Dispute Resolution re: Approach, Governing Law, Penalty Stipulations and Contractual Consequences of Breach of Contract

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

Court Management re: Consolidation of Matters, Joinder of Actions, Fragmantation of Disputes and the Consolidation Order

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

Final Orders re: Approach iro Registration, Recognition & Enforcement of Foreign Judgments, Lex Causae and Lex Fori

GOWORA JA, in the case of Matthews v Craster International (Pvt) Ltd SC151-20, had the following to say...,.:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'...,."

Final Orders re: Writ of Execution iro Approach, Execution Powers, Ex Post Facto Legislation and Superannuated Orders

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

Final Orders re: Writ of Execution, Enforcement of Judgments iro Form and Nature of Order for Execution

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

Final Orders re: Composition of Bench iro Precedents, Stare Decisis, Disparate Facts & Effect of Ex Post Facto Legislation

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

At the hearing of the appeal, counsel for the appellant also sought to argue, that, the arbitral award at the centre of this dispute was unenforceable.

Counsel argued, that, the second respondent granted the principal relief and alternative relief which were not compatible with each other. She submitted further that both reliefs directed two different courses of action to be taken by the appellant, the first one being specific performance in terms of the contract, and the second requiring it to pay monies to "diverse third parties.”

The arbitral award reads as follows, in relevant part:

“38 Final Order

This is an order for specific performance made, whereby the respondent be and is hereby directed to supply the balance of 4,353=20mt at RTGS$1,135 per tonne (sic)

Alternatively, the Respondent is directed to pay the lowest or cheapest supplier of flour within the jurisdiction, the difference or shortfall from the contract price to the supplier on a monthly basis for the supply of 4,353=10mt of flour….,."

A proper interpretation of the above award does not support the appellant's contention that the relief granted by the second respondent was unenforceable.

In our view, the main and alternative reliefs are complementary, because, if the appellant is unable to supply the flour itself, it could do so in terms of the alternative relief.

There is merit in the first respondent's contention, that, the second respondent could not quantify the order for specific performance as the lowest or cheapest prices of flour could only be ascertained at the time of procurement of the flour and thus the main and alternative relief were complete and properly granted by the second respondent.

Intent or Animus Contrahendi re: Deemed, Implied, Tacit, Unsigned Agreements or Informal Contracts

In Magodora v Care International Zimbabwe SC24-14 PATEL JA had the following to say with regards to the principle of sanctity of contract…,:

"It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted - even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms."

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Approach

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

Pleadings re: Amendment to Pleadings, Summons, Declaration and Draft Orders iro Approach

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

Dispute Resolution re: Commercial Arbitration iro Approach, Proceedings, Registration and Execution of Arbitral Awards

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo.”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

At the hearing of the appeal, counsel for the appellant also sought to argue, that, the arbitral award at the centre of this dispute was unenforceable.

Counsel argued, that, the second respondent granted the principal relief and alternative relief which were not compatible with each other. She submitted further that both reliefs directed two different courses of action to be taken by the appellant, the first one being specific performance in terms of the contract, and the second requiring it to pay monies to "diverse third parties.”

The arbitral award reads as follows, in relevant part:

“38 Final Order

This is an order for specific performance made, whereby the respondent be and is hereby directed to supply the balance of 4,353=20mt at RTGS$1,135 per tonne (sic)

Alternatively, the Respondent is directed to pay the lowest or cheapest supplier of flour within the jurisdiction, the difference or shortfall from the contract price to the supplier on a monthly basis for the supply of 4,353=10mt of flour….,."

A proper interpretation of the above award does not support the appellant's contention that the relief granted by the second respondent was unenforceable.

In our view, the main and alternative reliefs are complementary, because, if the appellant is unable to supply the flour itself, it could do so in terms of the alternative relief.

There is merit in the first respondent's contention, that, the second respondent could not quantify the order for specific performance as the lowest or cheapest prices of flour could only be ascertained at the time of procurement of the flour and thus the main and alternative relief were complete and properly granted by the second respondent.

The fact that the enforcement of the award may entail the institution of contempt of court proceedings against the appellant is not a ground for refusing its registration.

The appellant is bound by the agreement it entered into with the first respondent in terms of the caveat subscriptor rule. Simply put, parties must exercise extreme caution in entering into and signing contracts. Consequently, a party to a contract who appends his or her signature to a document does so at his or her own peril.

