Arbitral Awards & Labour Court Judgements issued prior to 2019 may be registered and executed in USD After all. A review of CFI Holdings t/a Farm & City v Machaya SC 37/2023

“The request by the appellants for the court a quo to determine the issue of the currency was in essence a request for the court to determine the lawfulness or correctness of the decision of the Labour Court. The court a quo did not have the power to determine the propriety of the judgment of the Labour Court. To do so would amount to delving into the merits of the matter before the Labour Court. The court a quo could only do so in the exercise of its review or appeal powers.”


The dispute between Farm & City and Andrew Machaya under the Supreme Court case number SC 37 / 2023 involved an appeal against the registration of a Labour Court judgement amounting to USD 177,408.00 in favour of the Respondent. The significance of this judgement is that awards and judgements, that were issued before 2019, may be registered and executed in USD provided certain conditions are present. This is significant because the conventional understanding is that every judgment before 2019 February must be payable and executed in ZWL at the rate of 1 USD: 1ZWL. This judgement, if religiously followed, will result in the protection of several employees who are sitting on unregistered and unexecuted arbitral awards and Labour Court judgements issued before 2019.


In 2003 the respondent was suspended by the appellant. He was its Personnel Manager. In 2012 the Supreme Court nullified the suspension leading to his retirement. He was fully paid his wages and benefits thereafter. This was all paid in USD. The respondent then applied to the Labour Court for quantification of the outstanding dues. He was awarded USD 177,408.00. He then proceeded to apply to the HC for the registration of the Labour Court judgement for enforcement. This was in terms of section 93B(3) of the Labour Act (Chapter 28.01).

At the High Court and in the registration proceedings, the appellant employer argued that the judgement ought to have been in ZWL given the Finance Act (Number 2) of 2019. It then argued that because the judgement was in USD it was not sounding in money and therefore not registrable. The HC argued that delving into the propriety of the proper currency would be taking an appellate role which was not acceptable. The High Court also argued that the respondent had correctly canvassed and proved the requirements for the registration of the LC judgment. It then registered the LC judgement leaving the appellant company not amused.

The court’s findings and the law

Before the SC was a question as to whether the requirements for the registration of the LC judgment had been fulfilled.

Requirements for the registration of an award

The court ruled that the five requirements that had to be fulfilled to register an award are as follows:

“The requirements that must be satisfied before the High Court or the Magistrates Court grants an application for registration of an award are:

  1. The award must have been granted by a competent arbitrator.
  2. The award must sound in money.
  3. The award is still extant and has not been set aside on review or appeal.
  4. The litigants are the parties to the award. The award must be certified as an award of the arbitrator.”

The court observed that even though these requirements applied to an arbitral award, with equal force they also applied to the registration of LC judgements.[1] Regarding the question as to whether the judgement was sounding in money, it was observed by the SC that such a question had not been brought to the fore in the court aquo and could thus not be raised for the first time in the SC.

    The question of law raised in the court a quo

    It was the SC’s observation that during the proceedings aquo, the Appellant argued that the issue of currency ought to be considered by the HC.  The SC pointed out that had the HC acceded to this request it would have acted beyond its powers. It observed:

    “The limitation of the court a quo’s powers was addressed in the remarks cited above from Vasco Olympio, supra, and Biltrans (Pvt) Ltd v Minister of Public Service, Labour, and Social Welfare & Ors, supra, where it was clearly pronounced that the court a quo would not have the power to delve into the merits of the case in an application for the registration of an award and in this case a Labour Court judgment. All that the court a quo was required to do was to determine whether the requirements for registration of the judgment had been met.”

    The HC was therefore not in a position to go into the merits of the case before it and decide on the issue of the correct currency. The court also noted that the appellant had not done anything to challenge the currency issue since its leave to appeal had been abandoned at the LC. This had left the LC judgement extant with no possibility that it would be turned around.

      Conclusion of the dispute

      The appeal was dismissed with costs for lack of merit.

      Own comment

      The significance of this case is huge. It puts employees in a position where if one has an award or a judgment that was quantified in USD before February 2019, such a judgment can be registered provided the employer has not challenged the same. Presented with such an application a Magistrate Court or a High Court cannot pay attention to the arguments related to the 2019 currency changes because doing so would amount to reviewing the award being registered. The HC or MC only register Labour Court judgements. The two courts cannot delve into the merits of the matter. This judgement is commendable for its stance towards the protection of employees. It resonates very well with the theory of labour law, which seeks to balance the unequal power between employers and employees.

      [1]              CFI Holdings t/a Farm & City v Machaya SC 37 / 2023 on page 6.


      Manyenga v Petrozim (Private) Limited SC 40/23

      “In order for the defence of impossibility to succeed, the impossibility must be objective in the sense that it must be a real impossibility which is not based on a party’s disinterest or unwillingness to perform their contractual duties”.


      Manyenga v Petrozim (Private) Limited is authority of the fact that an employee facing a disciplinary charge involving an omission can have a defence by way of arguing that they couldn’t perform the legal duty imposed on them.

