Review re: Arbitration Proceedings

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 order to perform its obligations under the agreement, Pioneer undertook to supply vehicles to Delta for use in the distribution aforesaid. To that end, Pioneer had to make available to Delta twelve mechanical horses which would be used to draw thirty-four trailers, these being supplied by Delta.

The agreement also provided for the supply of additional horses, by Pioneer, on an ad hoc basis as the exigencies of the situation would have demanded.

As sometimes happens, the parties had a falling out.

The agreement, in terms of clause 18 thereof, provided for the settlement of disputes through an arbitration process.

In due course, the second respondent was appointed as arbitrator to the dispute and the matter referred to him. The parties were called before him, and, on 16 January 2010, he issued an award.

The applicant has, through these proceedings, brought an application to have the award set aside by this court in terms of Chapter VII, Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15]. The applicant also seeks costs against the first respondent.

The founding affidavit has been deposed to by a John Groves. He states that he is employed as a Managing Director by the applicant and that he is authorised to depose to the affidavit.

He states therein that the application was being brought to court in accordance with the provisions of section 2 of Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15].

The dispute is centred around the effect to be given to clause 9(f) of the agreement, in terms of which, upon termination of the agreement, Pioneer was supposed to return the trailers to Delta, and such return to be in “good working condition” and order fair wear and tear excepted.

The deponent states that, on 26 September, Delta commenced arbitration proceedings in terms of a Statement of Claim filed of record. Pioneer opposed the claim and the matter was set down for hearing before the arbitrator. Both parties adduced viva voce evidence.

According to the deponent to the affidavit the crystal issue before the arbitrator was the duration of the agreement.

The arbitrator found that the claim by Delta had not prescribed at the time that it submitted the dispute to arbitration. The deponent contends, therefore, that the arbitrator acted outside the enabling provisions of the agreement.

He contends, further, that the finding by the arbitrator that the agreement between the parties terminated on 30 November 2005 was not rationally linked to either the evidence adduced by the parties or submissions made by the same on the papers or during the hearing. He contends, further, that, in finding as he did, that the agreement terminated on 30 November instead of 31 December, as provided for in clause 2 of their agreement, the arbitrator had created a new contract for them.

In addition to the above, the applicant contended that the mandate of the arbitrator was limited to the duration of the agreement, and that consequently he was supposed to ascertain the obligations of the parties as at the date of termination of the agreement.

However, contends the applicant, the arbitrator seemed to have extended the applicant's obligations under the contract beyond the lifespan of the agreement.

It is further contended that the applicant's liabilities ought to have been ascertained as at the date.

According to the applicant, the award is not limited to the termination date, as found by the arbitrator, that is 30 November 2005, but goes beyond that. Therefore, the applicant contends, even on his own version, the arbitrator has acted outside the provisions of the contract. This, he suggests, is contrary to the Zimbabwean substantive law on the privity of contracts and therefore contrary to public policy.

The deponent also avers, that, by awarding specific performance in favour of a party who had, in terms of the contract, bilateral obligations which it had itself not performed, and was not in a position to perform, the arbitrator had unjustly enriched one of the parties at the expense of the other contrary to the positive law in Zimbabwe regarding bilateral obligations and further that this was contrary to public policy.

In the event, the applicant prayed for the setting aside of the arbitral award....,.

The applicant has attacked the award on three prongs;

(i) Firstly, that the arbitrator acted outside the provisions of the enabling agreement;

(ii) That the claim was prescribed; and

(iii) That the order for specific performance was contrary to the public policy of Zimbabwe regarding bilateral and reciprocal obligations and the principle of unjust enrichment.

According to the applicant, the award should therefore be set aside on the following grounds:

1. That the arbitrator acted outside the provisions of the enabling agreement;

2. That the claim was prescribed in terms of section 14 of the Prescription Act; and

3. That the order for specific performance, in the circumstances of this case, was contrary to the public policy of Zimbabwe regarding bi-lateral reciprocal obligations and the principles of unjust enrichment.

In relation to the first issue, the applicant contended that the arbitrator had acted outside the provisions of the enabling agreement.

It is contended that the first respondent had an onus to establish the duration of the agreement between the parties. Contrary to the provisions of the contract, so the applicant contends, the arbitrator placed the onus on the applicant to disprove the contentions of the claimant.

The applicant contends that, before the arbitrator, it put up the case that the agreement commenced on 1 January 2003 and terminated on 31 December 2004 and that the respondent, had, contrary to that assertion, contended that the agreement had not terminated up to the time that it instituted proceedings.

The applicant contends that the arbitrator disagreed with the versions that both parties placed before the arbitrator, and that, in approaching the matter as he did, he created a new contract between the parties based on what he termed practical considerations.