The rationale for this rule was captured by RH CHRISTIE in his book Business Law in Zimbabwe, 1998, Juta & Co…, where the learned author says:

"The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract, and, if this principle were not upheld, any business enterprise would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule, is therefore that a party to a contract is bound by his signature whether or not he has read and understood the contract…,."

It is common cause, that, the appellant freely entered into the agreement that it now seeks to attack at this stage.

It cannot do so.

In Magodora v Care International Zimbabwe SC24-14 PATEL JA had the following to say with regards to the principle of sanctity of contract…,:

"It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted - even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms."

The remarks in Magodora v Care International Zimbabwe SC24-14 above are entirely apposite to the matter at hand. It is not open to this Court to excuse the appellant from the consequences of its actions in voluntarily and freely signing the agreement.

We find that the decision of the court a quo, to recognise the second respondent's award, cannot be faulted.

In casu, the appellant did not provide a lawful basis, in terms of Article 36 of the Model Law, upon which it was resisting the registration of the arbitral award in the court a quo. The appellant, rather, argues that the award is "incomplete and unenforceable” as it does not have a specific sum quantified by the second respondent in granting the specific performance.

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent. It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

DISPOSITION

In the result, the following order is made:

"The appeal be and is hereby dismissed with costs."

Final Orders re: Nature, Amendment, Variation, Rescission and the Final and Conclusive Rule iro Quasi Judicial

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo.”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

At the hearing of the appeal, counsel for the appellant also sought to argue, that, the arbitral award at the centre of this dispute was unenforceable.

Counsel argued, that, the second respondent granted the principal relief and alternative relief which were not compatible with each other. She submitted further that both reliefs directed two different courses of action to be taken by the appellant, the first one being specific performance in terms of the contract, and the second requiring it to pay monies to "diverse third parties.”

The arbitral award reads as follows, in relevant part:

“38 Final Order

This is an order for specific performance made, whereby the respondent be and is hereby directed to supply the balance of 4,353=20mt at RTGS$1,135 per tonne (sic)

Alternatively, the Respondent is directed to pay the lowest or cheapest supplier of flour within the jurisdiction, the difference or shortfall from the contract price to the supplier on a monthly basis for the supply of 4,353=10mt of flour….,."

A proper interpretation of the above award does not support the appellant's contention that the relief granted by the second respondent was unenforceable.

In our view, the main and alternative reliefs are complementary, because, if the appellant is unable to supply the flour itself, it could do so in terms of the alternative relief.

There is merit in the first respondent's contention, that, the second respondent could not quantify the order for specific performance as the lowest or cheapest prices of flour could only be ascertained at the time of procurement of the flour and thus the main and alternative relief were complete and properly granted by the second respondent.

The fact that the enforcement of the award may entail the institution of contempt of court proceedings against the appellant is not a ground for refusing its registration.

The appellant is bound by the agreement it entered into with the first respondent in terms of the caveat subscriptor rule. Simply put, parties must exercise extreme caution in entering into and signing contracts. Consequently, a party to a contract who appends his or her signature to a document does so at his or her own peril.

The rationale for this rule was captured by RH CHRISTIE in his book Business Law in Zimbabwe, 1998, Juta & Co…, where the learned author says:

"The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract, and, if this principle were not upheld, any business enterprise would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule, is therefore that a party to a contract is bound by his signature whether or not he has read and understood the contract…,."

It is common cause, that, the appellant freely entered into the agreement that it now seeks to attack at this stage.

It cannot do so.

In Magodora v Care International Zimbabwe SC24-14 PATEL JA had the following to say with regards to the principle of sanctity of contract…,:

"It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted - even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms."

The remarks in Magodora v Care International Zimbabwe SC24-14 above are entirely apposite to the matter at hand. It is not open to this Court to excuse the appellant from the consequences of its actions in voluntarily and freely signing the agreement.

We find that the decision of the court a quo, to recognise the second respondent's award, cannot be faulted.

In casu, the appellant did not provide a lawful basis, in terms of Article 36 of the Model Law, upon which it was resisting the registration of the arbitral award in the court a quo. The appellant, rather, argues that the award is "incomplete and unenforceable” as it does not have a specific sum quantified by the second respondent in granting the specific performance.

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent. It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

DISPOSITION

In the result, the following order is made:

"The appeal be and is hereby dismissed with costs."

