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Final Orders re: Nature, Amendment, Variation, Rescission and the Final and Conclusive Rule iro Arbitral Awards

HH43-09 : ZIMBABWE OPEN UNIVERSITY vs DR. O MAZOMBWE
Ruled By: HLATSHWAYO J

The applicant seeks an order setting aside the registration of an arbitral award granted in favour of the respondent. The award was submitted for registration at the High Court in terms of the provisions of the Labour Act [Chapter 28:01] and was duly registered on 25 February 2008. The applicant submits that the registration of the award ...
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HH68-09 : RONALD MUCHAKA vs DONALD ZHANJE and THE HONOURABLE JUDGE GEORGE SMITH (RETIRED) N.O.
Ruled By: PATEL J

The background to this case is as follows. The applicant and the first respondent ran a real estate business in partnership for approximately 2 to 3 years until a dispute arose between them. The applicant then instituted proceedings in this Court in Case No. HC2521/05. In order to expedite the resolution of the matter, the dispute was ...
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Appealed
HH200-12 : GOLD DRIVEN INVESTMENTS vs TELONE (PVT) LTD AND A. R. GUBBAY N.O.
Ruled By: CHIWESHE JP

The applicant seeks an order setting aside an arbitral award handed down by the second respondent on 16 August 2010. The applicant avers that the award is in conflict with the public policy of Zimbabwe in the following material respects:(a) “The Arbitrator made a determination on the issues not placed before him for adjudication.”(b) “A breach ...
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SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

This is an appeal against a judgment of the Labour Court which set aside an arbitral award made in favour of the appellant.The background facts may be tabulated conveniently as follows:1. The appellant (“Vimbai”) was employed by the respondent (“the Hotel”) as a supervisor.2. On 18 January 2005 the Hotel ...
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SC09-13 : GOLD DRIVEN INVESTMENTS (PRIVATE) LIMITED vs TELONE (PVT) LIMITED and A.R. GUBBAY N.O.
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

This is an appeal against the judgment of the High Court dismissing an application for review of an arbitral award granted by the second respondent (“the arbitrator”) in favour of the first respondent. There are two grounds of appeal. (i) The first is that the court a quo misdirected itself in failing to uphold the contention that the ...
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SC13-13 : BEITBRIDGE BULAWAYO RAILWAY COMPANY vs ZIMBABWE AMALGAMATED RAILWAY UNION and ARBITRATOR GLADYS MPEMBA
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

At the conclusion of submissions for both parties, the court allowed the appeal with costs. It was indicated at the time that reasons for the decision would follow in due course. These are they. The appellant is a company registered in terms of the laws of Zimbabwe and operating a railway transportation business. The first respondent ...
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SC30-13 : ARCHIPELAGO (PVT) LTD vs LOCAL AUTHORITIES PENSION FUND and ADDINGTON CHINAKE
Ruled By: MALABA DCJ, ZIYAMBI JA and PATEL AJA

This is an appeal against the decision of the High Court (HH147-12) handed down on 4 April 2012. The appeal was dismissed at the end of the hearing of the matter. The reasons for that dismissal are as follows. BACKGROUND Since 1978, the appellant has occupied the basement at the first respondent's premises in Linquenda House, Harare, ...
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HH155-10 : BLESSMORE CHANAKIRA vs TAWANDA MAPFUMO and W.R. GABRAITH
Ruled By: CHIWESHE JP

On 29 October 2008 the applicant and the first respondent entered into a written agreement in terms of which the applicant advanced to the first respondent the sum of one hundred thousand United States dollars (the equivalent then of two hundred Old Mutual Ordinary Shares listed on the Stock Exchange). As a return on this ...
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Appealed
SC11-15 : PERUKE INVESTMENTS (PRIVATE) LIMITED vs WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR. JUSTICE (RETIRED) A.R. GUBBAY SC
Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

