JUDGMENT NO. CCZ 16/2016
CONST. APPLICATION CCZ 4/2016
unconstitutional. It was his submission that s 98(14), by not providing that upon registration of an
award a judge of the High Court may examine the award on the merits, deprives a party against
whom the award is made of the protection of the law as enshrined in s 56(1) of the Constitution,
since it reduces a High Court judge to play the role of a clerk who, as a matter of course, must
routinely rubber stamp the arbitral awards. In the same vein, it robbed the High Court of judicial
authority vested in it by s 162 of the Constitution. In the applicant’s view, s 198(14) not only
violates ss 56(1) and 162 of the Constitution, it also amounts to an unfair labour standard contrary
to s 65(1) of the Constitution.
Mr Chimombe for the first respondent indicated that he would stand guided by the
decision of the Court. Mr Dembure for the second to the sixth respondents argued that there was
nothing unconstitutional about s 92E(2) of the Act. It was his submission that s 92E(2) should be
read in conjunction with s 92E(3), which provides that the Labour Court may make an interim
determination pending the determination of the appeal. Failure by a party to exploit the remedy
of interim relief does not render s 92E(2) of the Act unconstitutional.
With regards to s 98(14) of the Act, Mr Dembure argued that the provision does
not take away the High Court’s authority to decline in appropriate circumstances to register the
award. It could not be argued that a High Court Judge is reduced to discharging a clerical function
when considering an application for registration of a determination appealed against in terms of s
98(10) of the Act. In any event, he argued, the fact that a party can oppose registration of an award
means that both parties are equally protected by the law and there can thus be no question of a
violation of s 56(1) of the Constitution.
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