Specific Performance re: Approach, Impossibility of Performance and the Exceptio Non Adimpleti Contractus

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo.”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

At the hearing of the appeal, counsel for the appellant also sought to argue, that, the arbitral award at the centre of this dispute was unenforceable.

Counsel argued, that, the second respondent granted the principal relief and alternative relief which were not compatible with each other. She submitted further that both reliefs directed two different courses of action to be taken by the appellant, the first one being specific performance in terms of the contract, and the second requiring it to pay monies to "diverse third parties.”

The arbitral award reads as follows, in relevant part:

“38 Final Order

This is an order for specific performance made, whereby the respondent be and is hereby directed to supply the balance of 4,353=20mt at RTGS$1,135 per tonne (sic)

Alternatively, the Respondent is directed to pay the lowest or cheapest supplier of flour within the jurisdiction, the difference or shortfall from the contract price to the supplier on a monthly basis for the supply of 4,353=10mt of flour….,."

A proper interpretation of the above award does not support the appellant's contention that the relief granted by the second respondent was unenforceable.

In our view, the main and alternative reliefs are complementary, because, if the appellant is unable to supply the flour itself, it could do so in terms of the alternative relief.

There is merit in the first respondent's contention, that, the second respondent could not quantify the order for specific performance as the lowest or cheapest prices of flour could only be ascertained at the time of procurement of the flour and thus the main and alternative relief were complete and properly granted by the second respondent.

The fact that the enforcement of the award may entail the institution of contempt of court proceedings against the appellant is not a ground for refusing its registration.

The appellant is bound by the agreement it entered into with the first respondent in terms of the caveat subscriptor rule. Simply put, parties must exercise extreme caution in entering into and signing contracts. Consequently, a party to a contract who appends his or her signature to a document does so at his or her own peril.

The rationale for this rule was captured by RH CHRISTIE in his book Business Law in Zimbabwe, 1998, Juta & Co…, where the learned author says:

"The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract, and, if this principle were not upheld, any business enterprise would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule, is therefore that a party to a contract is bound by his signature whether or not he has read and understood the contract…,."

It is common cause, that, the appellant freely entered into the agreement that it now seeks to attack at this stage.

It cannot do so.

In Magodora v Care International Zimbabwe SC24-14 PATEL JA had the following to say with regards to the principle of sanctity of contract…,:

"It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted - even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms."

The remarks in Magodora v Care International Zimbabwe SC24-14 above are entirely apposite to the matter at hand. It is not open to this Court to excuse the appellant from the consequences of its actions in voluntarily and freely signing the agreement.

We find that the decision of the court a quo, to recognise the second respondent's award, cannot be faulted.

In casu, the appellant did not provide a lawful basis, in terms of Article 36 of the Model Law, upon which it was resisting the registration of the arbitral award in the court a quo. The appellant, rather, argues that the award is "incomplete and unenforceable” as it does not have a specific sum quantified by the second respondent in granting the specific performance.

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent. It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

DISPOSITION

In the result, the following order is made:

"The appeal be and is hereby dismissed with costs."

Administrative Law re: Administrative Directive, Doctrine of Legality and the Principle Against Doubtful Penalization

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo.”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

At the hearing of the appeal, counsel for the appellant also sought to argue, that, the arbitral award at the centre of this dispute was unenforceable.

Counsel argued, that, the second respondent granted the principal relief and alternative relief which were not compatible with each other. She submitted further that both reliefs directed two different courses of action to be taken by the appellant, the first one being specific performance in terms of the contract, and the second requiring it to pay monies to "diverse third parties.”

The arbitral award reads as follows, in relevant part:

“38 Final Order

This is an order for specific performance made, whereby the respondent be and is hereby directed to supply the balance of 4,353=20mt at RTGS$1,135 per tonne (sic)

Alternatively, the Respondent is directed to pay the lowest or cheapest supplier of flour within the jurisdiction, the difference or shortfall from the contract price to the supplier on a monthly basis for the supply of 4,353=10mt of flour….,."

A proper interpretation of the above award does not support the appellant's contention that the relief granted by the second respondent was unenforceable.

In our view, the main and alternative reliefs are complementary, because, if the appellant is unable to supply the flour itself, it could do so in terms of the alternative relief.