This is an appeal against the decision of the High Court setting aside an arbitral award rendered by the second respondent on 25 February 2011. The grounds of appeal relate to the period allowed for contesting an arbitral award and the substantive correctness of the decision of the court a quo.
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HH07-13 : ZIMBABWE TEXTILE MANUFACTURERS ASSOCIATION vs ZIMBABWE TEXTILE WORKERS UNION and DR. GODFREY KANYENZE
Ruled By: MTSHIYA J

In this application the following relief is sought;- “It is ordered that:- 1. The award of quantification of damages made by the second respondent on 28 October 2011 be and is hereby set aside. 2. The first respondent pay the costs of suit.” The background to this application is that in August 2011 the applicant and the first respondent reached a ...
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HH178-14 : WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED vs PERUKE INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR JUSTICE (Ret) A. R. GUBBAY SC
Ruled By: ZHOU J

This is an application in terms of Article 34(2)(b)(ii) of the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award rendered by the second respondent in favour of the first respondent. The application is opposed by the first respondent.
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HH124-11 : DR BOZENA DUDKA and ALLAN RUSSELL and FAIR COAT INVESTMENTS (PVT) LIMITED and JOHN MUKONO vs CHENI INVESTMENTS (PVT) LIMITED and IAN HAWTHORNE and PERVAZ KHAN and OTHERS
Ruled By: MAKONI J

It is common cause that on 23 October 2008, the arbitrator, granted an interim arbitral award which, inter alia, interdicted the transfer of the property and that the order be served on the Registrar of Deeds. The order was served on the same day. Although the award was made in respect of the second ...
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SC11-13 : ZIMBABWE EDUCATIONAL, SCIENTIFIC, SOCIAL AND CULTURAL WORKERS UNION vs WELFARE EDUCATIONAL INSTITUTIONS EMPLOYERS ASSOCIATION
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

Voluntary arbitration proceedings are governed by the Arbitration Act [Chapter 7:15]. In McKelvey v Abrahams Anor 1989 (2) ZLR 251 (SC) GUBBAY CJ…, said: “The object of arbitration, as expressed in para 13 of the Schedule to the Act, is to arrive at an award that is final and binding on the parties. Thus, an ...
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SC06-15 : BALLANTYNE BUTCHERY (PRIVATE) LIMITED t/a DANMEATS vs EDMORE CHISVINGA & OTHERS
Ruled By: GWAUNZA JA, GARWE JA and PATEL JA

This appeal arises from the application of two retrenchment agreements that were entered into between the parties on 23 January 2009. The first agreement stipulated the payment of specified terminal benefits, while the second provided for various payments in kind, i.e. fuel coupons and pork bones. The latter package was duly paid out and ...
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SC09-15 : INTER-AGRIC (PRIVATE) LIMITED vs ALLAN MUDAVANHU AND TWELVE OTHERS
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

In addition, at law, the arbitrator was only competent to determine the dispute between such parties as had been referred to him by the labour officer. Thus, he was confined to his terms of reference. He had no mandate beyond that which had been referred to him. It is not in dispute that the ...
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SC14-17 : CHEMCO HOLDINGS (PRIVATE) LIMITED vs L TENDERE and TWENTY-FOUR OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA, and MAVANGIRA JA

Whether the Arbitrator correctly found the appellant to have committed an unfair labour practice The arbitrator was required to enquire into the lawfulness of the transfer and the remedy. He found the transfer to be unlawful and void and declared the appellant to be guilty of an unfair labour practice. In my view, he ...
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SC30-17 : ALLIANCE INSURANCE vs IMPERIAL PLASTICS (PRIVATE) LIMITED and THE HONOURABLE JUDGE L.G. SMITH (RTD) N.O.
Ruled By: MALABA DCJ, MAVANGIRA JA and UCHENA JA

This is an appeal against the whole judgment of the High Court dismissing an application to set aside an arbitral award in terms of section 34 of the Arbitration Act [Chapter 7:15]. The facts in this matter are that the first respondent owned a plastic processing plant which was insured by the appellant under ...
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HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MARQUE MBATHA
Ruled By: MATHONSI J

