On 24 July 2013, I granted the following interim relief
in favour of the applicant:
“That pending determination of the dispute between the
applicant and the 1st respondent by the arbitrator, the applicant is
granted the following relief:
1. The 1st respondent be and is hereby
interdicted from using, selling, transferring, disposing or dealing in any
other way with the 32 metric tonnes of maize held at Mash Co Premises, Mazowe
Road, Centenary.
2. The Deputy Sheriff be and is hereby directed to place
under attachment the said 32 metric tonnes of maize and hold the same under his
custody at Mash Co Premises, Mazowe Road, Centenary pending finalization of
arbitration proceedings between the parties.
3. The 2nd respondent be and is hereby
interdicted from paying the sum of US$80,810= to the 1st respondent
but that such amount, when due, shall be paid to the Sheriff of the High Court
who shall hold the money in trust pending finalization of the arbitration
proceedings between the applicant and the 2nd respondent.”
The above provisional order followed an urgent chamber
application by the applicant....,.
The applicant's claim was predicated on Article 9 of the
Model Law on International Commercial Arbitration which is a Schedule to the
Arbitration Act [Chapter 7:15].
But, in its Notice of Opposition, the
respondent argued as follows:
“…., Article 9 of the Arbitration Act certainly does not
confer jurisdiction on the Court to make an ordinary debt matter urgent, or to
interfere with normal commercial activity between corporates or of the First
Respondent or to make another contract for the parties specifically on how the
disputes were to be resolved, how one party is to recover on the contract and
also the method of recovery such as barring receipt of payment, barring trade,
attachment of stocks in trade in the absence of any court order and, in my
view, supplementing the arbitration procedure that was agreed to by the parties
to be final.”
I found the first respondent's meandering averment above
to be plainly without merit and quite absurd. Article 9 of the Arbitration Act
[Chapter 7:15] reads as follows:
“ARTICLE 9
“Arbitration agreement and interim measures
by court
[1] It
is not incompatible with an arbitration agreement for a party to request,
before or during arbitral proceedings, from the High Court
an interim measure of protection and subject to
paragraphs (2) and (3) of this article, for the High Court
to grant such measure.
[2] Upon a request in terms of paragraph (1) of this
article, the High Court may grant –
[a] An order for the preservation, interim
custody or sale of any goods which are the subject-matter of the dispute;
[b] An order securing the amount in dispute or the costs
of the arbitral proceedings; or
[c] An interdict or other interim remedy;
or
[d] Any other order to ensure that any
award which may be made in the arbitral proceedings is not rendered ineffectual.
[3] The High Court shall not
grant an order or interdict in terms of paragraph (1) of this article unless –
[a] The arbitral tribunal has not yet been
appointed and the matter is urgent; or ….,.
[b] The arbitral tribunal is not competent to grant the
order or interdict; or
[c] The urgency of the matter makes it impracticable to
seek such order or interdict from the arbitral tribunal;
and the High Court shall not
grant any such order or interdict where the arbitral tribunal, being competent
to grant the order or interdict, has determined the application therefore.
[4] The decision of the High Court,
upon any request made in terms of paragraph (1) of this article, shall not be
subject to appeal.”
It is plain that in terms of both the common law and the
Arbitration Act [Chapter 7:15] this court can grant such an interdict. Article
9 of the Arbitration Act [Chapter 7:15] could not have been clearer.
I was satisfied that the applicant had fulfilled the
conditions under which the interdict could be granted. Among other things….,
the applicant argued strongly that the first respondent had no other assets
apart from the maize. During argument, I expressly invited counsel for the
first respondent to address the point.
He said nothing of substance.