There is merit in the first respondent's contention, that, the second respondent could not quantify the order for specific performance as the lowest or cheapest prices of flour could only be ascertained at the time of procurement of the flour and thus the main and alternative relief were complete and properly granted by the second respondent.

The fact that the enforcement of the award may entail the institution of contempt of court proceedings against the appellant is not a ground for refusing its registration.

The appellant is bound by the agreement it entered into with the first respondent in terms of the caveat subscriptor rule. Simply put, parties must exercise extreme caution in entering into and signing contracts. Consequently, a party to a contract who appends his or her signature to a document does so at his or her own peril.

The rationale for this rule was captured by RH CHRISTIE in his book Business Law in Zimbabwe, 1998, Juta & Co…, where the learned author says:

"The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract, and, if this principle were not upheld, any business enterprise would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule, is therefore that a party to a contract is bound by his signature whether or not he has read and understood the contract…,."

It is common cause, that, the appellant freely entered into the agreement that it now seeks to attack at this stage.

It cannot do so.

In Magodora v Care International Zimbabwe SC24-14 PATEL JA had the following to say with regards to the principle of sanctity of contract…,:

"It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted - even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms."

The remarks in Magodora v Care International Zimbabwe SC24-14 above are entirely apposite to the matter at hand. It is not open to this Court to excuse the appellant from the consequences of its actions in voluntarily and freely signing the agreement.

We find that the decision of the court a quo, to recognise the second respondent's award, cannot be faulted.

In casu, the appellant did not provide a lawful basis, in terms of Article 36 of the Model Law, upon which it was resisting the registration of the arbitral award in the court a quo. The appellant, rather, argues that the award is "incomplete and unenforceable” as it does not have a specific sum quantified by the second respondent in granting the specific performance.

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent. It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

DISPOSITION

In the result, the following order is made:

"The appeal be and is hereby dismissed with costs."

Termination of Contracts and Notice of Cancellation re: Approach iro Public Contracts

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo.”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

At the hearing of the appeal, counsel for the appellant also sought to argue, that, the arbitral award at the centre of this dispute was unenforceable.

Counsel argued, that, the second respondent granted the principal relief and alternative relief which were not compatible with each other. She submitted further that both reliefs directed two different courses of action to be taken by the appellant, the first one being specific performance in terms of the contract, and the second requiring it to pay monies to "diverse third parties.”

The arbitral award reads as follows, in relevant part:

“38 Final Order

This is an order for specific performance made, whereby the respondent be and is hereby directed to supply the balance of 4,353=20mt at RTGS$1,135 per tonne (sic)

Alternatively, the Respondent is directed to pay the lowest or cheapest supplier of flour within the jurisdiction, the difference or shortfall from the contract price to the supplier on a monthly basis for the supply of 4,353=10mt of flour….,."

A proper interpretation of the above award does not support the appellant's contention that the relief granted by the second respondent was unenforceable.

In our view, the main and alternative reliefs are complementary, because, if the appellant is unable to supply the flour itself, it could do so in terms of the alternative relief.

There is merit in the first respondent's contention, that, the second respondent could not quantify the order for specific performance as the lowest or cheapest prices of flour could only be ascertained at the time of procurement of the flour and thus the main and alternative relief were complete and properly granted by the second respondent.

The fact that the enforcement of the award may entail the institution of contempt of court proceedings against the appellant is not a ground for refusing its registration.

The appellant is bound by the agreement it entered into with the first respondent in terms of the caveat subscriptor rule. Simply put, parties must exercise extreme caution in entering into and signing contracts. Consequently, a party to a contract who appends his or her signature to a document does so at his or her own peril.

The rationale for this rule was captured by RH CHRISTIE in his book Business Law in Zimbabwe, 1998, Juta & Co…, where the learned author says:

"The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract, and, if this principle were not upheld, any business enterprise would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule, is therefore that a party to a contract is bound by his signature whether or not he has read and understood the contract…,."

It is common cause, that, the appellant freely entered into the agreement that it now seeks to attack at this stage.

It cannot do so.

In Magodora v Care International Zimbabwe SC24-14 PATEL JA had the following to say with regards to the principle of sanctity of contract…,:

"It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted - even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms."

The remarks in Magodora v Care International Zimbabwe SC24-14 above are entirely apposite to the matter at hand. It is not open to this Court to excuse the appellant from the consequences of its actions in voluntarily and freely signing the agreement.

