational about the award and even if it was irrational, irrationality is not a ground for review. The arbitrator met the two parties halfway . It is against the spirit of the UNCITRAL Model Law to hold that, if an award did not comply with all the requirements of Article 31, it was a nullity. That would mean that if the arbitrator did not state the date of the award or the place of arbitration, the award would be a nullity. The court held that such an approach would be too formalistic. If an arbitrator has failed to state the date or place of arbitration, and it is important that that should be done, the arbitrator could remedy the omission. It is not uncommon for a court to deliver judgment and then state that the reasons therefore will be delivered later.
- The handing down or delivery of reasons for the judgment at a later date does not affect the actual judgment or date thereof. It does not extend the proceedings before the court. If an arbitrator fails to comply with the requirements of Article 31 of the UNCITRAL Model Law then a party aggrieved by the omission may approach the court for an order of mandamus.