The applicant contends, in this regard, that the arbitrator unilaterally extended the duration of the contract where he held the date of termination as 30 November 2005.

The applicant contends, therefore, that the award is liable to be set aside on the grounds that it is in conflict with the public policy of Zimbabwe.

The applicant suggests that there was ambiguity in the contract and that in fact the arbitrator did confirm that the contract was ambiguous and that therefore he should have invoked the contra proferentum rule in favour of the applicant and this error on his part constituted a gross error on his part which further rendered the award unenforceable.

He suggests that the arbitrator must have found that clause 8(d) was ambiguous and contrary to the clear provisions of clauses 1 and 2 of the agreement which stated the commencement and termination dates. He suggests that the contract was prepared by Delta, and, as it was ambiguous in relation to clause 8(d), the arbitrator should have been guided by the contra proferentem rule and find that the contract had terminated as provided for in clause 2.

He stated that the arbitrator failed to apply the clear and positive principles of Zimbabwean law in resolving the dispute, and that, in the circumstances, the award was contrary to the public policy of Zimbabwe.

The first respondent has contended that it is not for this court to decide whether or not the arbitrator was correct to find that the agreement would have terminated on the date that the arbitrator said it terminated. It was suggested, by the respondent, that what this court must ask itself is whether the conclusions reached by the arbitrator offends the public policy of Zimbabwe in the sense of being so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair-minded person would consider the conception of justice in Zimbabwe would be intolerably hurt by the award: see Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S).

The critical issue for determination before the arbitrator was the duration of the contract.

It is trite that the original UNCITRAL Model did not define the concept of public policy. It is accepted, however, that the concept covers fundamental principles of law and justice in substantive as well as procedural law.

In casu, the standard set in Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S) has not been met.

The applicant has chosen not to place the record of proceedings before for the court resulting in the court being unable to judge for itself whether or not the conclusions of the arbitrator are so outrageous in defiance of logic and accepted moral standards as to lead a fair minded person to believe that justice in Zimbabwe would be intolerably hurt by the award in favour of the first respondent....,.

I am somewhat hampered by not having been provided with the record of the proceedings....,.

The record of proceedings of the arbitration process was not before the court.

The submission from the applicant's counsel was that it was understood that it was the responsibility of the second respondent, the arbitrator, to furnish the record to the Registrar of this court.

As matters stand, the arbitrator did not appear or file any documents.

The arbitration process is completely separate from the court system, and, without any effort expended by the applicant to secure the provision of the record of proceedings by the arbitrator, I am not aware how else this was to be achieved.

HH62-11 : LANCASHIRE STEEL (PRIVATE) LIMITED vs TONDERAI ZISENGWE and 430 OTHERS and THE DEPUTY SHERIFF N.O. KWEKWE
Ruled By: BERE J

I have carefully followed the submissions by both counsel in this hearing. Counsel for the respondents seemed to suggest that once an arbitrary award has been registered the quantification of that award cannot be challenged subsequently without seeking first to upset the registration process of the award itself. I am unable to agree. It occurs to me that the ...

I have carefully followed the submissions by both counsel in this hearing.

Counsel for the respondents seemed to suggest that once an arbitrary award has been registered the quantification of that award cannot be challenged subsequently without seeking first to upset the registration process of the award itself.

I am unable to agree.

It occurs to me that the figure carried on the writ of execution can be challenged at any given time if it is felt that that figure is not consistent with what is legitimately due to the judgment creditor. I imagine a simple situation where the judgment debtor has effected part payment long before execution commences. If, on a subsequent occasion, the judgment creditor were to attempt execution without taking into account the part payment, surely the judgment debtor must be given a platform to have that anomaly corrected. This appears to be what has prompted this application by the applicant. More importantly, the applicant has argued that it has paid the respondents far more in excess of the amounts it believes they are entitled to in terms of its own computation of what is due to the respondents. Annexures C and D have been presented to justify the position taken by the applicant.

I did not hear the respondents arguing that ever since the arbitrary award was made, the applicant has not paid them anything.

There is, in my view, need to give both parties an opportunity to reconcile the payments made by the applicant against what is due to the respondents; and the court application HC2159/11 presents a perfect opportunity for both parties to achieve this. Either of the two will happen in that process. It is either the applicant will succeed or fail in that regard. If the applicant loses that case, execution will follow and that does not seem to present much of a challenge. But, in the event of the applicant succeeding in that application, when execution has already been completed, the results will be too ghastly to contemplate.

The aspect of public policy has not escaped my attention. It is easy to destroy the potential of the applicant by the stroke of a pen.