We find that the decision of the court a quo, to recognise the second respondent's award, cannot be faulted.

In casu, the appellant did not provide a lawful basis, in terms of Article 36 of the Model Law, upon which it was resisting the registration of the arbitral award in the court a quo. The appellant, rather, argues that the award is "incomplete and unenforceable” as it does not have a specific sum quantified by the second respondent in granting the specific performance.

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent. It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

DISPOSITION

In the result, the following order is made:

"The appeal be and is hereby dismissed with costs."

Consensus Ad Idem re: Approach iro Privity of Contract ito Public Contracts

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo.”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

At the hearing of the appeal, counsel for the appellant also sought to argue, that, the arbitral award at the centre of this dispute was unenforceable.

Counsel argued, that, the second respondent granted the principal relief and alternative relief which were not compatible with each other. She submitted further that both reliefs directed two different courses of action to be taken by the appellant, the first one being specific performance in terms of the contract, and the second requiring it to pay monies to "diverse third parties.”

The arbitral award reads as follows, in relevant part:

“38 Final Order

This is an order for specific performance made, whereby the respondent be and is hereby directed to supply the balance of 4,353=20mt at RTGS$1,135 per tonne (sic)

Alternatively, the Respondent is directed to pay the lowest or cheapest supplier of flour within the jurisdiction, the difference or shortfall from the contract price to the supplier on a monthly basis for the supply of 4,353=10mt of flour….,."

A proper interpretation of the above award does not support the appellant's contention that the relief granted by the second respondent was unenforceable.

In our view, the main and alternative reliefs are complementary, because, if the appellant is unable to supply the flour itself, it could do so in terms of the alternative relief.

There is merit in the first respondent's contention, that, the second respondent could not quantify the order for specific performance as the lowest or cheapest prices of flour could only be ascertained at the time of procurement of the flour and thus the main and alternative relief were complete and properly granted by the second respondent.

The fact that the enforcement of the award may entail the institution of contempt of court proceedings against the appellant is not a ground for refusing its registration.

The appellant is bound by the agreement it entered into with the first respondent in terms of the caveat subscriptor rule. Simply put, parties must exercise extreme caution in entering into and signing contracts. Consequently, a party to a contract who appends his or her signature to a document does so at his or her own peril.

The rationale for this rule was captured by RH CHRISTIE in his book Business Law in Zimbabwe, 1998, Juta & Co…, where the learned author says:

"The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract, and, if this principle were not upheld, any business enterprise would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule, is therefore that a party to a contract is bound by his signature whether or not he has read and understood the contract…,."

It is common cause, that, the appellant freely entered into the agreement that it now seeks to attack at this stage.

It cannot do so.

In Magodora v Care International Zimbabwe SC24-14 PATEL JA had the following to say with regards to the principle of sanctity of contract…,:

"It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted - even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms."

The remarks in Magodora v Care International Zimbabwe SC24-14 above are entirely apposite to the matter at hand. It is not open to this Court to excuse the appellant from the consequences of its actions in voluntarily and freely signing the agreement.

We find that the decision of the court a quo, to recognise the second respondent's award, cannot be faulted.

In casu, the appellant did not provide a lawful basis, in terms of Article 36 of the Model Law, upon which it was resisting the registration of the arbitral award in the court a quo. The appellant, rather, argues that the award is "incomplete and unenforceable” as it does not have a specific sum quantified by the second respondent in granting the specific performance.

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent. It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

DISPOSITION

In the result, the following order is made:

"The appeal be and is hereby dismissed with costs."

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Belated Pleadings ito Approach

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent.

It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by Court and Doctrine of Notice iro Approach

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent.

It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

Consensus Ad Idem re: Approach iro Foundation, Sanctity, Privity, Retrospectivity and Judicial or Statutory Interference

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo.”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

At the hearing of the appeal, counsel for the appellant also sought to argue, that, the arbitral award at the centre of this dispute was unenforceable.

Counsel argued, that, the second respondent granted the principal relief and alternative relief which were not compatible with each other. She submitted further that both reliefs directed two different courses of action to be taken by the appellant, the first one being specific performance in terms of the contract, and the second requiring it to pay monies to "diverse third parties.”

