INTRODUCTION

The idea of the inevitability of conflict has been echoed in divers manners across the corridors
of time. Davison Kanokanga says that “disputes between individuals and even between entities
are a feature of everyday life1. Christopher et al says that, ”conflict is an inevitable
characteristic and perspective in employment relations. This is motivated and precipitated by
the dichotomy of interests and goals between parties in an employment relationship, that is,
employers and employees”2. In another place it is stated that “since immemorial times,
disagreements, misunderstands and conflicts have existed and can be traced back from one
generation to another”3. The same sentiments have been echoed by the adherents of the
labour law theory of Pluralism which views conflict in an employment relationship as
inevitable4.

Having noted that conflicts and disputes in employment settings and indeed in general life are
bound to happen, it cannot be overemphasised that these are damaging. Disputes or otherwise
conflicts if not held in check wastes the resources and the emotions of those involved in it. It
follows that once a dispute arise, a way has to be found of dealing with it in such a manner that
benefits both parties in a conflict. In simple terms, conflict must be solved.

In pre-colonial times and before the advent of regular courts, the people dwelling in what is
modern day Zimbabwe had simple and inexpensive ways of adjudicating their disputes. They
referred them to the elders, or a body of people specially set up or constituted to deal with
such an issue. The practise is so drilled into the culture that people who still live in communal
land still adhere to such practises5.

1
D. Kanokanga, Commercial Abitration in Zimbabwe, (2020) at 9
2
C. Watadza, Effectiveness of Conciliation and Arbitration in the Ferro-Chrome Industry in Zimbabwe (2016) Vol.12,
No.25 European Scientific Journal
3
Keynote Adress at International Abritration – the Dawn of the new erain South Africa by Formr Deputy Minister
of Justice and Constitutional Development Hon JH Jeffrey.
4
M. Gwisai Labour Law and Labour Relations in Zimbabwe (2006)
5
Opuruomu v Okpokam (1998) 4 NWLR Part 90, 554.
However, the advent of the white coloniser and also the development and the complexity of
the society that ensued thereafter including such changes as the mode of production and the
general economic setup of country, litigation became the norm in solving many consequential
commercial and labour disputes. In fact, labour developed to cater for to that part of the
economy that consists of paid labour6.

The establishment of litigation resulted in the courts being overwhelmed with cases. This
inevitably caused lengthy delays. The appeal and review procedures available to litigants
through the courts system further causes debilitating delays in the solution of the cases. These
factors, coupled with the rigidity of the courts, the adversarial nature of litigation and the costs
associated with it led to the search of alternative disputes resolution methods.

One alternative to litigation was arbitration. In as much as there are other methods of dispute
resolution, this study focuses on Arbitration. It focuses on the legal regime for arbitration in
labour disputes.

The Arbitration Act7 defines arbitration in these terms, “Arbitration means any arbitration
whether or not administered by a permanent arbitral institution” 8. This definition is for all
intents and purposes unhelpful in shedding light on the nature of arbitration. However, some
individuals have lifted up their fingers to define arbitration. Arbitration has been seen as a
“process whereby the parties to a dispute enter into a formal agreement that an independent
and impartial third party, the arbitrator, chosen directly or indirectly by the parties will hear
both sides of the disputes and make an award which the parties undertake through agreement
to accept as final and binding”9. It has also been seen as a private and consensual method of
dispute resolution in which the disputants agree to submit their disputes to a neutral party for a
final award which will be binding upon the parties”10.

6
D. Kanokanga, Commercial Abitration in Zimbabwe, (2020) at 3
7
[Chapter 7:02]
8
Article 2 of the Arbitration Act.
9
P. Ramsden The Law of Arbitration South African and International Arbitration (2018) at 6
10
D. Kanokanga, Commercial Abitration in Zimbabwe, (2020) at 9
BACKGROUND OF THE STUDY.

Having established that the end of Arbitration is to avoid the disadvantages and infirmities
fraught in litigation. And too that the generalist adjudicate might is almost bound to stumble in
considering complex and technical issues in some industries and professions. The question that
this study seeks to answer is whether the Arbitration regime with regards to employment
relationships sufficiently cure the cure the said afflictions that come with litigation.

However, it can be noted that in the recent history of the judgements a considerably great
number of the judgements published in the Supreme Court heretofore are judgements dealing
with Labour disputes. Many of which passed through the process of Arbitration to which either
of the parties or all of them appealed to the regular courts.

That being the case, one can conclude that the whole point of Arbitration is defeated. Cases in
the Labour Court and Supreme Court take a considerably longer period and further all those
challenges that associated with litigation would be back again. These case, among others
include such cases as ZESA Holdings (Private) Limited v Itayi Utah11, Dube v PSMAS and
Another12, Rio Zim Limited and Another v Maranatha Ferochrome (Private) Limited13

This study seeks to interrogate whether this is a result of the problems associated with the
Legal regime of Arbitration in the solution if Labour disputes.

Furthermore, the Arbitration process itself in the field of Labour disputes is not entirely free
from regular courts. The Arbitration awards and rulings still needs the regular courts to be
effective. However, the award or ruling registration proceedings are themselves court
proceedings. With these and other considerations, this study is carried out. It seeks to critically
analyse the legal regime of Arbitration process in the solution of Labour disputes.