It is equally true that public policy demands that the respondents be timeously paid what is due to them as employees of the applicant. Courts do operate within a given political, social and economic environment. As a judicial officer, I am fully aware that our unemployment rate in this country represents one of the highest in the world and it has not been easy to attract investment in this country because of many reasons. However, this is not the perfect platform to debate why, as a country, we have been unable to attract the much needed investment. But, I emphasize we must be slow to move towards the extinction of existing enterprises. The coming into the picture of Essar as a potential investor in the applicant company must not be lightly taken. It must be given a chance, moreso given the likelihood of a concrete agreement being reached this current month. It occurs to me that that development might provide a long term benefit to the plight of the respondents and their dependants….,.

Accordingly I order as follows:

1. Pending the finalization of the application by the applicant, as set out in HC2159/11, the second respondent is ordered to restore to the applicant all the property removed and stay any further execution against the applicant's property.

2. The restored property shall remain under attachment pending the determination of case HC2159/11.

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

Both the Labour Act [Chapter 20:28] and the Arbitration Act [Chapter 7:15] do not provide for the remedy of an application for review of an arbitral award made in voluntary arbitration proceedings to the Labour Court.

SC13-13 : BEITBRIDGE BULAWAYO RAILWAY COMPANY vs ZIMBABWE AMALGAMATED RAILWAY UNION and ARBITRATOR GLADYS MPEMBA
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

Whether or not there was a proper application before the court a quo It was contended on behalf of the appellant that the award issued by the second respondent was not reviewable by the High Court since it resulted from a voluntary arbitration. Such an award, it was contended, could only be set aside in ...

Whether or not there was a proper application before the court a quo

It was contended on behalf of the appellant that the award issued by the second respondent was not reviewable by the High Court since it resulted from a voluntary arbitration. Such an award, it was contended, could only be set aside in terms of Article 34 of the Model Law prescribed in the 2^nd Schedule of the Arbitration Act [Chapter 7:15]. Article 34 of the Model Law provides as follows:

“(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.”

The appellant submitted that the respondent filed an ordinary application for review on grounds of review as set out in section 27 of the High Court Act [Chapter 7:06]. The application did not state whether it was in terms of section 27 of the High Court Act [Chapter 7:06] or in terms of Article 34 of the Model Law.

A perusal of the grounds for review contained in the founding affidavit indicates that the first respondent was relying on the ground of review as contained in Article 34(2)(a)(iii) of the Model Law which provides that:

“(2) An arbitral award may be set aside by the High Court only if -

(a) The party making the application furnishes proof that -

(i)…,.

(ii)…,.

(iii) The award deals with a dispute not contemplated by or not falling within the terms of the submissions to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside.”

It is trite that the High Court cannot set aside an arbitral award on the grounds set out in section 27 of the High Court Act [Chapter 7:06]. In Catering Employers Association of Zimbabwe v Zimbabwe Hotel and Catering Workers Union & Anor 2001 (2) ZLR 388 (S), SANDURA JA…., said:

“The suggestion by the learned Judge is that in addition to the grounds set out in Article 34(2) of the Model Law, an arbitral award may be set aside by the High Court on review on the grounds set out in section 27 of the High Court Act (Chapter 7:06). I respectfully disagree. In my view, Article 34(2) of the Model Law sets out the sole ground on which an arbitration award may be set aside by the High Court. That is what Article 34(2) says and that is what this court said in Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S) at 458F.”

The court a quo, in its judgment, clearly relied on the provisions of Article 34 of the Model Law, and stated that the provisions of the Arbitration Act [Chapter 7:15] applied to the application before it.

There can be no question that the application before the court a quo was made and determined in terms of Article 34 of the Model Law. It is my view that the correct procedure was used to challenge the arbitral award. The judgment of the court a quo shows that the court relied on Article 34(2)(a)(iii) in reaching its decision. The High Court therefore had jurisdiction in terms of Article 34 to entertain the application.

There was thus a proper application before the court a quo.

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.BackgroundThe appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. ...

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.

Background

The appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. Their periods of employment ranged from 2007 and 2008 until January and April 2011 when their contracts of employment expired by effluxion of time.

Their contracts were not renewed because the project for which they were employed was finally wound up in 2011.

In July 2010, in a separate matter involving the respondent, its Workers Committee, and its employees, the first arbitrator (Nasho) ordered the payment of back pay, from 1 March 2009 to the date of the award, in line with the multi-currency system.

In conformity with that award, a Works Council Agreement was concluded, on 15 September 2010, to fix the back-pay due to all employees and the salary structure for non-managerial employees from 1 January 2010 onwards.

In a subsequent matter, the appellants in casu challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

The second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012.

On appeal, the arbitral award was upheld by the Labour Court. That decision is currently pending an application for leave to appeal to this court.