The arbitral award reads as follows, in relevant part:

“38 Final Order

This is an order for specific performance made, whereby the respondent be and is hereby directed to supply the balance of 4,353=20mt at RTGS$1,135 per tonne (sic)

Alternatively, the Respondent is directed to pay the lowest or cheapest supplier of flour within the jurisdiction, the difference or shortfall from the contract price to the supplier on a monthly basis for the supply of 4,353=10mt of flour….,."

A proper interpretation of the above award does not support the appellant's contention that the relief granted by the second respondent was unenforceable.

In our view, the main and alternative reliefs are complementary, because, if the appellant is unable to supply the flour itself, it could do so in terms of the alternative relief.

There is merit in the first respondent's contention, that, the second respondent could not quantify the order for specific performance as the lowest or cheapest prices of flour could only be ascertained at the time of procurement of the flour and thus the main and alternative relief were complete and properly granted by the second respondent.

The fact that the enforcement of the award may entail the institution of contempt of court proceedings against the appellant is not a ground for refusing its registration.

The appellant is bound by the agreement it entered into with the first respondent in terms of the caveat subscriptor rule. Simply put, parties must exercise extreme caution in entering into and signing contracts. Consequently, a party to a contract who appends his or her signature to a document does so at his or her own peril.

The rationale for this rule was captured by RH CHRISTIE in his book Business Law in Zimbabwe, 1998, Juta & Co…, where the learned author says:

"The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract, and, if this principle were not upheld, any business enterprise would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule, is therefore that a party to a contract is bound by his signature whether or not he has read and understood the contract…,."

It is common cause, that, the appellant freely entered into the agreement that it now seeks to attack at this stage.

It cannot do so.

In Magodora v Care International Zimbabwe SC24-14 PATEL JA had the following to say with regards to the principle of sanctity of contract…,:

"It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted - even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms."

The remarks in Magodora v Care International Zimbabwe SC24-14 above are entirely apposite to the matter at hand. It is not open to this Court to excuse the appellant from the consequences of its actions in voluntarily and freely signing the agreement.

We find that the decision of the court a quo, to recognise the second respondent's award, cannot be faulted.

In casu, the appellant did not provide a lawful basis, in terms of Article 36 of the Model Law, upon which it was resisting the registration of the arbitral award in the court a quo. The appellant, rather, argues that the award is "incomplete and unenforceable” as it does not have a specific sum quantified by the second respondent in granting the specific performance.

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent. It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

DISPOSITION

In the result, the following order is made:

"The appeal be and is hereby dismissed with costs."

Documentary Evidence re: Caveat Subscriptor Rule and Recorded Intent: Unsigned Documents and Active Intent iro Approach

This is an appeal against part of the judgment of the High Court (“the court a quo") which granted an application for the registration of an arbitral award.

FACTUAL BACKGROUND

On 11 November 2016, the appellant and the first respondent entered into an agreement in terms of which they agreed that the appellant would sell and supply to the first respondent 6,000 metric tonnes of biscuit making flour. The flour was to be sold at a price of USD$450 per metric tonne. The purchase price was payable within sixty days of the monthly statement for all flour delivered. In the event of a dispute arising between the parties, it was also agreed that such dispute would be resolved through arbitration and that the decision of the arbitrator would be final and binding on both parties.

Pursuant to the agreement, the appellant supplied the first respondent with 1,379 metric tonnes of flour as at 16 April 2019, leaving a balance of 4,620 metric tonnes. Thereafter, the parties signed an addendum to the agreement varying the price of the flour from USD$450 per metric tonne to RTGS1,135 per metric tonne.

Thereafter, the appellant only supplied 267 metric tonnes leaving a balance of 4,353 metric tonnes.

On 13 June 2019, the appellant wrote to the first respondent informing it that it could no longer continue to supply the flour in terms of the agreement due to "force majeure." It was averred, that, the Government of Zimbabwe, being the owner of the flour, had directed that all flour be supplied exclusively to bakers of bread.

Consequently, a dispute arose between the parties, and, in terms of clause 6 of the agreement, it was submitted to arbitration before the second respondent.

The first respondent prayed for an order of specific performance for the supply of the outstanding 4,353 metric tonnes at the agreed purchase price. The appellant persisted with its contention, that, it could not perform its obligation to supply the biscuit flour to the first respondent owing to the aforementioned Government directive which allegedly amounted to "force majeure".

The appellant further averred, that, it was however willing to supply the outstanding flour - but on different terms as regards quantities and pricing.

