LOWVELD RHINO TRUST V DHLOMO-BHALA (SC 34-20)

Introduction

Lowveld Rhino Trust v Dhlomo-Bhala is a matter that deals with the question whether the noting of an appeal at the Labour Court has the effect of suspending the registration and execution of an arbitral award being appealed against.

 A common mistake made by practitioners is were they note an appeal at the Labour Court and hope that an arbitral award will not be executed.

Lowveld Rhino Trust v Dhlomo-Bhala clearly outlines the law that applies to this subject and should be used as authority to the principle that the noting of an appeal against an arbitral award will not suspend the operation of the same.

The facts

The dispute arose when the appellant sent a mutual termination agreement to the employee (the respondent). Aggrieved by the letter the respondent argued that the termination was not mutual resulting in the matter going through conciliation and arbitration. The arbitrator came up with an award noting that the employee was unfairly dismissed. It was this award that was successfully registered with the High Court which then resulted in this current appeal.

Reasons for the judgement

Appeals to the Labour Court

  • The Supreme Court noted that section 92E (2) of the Labour Act governs all appeals and this section indicate that:

  “An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against”.

  • This critical and decisive finding was supported by the common law as will be noted below.

The Labour Court as a Creature of statute

  • The Supreme Court noted that the Labour Court was a creature of statute.
  • By creature of a statute, it is meant that an institution such as a court was created by statute.
  • The Courts finding was therefore that, the Labour Court can only do that which it is permitted to do in terms of this founding statute and remains bound by section 92E(2) mentioned above.

Vengesai and Ors v Zimbabwe Glass Industries Ltd 1 998 (2) ZLR 593

The court relied on the reasoning found in the Vengesai matter where the court had this to say:

“The grant or withholding of a stay of execution is at common law a matter of discretion reserved to a court in which such a discretion is imposed. It follows that in absence of any statute specifically conferring such a discretion on an inferior tribunal or authority, or otherwise regulating the question of enforcement of judgments pending an appeal from that authority, no such discretion can exist. Such a court or authority can exercise only the conferred by statute. It cannot order the suspension of its own judgment pending an appeal. It has no discretion to enforce its own judgment notwithstanding an appeal. The only basis upon which its judgment or order can be supposed to be stayed is where its enabling statute provides for the situation.”

Vengesai and Ors v Zimbabwe Glass Industries Ltd simply supported the argument that the Labour Act does not provide for the suspension of an arbitral award when its appeal against.

Safeguarding interests after an appeal against an award

The court highlighted that for one to avoid the execution of an award after noting an appeal against it, section 92E (3) of the Labour Act will have to be utilised. The section provides:

“Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires.”

The court emphasised that such an application does not give the Labour Court authority to suspend the registration of an award rather, it has the power to suspend the execution of the award after registration.

Chamber application as the correct procedure

The court also acknowledged that a chamber application is a correct procedure for the registration of an arbitral award.

Conclusion

The big lesson in Lowveld Rhino Trust v Dhlomo-Bhala (SC 34-20) is that an appeal against an arbitral award does not suspend the registration and execution of the same. Section 92E (3) of the Labour Act should be invoked by anyone contemplating protecting their interests after the appealing against an arbitral award.

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