      This case deals with a situation where an employee was charged and dismissed for an omission that he was accused of committing at a time when he was employed as an acting general manager for the respondent company. The omission was that he had failed to advise the respondent’s board of the operational challenges that were being faced by the respondent. He argued that he could not have been able to advise the board due to the shortfalls that were inherent in his job. It was this argument that boiled down to the common law rule/defence called  “lex non cogit ad impossibilia”.  The effect of the employee’s defence was that “objective impossibility in discharging a legal duty is always a defence when the type of conduct charged is an omission.” It was this defence that was placed before the Supreme Court.


      The appellant, Johannes Manyenga, worked as the Deputy General Manager for the Respondent in this matter. He was accused of non-disclosure to the board of material issues that were negatively affecting his employer.[1] Despite denying the charges levelled against him, he was eventually dismissed from employment.[2] Irked by the disciplinary hearing outcome,  the appellant unsuccessfully appealed to the Labour Court. It was the Labour Court’s position that there was no misdirection on the part of the disciplinary hearing, considering the evidence that was placed before it.[3] Aggrieved with the Labour Court’s findings, the appellant approached the Supreme Court. The question before the Supreme Court was whether the court had found sufficient ground to confirm the conviction and dismissal of the appellant.

      The court’s findings and the law

      Impossibility of performance

      The first observation that the Supreme Court made was that “objective impossibility in discharging a legal duty is always a defence when the type of conduct charged is an omission”.[4] Here the court’s observation was that the appellant employee could not inform the respondent’s board of directors of the shortcomings in the respondent’s operations because his ability to do so was curtailed by the respondent. No board meeting had been held at the time the appellant acted as the General Manager (GM) for the Respondent. It was also observed that there was a standing instruction that all communication to the board had to happen through the GM. His substantive appointment was that of a deputy GM. In addition, it was observed that no employee was reporting to the Appellant as the Acting GM.[5] All these barriers made it objectively impossible for the Appellant to inform the respondent or its board of the challenges that were faced by the operations. The impossibility of performing the expected duties was seen as a defence when one is charged with an omission.

      For impossibility to be a defence, the court ruled that the impossibility must result in “real impossibility”.[6] Imagery or hypothetical impossibility will not apply as a defence against a charge of an omission. In addition, the impossibility must be permanent. Temporary impossibility will not exonerate an employee from not performing.[7]

      Admission in the course of proceedings

      The objective impossibility faced by the Appellant to inform the Respondent of the operational challenges bedevilling its operations was confirmed by an admission that was made in the disciplinary hearing.[8] The court argued that once an admission was made it would bind the maker if later such an admission is not withdrawn. It remarked:

      “Indeed, the effect of an admission is settled law. Once made it binds its maker with the attendant consequences see Kettex Holdings P/L v S Kencor Management Services P/L HH 236-15.”

      The admission confirmed that the employee could not inform the board of the challenges faced by the respondent company when no such board meeting had been convened.

      The court also argued that the fact that the appellant had access to the board chairman did not mean that he had access to the board. It distinguished between the board as a committee of persons that convene at specific intervals as opposed to its chairman who is a single individual.[9] It further argued that a board entails a properly constituted board. Without access to this properly constituted board, the appellant could not have been said to have had access to the board.[10]

      Conclusion of the dispute

      The court found that the Appellant must not have been found guilty and dismissed because it was impossible to do what the respondent expected him to do.

      Own comment

      The importance of this judgement is twofold. An employee can escape a disciplinary charge wherein he or she is accused of not doing something by pointing out that it was not possible to do the legal act expected of him or her. The failure must not be deliberate or temporary. It must be a permanent impossibility that is not imputed on the employee. This judgement also highlights the effect of an admission. Once an admission has been put across and not withdrawn it has the legal effect of binding the person that makes the admission. Proof of such an admission may not be required.

      [1]              Manyenga v Petrozim (Private) Limited SC 40/23 on paragraph 5.

      [2]              Manyenga v Petrozim (Private) Limited on paragraph 10.

      [3]              Manyenga v Petrozim (Private) Limited on paragraph 17.

      [4]              Manyenga v Petrozim (Private) Limited on paragraph 24.

      [5]              Manyenga v Petrozim (Private) Limited on paragraph 32 wherein it was held: “To add on to the above submissions, the appellant’s predicament was further compounded by the fact that he had no subordinates reporting to him on the company’s operations.”

      [6]              Manyenga v Petrozim (Private) Limited on paragraph 27.

      [7]              Manyenga v Petrozim (Private) Limited on paragraph 28 wherein the court remarked: “Furthermore, the impossibility to perform must not only temporarily prevent a party from performing their contractual obligations. It must be one where performance of the contract is finally and completely impossible. See the case of Mutangadura v TS Timber Building Supplies 2009 (2) ZLR 424 (H) at 429C-F.”

      [8]              Manyenga v Petrozim (Private) Limited on paragraph 32.

      [9]              Manyenga v Petrozim (Private) Limited on paragraph 33.

      [10]            Manyenga v Petrozim (Private) Limited on paragraph 32.

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