In its "supplementary statement of defence" the appellant sought to argue the defence of severability, more particularly, that, the purchase price had been eroded by inflation so as to render it unreasonable and unequitable thus the specific clause relating to the purchase price had to be severed from the rest of the contract.

The second respondent granted the first respondent's claim for specific performance.

Following that arbitral award, the appellant filed an application in the court a quo to set aside the arbitral award in terms of Article 34(2)(b)(ii) of the Model Law in the Arbitration Act [Chapter 7:15] (“the Model Law").

Simultaneously, the first respondent filed an application for the registration of the award in the same court in terms of Article 36 of the Model Law in the Arbitration Act.

The matters were consolidated by consent of the parties.

The court a quo noted, that, the appellant was challenging the registration of the award on the basis that it was not sounding in money and thus could not be registered because it was incomplete.

The court found, that, the ground was devoid of merit as Article 36 of the Model Law in the Arbitration Act does not list the fact that an award is not sounding in money as one of the grounds upon which a court may refuse to recognise and register an arbitral award.

In the result, the court granted the application for registration of the arbitral award. It dismissed the application for the setting aside of the same award.

Dissatisfied, the appellant filed the present appeal on the following ground:

“The court a quo erred and misdirected itself on the law by registering an arbitral award that was incomplete, and, in particular, it was not sounding in money and not enforceable."…,.

ISSUE

The crisp issue for determination is: whether or not the court a quo was wrong in granting the application for the registration of the arbitral award.

THE FACTS AND THE LAW

On appeal, it is the appellant's argument that the court a quo erred in finding that an arbitral award which does not sound in money could be registered. It is averred that such an order is unenforceable.

The case of Matthews v Craster International (Pvt) Ltd SC151-20 is pertinent in this regard.

In dealing with the issue whether or not the High Court was correct in declining to register an award made under the Model Law in the Arbitration Act, which did not sound in money, GOWORA JA had the following to say at p16 of the cyclostyled judgment:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'

Suffice it to state, that, the matter proceeded to the High Court for the recognition of an award under Article 35 of the Model Law.

Refusal for the recognition of the award can only be premised on what the law permitting such recognition provides for.

The court a quo was wrong to find that an arbitral award under the Model Law must sound in money for purposes of recognition. The law does not require it.

In any event, awards under the Model Law arise under a myriad of agreements and may take the form of orders ad per cuniam solvendum or ad factum praestandum. For these reasons, the dismissal of the application, premised on a reading of section 98(14), is, in my view, a misdirection on the part of the court a quo.”.…,.

In casu, it is common cause that the arbitral award sought to be registered is not an award made under the Labour Act [Chapter 28:01], rather, it is one made in terms of the Model Law in the Arbitration Act [Chapter 7:15].

It is now settled, that, an award under the Model Law which does not sound in money is capable of registration and enforcement.

As such, the appellant's argument to the contrary is without merit and must be dismissed.

At the hearing of the appeal, counsel for the appellant also sought to argue, that, the arbitral award at the centre of this dispute was unenforceable.

Counsel argued, that, the second respondent granted the principal relief and alternative relief which were not compatible with each other. She submitted further that both reliefs directed two different courses of action to be taken by the appellant, the first one being specific performance in terms of the contract, and the second requiring it to pay monies to "diverse third parties.”

The arbitral award reads as follows, in relevant part:

“38 Final Order

This is an order for specific performance made, whereby the respondent be and is hereby directed to supply the balance of 4,353=20mt at RTGS$1,135 per tonne (sic)

Alternatively, the Respondent is directed to pay the lowest or cheapest supplier of flour within the jurisdiction, the difference or shortfall from the contract price to the supplier on a monthly basis for the supply of 4,353=10mt of flour….,."

A proper interpretation of the above award does not support the appellant's contention that the relief granted by the second respondent was unenforceable.

In our view, the main and alternative reliefs are complementary, because, if the appellant is unable to supply the flour itself, it could do so in terms of the alternative relief.

There is merit in the first respondent's contention, that, the second respondent could not quantify the order for specific performance as the lowest or cheapest prices of flour could only be ascertained at the time of procurement of the flour and thus the main and alternative relief were complete and properly granted by the second respondent.

The fact that the enforcement of the award may entail the institution of contempt of court proceedings against the appellant is not a ground for refusing its registration.