This application is made in terms of Article 34 of the Uncitral Model Law which is a schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award issued by the arbitrator, K. Segula, on 29 July 2014, in terms of which she quantified the respondent's damages in lieu of reinstatement as ...
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HH138-15 : GOLD DRIVEN INVESTMENTS vs WILLEMSE FARMING ENTERPRISES (PVT) LTD and FREDRICK CHRISTIAN MULLER
Ruled By: MATHONSI J

The applicant seeks an order setting aside the arbitral award made by an independent arbitrator, Justice A M EBRAHIM, on 4 December 2013, on the ground that it offends the public policy of Zimbabwe in terms of Article 34 of the Unicitral Model Law contained in the Arbitral Act [Chapter 7:15]. The said arbitration was conducted in ...
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HH71-15 : OK ZIMBABWE vs CLARIS MADZINGA
Ruled By: UCHENA J and MWAYERA J

The appellant lodged an appeal against the Magistrates Court decision wherein the court a quo registered an arbitral award….,. It is not in dispute that registration of an award in the Magistrate or High Court is for purposes of having the order registered as an order of the respective court in order to facilitate enforcement. The appellant, in the face ...
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SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

It has been noted that in the Labour Court the appellant unsuccessfully argued that Arbitrator Manase lacked the jurisdiction to determine the lawfulness or otherwise of the award by Arbitrator Bvumbe. In other words, Arbitrator Manase, who, at law, enjoyed parallel jurisdiction with Arbitrator Bvumbe, could not competently interfere with the latter's award. The appellant, on appeal to ...
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Appealed
SC10-18 : UNITRACK (PRIVATE) LIMITED vs TELONE (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

In Conforce (Pvt) Ltd v City of Harare 2000 (1) ZLR 445 (H)…, the following was stated: “I agree that a court should not interfere with the Arbitrator's Award so as to alter it to accord with what the court thinks the Arbitrator actually decided.”
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HH154-14 : TEL ONE (PRIVATE) LIMITED vs UNITRACK (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

The applicant stated that it was trite that a court has no jurisdiction and should be wary of interfering with an arbitral award except in a limited sense…, and relied on the following cases as authorities for this proposition: Schoeman Schoeman v Schoeman 1928 LPD 564; Keen v Durban City Council 1951 (2) ...
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HH262-10 : ZIMBABWE POSTS (PVT) LTD vs COMMUNICATION AND ALLIED SERVICES WORKERS UNION OF ZIMBABWE
Ruled By: MUTEMA J

That an application under Article 34 of the Model Law must be made in terms of Order 32 and not Order 33 of the High Court Rules, 1971 was put beyond doubt by GWAUNZA JA in Mtetwa and Anor v Mupamhadzi 2007 (1) ZLR 253 (S)…,. The words of the learned Judge of Appeal, in that ...
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HH60-14 : ZIMBABWE POSTS (PVT) LTD vs COMMUNICATION AND ALLIED SERVICES WORKERS UNION OF ZIMBABWE
Ruled By: MUTEMA J

The applicant is the employer of members of the respondent union. In early 2009, the parties engaged each other in negotiating wage and salary adjustments. The respondent was advocating for a minimum wage of US$490= per month on behalf of each of its members. The applicant argued that it could not afford to pay any ...
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HH250-18 : WIDE FREE (PVT) LTD t/a CORE SOLUTIONS vs MEIKLES LTD
Ruled By: MUREMBA J

In terms of Article 35(1) of the Arbitration Act [Chapter 7:15] an arbitral award becomes binding upon being granted and it becomes enforceable upon being registered by the High Court. The provision reads; “An arbitral award, irrespective of the country in which it was made, shall be recognized as binding, and, upon application, in writing, to the High Court, ...
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HH498-16 : MEIKLES LIMITED vs WIDE FREE INVESTMENTS (PVT) LTD t/a CORE SOLUTIONS and THE HONOURABLE MOSES HUNGWE CHINHENGO N.O.
Ruled By: MTSHIYA J

