MAVANGIRA
JA: After
hearing the parties on 13 September 2021, we gave our judgment on the
matter extempore.
Our written reasons for judgment have now been requested by the
respondent's legal practitioners. Hereunder appears the judgment
that was handed down extempore on 13 September 2021.
This
is the unanimous decision of this Court.
This
is an appeal against the whole judgment of the High Court dismissing
an application for the setting aside of an arbitral award and
granting an application for registration of that award.
At
the commencement of proceedings, appellant's counsel made an
application for the amendment of the appellant's grounds of appeal.
We granted the application and indicated that our reasons would be
part of the main judgment.
The
following are our reasons:
Adv
Tivadar,
for the first respondent, opposed the application on the basis that a
written application should have been made in terms of r39 of the
Supreme Court Rules.
Adv.
Mpofu's
application was made in terms of r41 which specifically provides for
an oral application to amend grounds of appeal. It states as follows:
“41.
Power
to allow amendment
The
court may upon application by notice or upon oral application by
counsel during the course of any hearing allow, upon such terms as it
may think fit to impose, amendment of the grounds of appeal or of any
pleadings or other document and may similarly permit a party to
appear or be represented notwithstanding any declaration in terms of
r50 to the effect that the party does not intend to appear or be
represented.”
It
is a primary rule of interpretation that a statute should be
construed within context.
Rule
39 does not override r41. It applies to applications in general.
The
opposition to the application was ill-conceived because oral
applications are allowed in terms of r41. We thus found the first
respondent's only basis for opposing the application to be without
merit and granted the application.
The
dispute in this matter arose from a contractual agreement in the form
of a bespoke housing offtake agreement between the appellant and the
first respondent in terms of which the respondent was to build 8,000
housing units for purchase by the appellant. The appellant paid a
deposit of US$16 million. The respondent thereafter cancelled the
agreement and claimed damages in the sum of US$56,842,364.00. The
dispute was referred to the arbitrator for arbitration. The
arbitrator awarded the first respondent damages in the amended sum of
US$30 million. The first respondent applied for the registration by
the High Court of the arbitral award. The appellant counter applied
for the setting aside of the award.
The
court a
quo
granted the first respondent's application for registration and
dismissed the appellant's counter application.
The
appellant appealed to this Court.
In
its amended first ground of appeal, the appellant submitted that the
first respondent did not attach to its application in the court a
quo
an authenticated arbitral award as required by Article 35(2) of the
Arbitration Act, [Chapter
7:15].
In
their submissions, counsel for the parties argued over the meaning of
the word 'authenticate'. Adv. Mpofu,
for the appellant, argued that the award issued by the arbitrator has
to be authenticated before it can be used for purposes of
registration. Adv. Tivadar
on the other hand, argued that the award is authenticated when the
arbitrator signs it before furnishing it to the parties.
In
our view, to authenticate means to confirm or verify that the
existing award is the one issued to the parties by the arbitrator.
Authentication does not take place on the signing of the award,
authentication is endorsed on the signed original award.
In
respect of the dismissal of the application for the setting aside of
the award, Adv, Mpofu
argued that the court a
quo
did not make a determination on the issue. He submitted that it is a
gross irregularity.
Adv.
Tivadar
referred us to pp.1117–1120 of the record. He submitted that the
court a
quo
determined the issue on those pages.
A
reading of those pages does not support his submissions because the
court a
quo
merely referred to the submissions by the parties and to the
arbitrator's findings without itself pronouncing its own decision
on that issue.
It
is trite that failure to determine an issue ventilated before the
court is a gross irregularity warranting the setting aside of a
court's decision.
In
the result; the decision of the court a
quo
in respect of registration of the award and dismissal of the
application to set aside the award has to be set aside and the matter
remitted to the court a
quo
before a different Judge for a hearing de
novo.
Accordingly
it is ordered as follows:
1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a
quo
be and is hereby set aside.
3.
The matter is remitted to the court a
quo
for hearing de
novo
before a different Judge.
UCHENA
JA : I
agree
CHATUKUTA
JA: I
agree
Mawere
Sibanda,
applicant's legal practitioners
Zigomo
Legal Practitioners,
1st
respondent's legal practitioners
The
Hon Peter Lloyd,
2nd
respondent's legal practitioners