The appellant is bound by the agreement it entered into with the first respondent in terms of the caveat subscriptor rule. Simply put, parties must exercise extreme caution in entering into and signing contracts. Consequently, a party to a contract who appends his or her signature to a document does so at his or her own peril.

The rationale for this rule was captured by RH CHRISTIE in his book Business Law in Zimbabwe, 1998, Juta & Co…, where the learned author says:

"The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract, and, if this principle were not upheld, any business enterprise would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule, is therefore that a party to a contract is bound by his signature whether or not he has read and understood the contract…,."

It is common cause, that, the appellant freely entered into the agreement that it now seeks to attack at this stage.

It cannot do so.

In Magodora v Care International Zimbabwe SC24-14 PATEL JA had the following to say with regards to the principle of sanctity of contract…,:

"It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted - even if they are shown to be onerous or oppressive. This is so as a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms."

The remarks in Magodora v Care International Zimbabwe SC24-14 above are entirely apposite to the matter at hand. It is not open to this Court to excuse the appellant from the consequences of its actions in voluntarily and freely signing the agreement.

We find that the decision of the court a quo, to recognise the second respondent's award, cannot be faulted.

In casu, the appellant did not provide a lawful basis, in terms of Article 36 of the Model Law, upon which it was resisting the registration of the arbitral award in the court a quo. The appellant, rather, argues that the award is "incomplete and unenforceable” as it does not have a specific sum quantified by the second respondent in granting the specific performance.

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent. It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

DISPOSITION

In the result, the following order is made:

"The appeal be and is hereby dismissed with costs."

Pleadings re: Belated Pleadings and Matters Raised Mero Motu by the Court iro Pleading from the Bar

It also bears mention, that, at the hearing of the appeal, after full argument from both parties, counsel for the appellant sought to amend, from the bar, the sole ground of appeal in this matter.

This came after the realisation that Matthews v Craster International (Pvt) Ltd SC151-20, which counsel was not aware of, effectively destroyed the appellant's argument that an arbitral award that does not sound in money is not registrable.

Counsel sought to amend the ground so as to sever that part of the ground of appeal.

Rule 44(3) of the Supreme Court Rules 2018 allows for the amendment of grounds of appeal, on application, before the hearing or at the hearing by notice of amendment duly served on the respondent.

In casu, it cannot be gainsaid that the appellant's application to amend the ground of appeal was not only late in the proceedings but was also made without notice to the respondent.

It clearly does not comply with the Rules and seems to have been a last ditch attempt by the appellant to salvage its un-meritorious appeal.

Final Orders re: Approach iro Handing Down and Form of Judgments, Formation of Ratio Decidendi and Obiter Issues

GOWORA JA, in the case of Matthews v Craster International (Pvt) Ltd SC151-20, had the following to say...,.:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'...,."

Jurisdiction re: Monetary, Cause of Action or Subject Matter

GOWORA JA, in the case of Matthews v Craster International (Pvt) Ltd SC151-20, had the following to say...,.:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'...,."

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SC30-21 - GRAIN MARKETING BOARD vs ARENEL (PVT) LTD and GORDON GEDDES N.O.

Dispute Resolution re: Approach, Governing Law, Penalty Stipulations and Contractual Consequences of Breach of Contract

Court Management re: Consolidation of Matters, Joinder of Actions, Fragmantation of Disputes and the Consolidation Order

Final Orders re: Approach iro Registration, Recognition & Enforcement of Foreign Judgments, Lex Causae and Lex Fori

Final Orders re: Writ of Execution iro Approach, Execution Powers, Ex Post Facto Legislation and Superannuated Orders

Final Orders re: Writ of Execution, Enforcement of Judgments iro Form and Nature of Order for Execution

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Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Belated Pleadings ito Approach

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Consensus Ad Idem re: Approach iro Foundation, Sanctity, Privity, Retrospectivity and Judicial or Statutory Interference

Documentary Evidence re: Caveat Subscriptor Rule and Recorded Intent: Unsigned Documents and Active Intent iro Approach

Pleadings re: Belated Pleadings and Matters Raised Mero Motu by the Court iro Pleading from the Bar

Final Orders re: Approach iro Handing Down and Form of Judgments, Formation of Ratio Decidendi and Obiter Issues

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SC30-21 - GRAIN MARKETING BOARD vs ARENEL (PVT) LTD and GORDON GEDDES N.O.

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