This is an application to set aside the arbitral award granted by the second respondent on 15 December 2015. The application is opposed. The applicant's founding affidavit states: “This is an application 13(3), 34(2)(a)(iv) and 34(2)(b)(ii) of the Schedule of the Arbitration Act [Chapter 7:15] (“the Act”). It seeks an order that invalidates the appointment of the Honourable Justice ...
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HH103-15 : RICHARD MATTHEWS vs THE HONOURABLE MR JUSTICE A. EBRAHIM and UMESHKUMAR DWARKADAS KOTECHA and DHIRUBHAI MAGANLAL DESAI
Ruled By: ZHOU J

This is an application in terms of Article 34 of the Schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award dated 20 December 2011. The award was rendered by the first respondent in a dispute between the applicant, the second and third respondents. The application is opposed by the second and third ...
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HH130-15 : ISRAEL CHIRANGWANDA vs ZIMBABWE LEAF TOBACCO and ADVOCATE DAVID OCHIENG
Ruled By: MAKONI J

On 21 June 2012 the respondent (as applicant), in Case No.5936/11, instituted proceedings in terms of Article 35 of the Arbitration Act for the registration of an arbitral award. It was opposed by the applicant (as respondent). On 5 March 2013, and by consent of the parties, and in terms of a court order, the two matters ...
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HH164-15 : JOSEPH NDUNA vs PROTON BAKERIES
Ruled By: MTSHIYA J

Arbitrators and the Labour Court have no enforcement mechanisms of their awards/orders and hence the need to register same as orders of either the Magistrate Court or High Court. This is purely for purposes of enforcement. It is only when the award has been so registered that the beneficiary can then enforce it - if ...
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Appealed
SC08-19 : AUGUR INVESTMENTS OU vs FAIRCLOT INVESTMENTS (PVT) LTD t/a T & C CONSTRUCTION and D.L. CRUTTENDEN
Ruled By: GWAUNZA JA, MAVANGIRA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court dismissing the appellant`s application for the setting aside of an arbitral award in terms of Article 34(2) of the UNCITRAL Model Law as set out in the Arbitration Act [Chapter 7:15]. FACTUAL BACKGROUND The appellant is a company incorporated in terms of the laws of Mauritius and it ...
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HH175-16 : AUGUR INVESTMENTS OU vs FAIRCLOT INVESTMENTS (PVT) LTD T/A T& C CONSTRUCTION and D.L. CRUTTENDEN
Ruled By: MATANDA-MOYO J

This is an application for setting aside of an arbitral award in terms of Article 34(2) of the Model Law as set out in the Arbitration Act [Chapter 7:15]. The applicant bases his application on the following grounds; (1) That the Arbitrator made decisions on matters not placed before him; (2) That once the Arbitrator made a finding that ...
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SC27-19 : SYNOHYDRO ZIMBABWE (PVT) LTD vs TOWNSEND ENTERPRISES (PVT) LTD and DAVID WHATMAN N.O. and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MAKARAU JA

It has further been argued on behalf of the applicant that the court a quo erred in registering an award that does not sound in money. The award was not attached to the application and I am none the wiser as to its contents. In opposition to this averment by the applicant I expected a vehement denial by ...
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HH217-15 : GODFREY GURIRA and ESTATE LATE OBERT NDAWI and HILTON CHIKUYA and LAZARUS NEMBAWARE vs ZIMBABWE COUNCIL FOR HIGHER EDUCATION (ZIMCHE) and ROSELINE NHAMO and MASTER OF THE HIGH COURT
Ruled By: ZHOU J

This is an application for the setting aside of an arbitral award rendered by the second respondent in a contractual dispute between the applicants and the first respondent. The application is being made in terms of Article 34(2)(b)(ii) of the Schedule to the Arbitration Act [Chapter 7:15].The application is opposed ...
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SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY
Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

This is an appeal against part of the judgment of the Labour Court setting aside an arbitral award in terms of which the respondent was ordered to pay the appellant the sum of US$17,500.THE BACKGROUNDThe appellant was employed by the respondent as a Secretary General. On 2 June 2012, the ...
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HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

In proceedings for the recognition of a foreign judgment, it would be quite improper to pronounce upon the merits of any issue of fact or law tried by the foreign court and to review or set aside its findings: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) ...
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HH562-14 : WORLD EDUCATION vs PHANUEL KAPFUDZARUWA
Ruled By: TSANGA J