11
SC 32 of 2022
12
SC 5 of 2022
13
SC 30 of 2022
RESEARCH QUESTIONS OBJECTIVES

Research Questions

1. How has been Arbitration been defined, what is its scope and jurisprudence in
Zimbabwe?
2. What is the purpose of arbitration in labour disputes and what does it seeks to achieve?
3. What is the legal regime for Arbitration in the solution of labour disputes in Zimbabwe?
4. Does the Arbitration regime in the solution of labour disputes, affords the disputants
without facing all those.

Research Objectives

1. To understand the nature and purpose of arbitration in the solution of labour disputes.
2. To look at what the arbitration legal regime which seeks to offer effective solutions in
the labour field.
3. To assess whether the currents legal regime for labour disputes arbitration achieves its
intended purpose.
4. To make recommendations based on the finding pursuant to the above objective.

PROBLEM STATEMENT

Notwithstanding the existence of a system of arbitration in Zimbabwe, which as has been

RESEARCH METHODOLOGY
To enable the researcher to come up with a useful paper number of research methods would
be used these include:

Desktop Research: information and data relevant to this research would be collected from
both primary and secondary sources to understand arbitration in the context of the solution of
Labour disputes. The study will deal with arbitration and the process of arbitrations as is
defined and expressed in case law, statutes and texts.

Further in developing this study, articles from renowned scholars would be employed which
touch the field of mineral marketing and exporting. In summary this research will collect
information from the following main sources:

1. Statutes and policy documents.

2. Case law.

3. Textbooks.

4. News publications and news articles.

5. Law journals and other journals.

6. Internet based research

LITERATURE REVIEW

The books such as The Law of Arbitration South African and International Arbitration by P.
Ramsden and Commercial Arbitration in Zimbabwe by D. Kanokanga set out the nature and
definitions of Arbitration. These generally see arbitration as a process whereby the parties to a
dispute enter into a formal agreement that an independent and impartial third party, the
arbitrator, chosen directly or indirectly by the parties will hear both sides of the disputes and
make an award which the parties undertake through agreement to accept as final and
binding”14. These men generally put the advantages and disadvantages of arbitration.

14
See note 1 and 2 above
In the solution of Labour disputes through arbitration, the starting point is to consider the
Labour Act15. This statute lays down some rules relating to when disputes are to be referred to
arbitration. An instance could be Part XII of the of the Labour Act which states that Arbitration
would follow after the Labour Officer issues a certificate of no settlement16 among other
provisions.

Another worthy source is the Arbitration Act which seeks to give effect to domestic and
international arbitration agreements and also to apply to apply, with modifications, the Model
Law on International Commercial Arbitration adopted by the United Nations Commission on
International Trade Law adopted in 1985by the United Nations Commission on International
Trade Law.

Christopher Watadza et al, in their article “Effectiveness of Conciliation and Arbitration in the
Ferro-Chrome Industry in Zimbabwe” concluded that:

“It is worth to highlight that the system has not achieved the effectiveness and efficiency
it was designed and adopted to achieve. This research has uncovered that conciliation
and arbitration are dogged with numerous challenges and inefficiencies that have
impacted negatively on the effectiveness of the alternative dispute resolution procedure.
The regulatory environment was reported to be the greatest undoing and was not
enabling an adequate playing field. Gaps in terms of guidelines, time lines to mention on
but a few was highlighted as the major challenges faced by conciliation and arbitration
and impacting negatively on the dispute resolution mechanism. Disputes find their way
back in to the formal court litigation system, which points to the fact that conciliation
and arbitration are not effective enough to settle disputes at an early stage. The State as
the main agent for conciliation and arbitration was reported to be in adequately
resourced to facilitate the prompt settlement and conclusion to disputes at work place”.

15
[Chapter 28:01]
16
Section 93 of the Act.
Another study, published by Mildred Mahapa & Watadza Christopher, “The dark side of
arbitration and Conciliation in Zimbabwe” ,the authors suggest that although there are some
benefits to be seen from arbitration of labour disputes, there are still some other problems
such as lack of transparency, unrealistic rulings and awards of the arbitrators and lack of
jurisprudence within arbitration regime.

CHAPTER SYNOPSIS

Chapter 1

This chapter is a detailed proposal and justification of this study. It contains the

introduction and background of the study, the research questions, and objectives,

methodology. It further discusses the significance of this study and its limitations. Lastly

it gives a chapter synopsis.

Chapter 2

This chapter will give a consideration of the Labour Arbitration legal framework in Zimbabwe. It
will give a discussion based of the statute law, case law authoritative texts in Zimbabwe.

Chapter 3

This Chapter will explore the purpose of arbitration its advantages and the rationale behind it. It
will give the case law views on the import of arbitration in the solution of labour disputes
together with views from texts.

Chapter 4
This Chapter will consider the strength and weaknesses of the system of arbitration in the
solution of labour disputes in Zimbabwe.

Chapter 5

The last and final chapter encompasses the conclusions and recommendations to be made
considering the revelations this study could have made