This is an opposed application in which the applicant, namely, World Education, seeks a rescission of judgement in the matter HC377/14 in which the respondent was granted an order to register an arbitration award it had successfully obtained against the applicant.The applicant seeks rescission on the basis that the order ...
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HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

On 1 January 2003, the applicant and the first respondent executed an agreement for the “supply of primary beverage transport services.”In terms of clause 8 of the agreement, the first respondent, Delta, appointed the services of the applicant, Pioneer, to distribute and deliver products on its behalf to various destinations.In ...
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HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J

The applicant is a company duly registered in terms of the laws of Zimbabwe. The second respondent is its employee with whom it has had labour disputes leading to this application.The second respondent was suspended from employment pending the resolution of the dispute between her and her employer.The first respondent ...
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HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

This matter came before me as an urgent application.After having sight of the opposing papers filed by the respondents, I concluded that the matter was not urgent, and, by agreement of the parties, it was enrolled on my roll of opposed matters as all parties had filed all the necessary ...
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HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD
Ruled By: MUSHORE J

The facts of this matter are these:On 1 February 2013, the plaintiff insured his vehicle against the risk of fire, accident, and loss, through the defendant company, by way of a comprehensive insurance policy.In terms of the insurance policy, the plaintiff was to receive full cover for his vehicle, a ...
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SC22-21 : STONEWELL SEARCHES (PVT) LTD vs STONE HOLDINGS (PVT) LTD and MUTOKO CONSORTIUM and MOSES CHINHENGO N.O.
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

This is an appeal against the decision of the High Court upholding an arbitral award handed down by the third respondent on 10 July 2018 in terms of which the appellant's claim was dismissed for want of prosecution and the first respondent's counter claim was granted.BACKGROUND FACTSPrior to January 2006, ...
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SC50-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and HONOURABLE RETIRED JUSTICE SMITH vs GOOD LIVING REAL ESTATE (PVT) LTD
Ruled By: GWAUNZA DCJ, BHUNU JA and MAKONI JA

This is an appeal against the whole judgment of the High Court setting aside an arbitral award granted in favour of the appellants on the basis that it was contrary to public policy as it was made in defiance of an extant court order.THE BACKGROUNDOn 10 January 2010, the first ...
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SC65-21 : STARAFRICA CORPORATION LIMITED vs ZIMBABWE SUGAR REFINERY WORKERS UNION
Ruled By: GWAUNZA DCJ, BHUNU JA and BERE JA

This is an appeal against part of the judgment of the Labour Court (the court a quo) handed down on 26 January 2018. The appeal is against that part of the judgment which upheld the arbitrator's award granting the respondent's members an 11 percent wage increase.FACTUAL BACKGROUND OF THE CASEThe ...
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HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

This was an application for the setting aside of an arbitration award.The arbitrator, the second responded herein, was a retired Judge of this court.The basis of the application was that the arbitrator had misconstrued the factual basis of the applicant's claim before him. It was also said, that, the arbitrator's ...
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HH62-14 : JOHANNES MAKONYE vs KENAE RAMODIMOOSI and ENTREDEV PROPERTY GROUP and C.H. LUKAS
Ruled By: CHIGUMBA J

This is an application in terms of section 34 of the Model Law as set out in the Second Schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award dated 23 February 2012, granted by the third respondent.The second respondent was the applicant's estate agent.At ...
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HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD
Ruled By: TSANGA J

This is an opposed application for rescission of judgment which has its genesis in the dismissal of the applicant, Patricia Mapini, from employment by the respondent, Omni Africa.The applicant was engaged as a Sage Pastel Sales Executive by the respondent.The working relationship soured when the respondent terminated the applicant's contract ...
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HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

At the hearing of this matter, I granted the application for registration of an arbitral award with costs on an ordinary scale.I gave brief reasons for the judgment, being of the view, that, the law that governs the question of whether the noting of an appeal against an arbitral award ...
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