On 10 December 2012, following the rejection of their unfair dismissal claim by arbitrator Mugumisi, the appellants filed a further claim for the payment of arrear salaries and benefits.

The third arbitrator (Mambara) found in their favour and awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimant was retrenched.

The respondent, being aggrieved by that award, applied to the Labour Court for the review of the award.

Decision Appealed and Grounds of Appeal

The court a quo rejected two of the grounds of review mounted by the respondent.

It found, that, the Mambara award did not improperly seek to review or enforce the Nasho award. It also found, that, the prior decision of the court, upholding the Mugumisi award, was different from the matter currently before it because the former concerned back pay from the date of termination to the date of reinstatement as opposed to salary and benefits accrued before termination.

Consequently, it was not necessary that the current matter be held in abeyance pending the determination of the appeal in the earlier matter.

The court a quo found in favour of the respondent on the remaining two grounds of review:

(i) Firstly, it held, that, the Mambara award did operate to review and alter the court's previous decision that the appellants had not been unfairly dismissed. This resulted in uncertainty on the employment status of the appellants and the possible institution of other unnecessary claims.

Moreover, the arbitrator's findings, that, the appellants had implied permanent contracts of employment and that they had been retrenched were equally erroneous.

(ii) Secondly, the court found, that, the issue of the appellants grades was not part of the arbitrator's terms of reference. Thus, the arbitrator had misdirected himself in going beyond his remit and basing his award on extraneous terms of reference.

The court accordingly held, that, the review succeeded on these two grounds.

The arbitral award was set aside and substituted with the dismissal of the appellants claim.

The grounds of appeal in casu are that the court a quo erred in the following respects:

(i) In concluding, that, the arbitrator's award, mandating the quantification of an admitted liability, had the effect of altering the court's previous judgment.

(ii) In placing any significance on the arbitrator's misuse of the word retrenchment.

(iii) In concluding, that, the arbitrator had effectively conducted a re-grading exercise in determining what was due to the appellants.

(iv) In concluding, that, there was a reviewable issue raised before the court.

Jurisdiction to Review Arbitral Awards

In his heads of argument, and at the hearing of the appeal, counsel for the appellants embarked upon an excursus outside the stated grounds of appeal into the review jurisdiction of the Labour Court.

He submits, that, section 89(1)(d1) of the Labour Act [Chapter 28:01] limits that court to the same review powers as are exercisable by the High Court.

Therefore, since the review of arbitral awards cannot be instituted in terms of the High Court Act [Chapter 7:06] but only under the Model Law scheduled to the Arbitration Act [Chapter 7:15], it follows that the Labour Court, being a creature of statute, and having no inherent jurisdiction, cannot review the decisions of arbitrators.

Counsel for the appellants relies for this proposition upon the decisions in Catering Employers Association of Zimbabwe v Zimbabwe Hotel and Catering Workers Union & Another 2001 (2) ZLR 388 (S) and National Social Security Authority v Chairman, National Social Security Authority Workers Committee & Others 2002 (1) ZLR 306 (H).

In Catering Employers Association of Zimbabwe v Zimbabwe Hotel and Catering Workers Union & Another 2001 (2) ZLR 388 (S), it was held, that, Article 34(2) of the Model Law sets out the sole grounds on which the High Court may set aside an arbitral award.

The court cannot, therefore, rely on the grounds set out in section 27 of the High Court Act to set aside an arbitral award on review.

This position was adopted in National Social Security Authority v Chairman, National Social Security Authority Workers Committee & Others 2002 (1) ZLR 306 (H) on the somewhat questionable basis, that, the general power to review proceedings, conferred by section 26 of the High Court Act, does not extend to arbitral awards because an arbitrator does not fall into any of the stipulated categories, i.e. inferior courts of justice, tribunals, or administrative authorities.

In any event, it was re-affirmed, that, the narrow grounds on which an arbitral award may be set aside are set out in Article 34 of the Model Law, and recourse to the courts against an award may only be made by way of an application under that Article.

The legislature had, in enacting the Model Law, so it was held, deprived the High Court of its inherent jurisdiction to review the conduct of an arbitrator.

Counsel for the respondent submits, that, section 89(1)(d1) of the Labour Act was inserted by Act No.7 of 2005: therefore, the earlier authorities cited on behalf of the appellants do not apply.

This position is placed beyond doubt by the decision of this court in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S) to the effect, that, the Labour Court has full powers of review in addition to those of the High Court.

Moreover, section 92EE(1) of the Labour Act, inserted by Act No.5 of 2015, makes it very clear, that, the Labour Court can exercise review powers over the decisions of arbitrators.

I entirely agree with these submissions.

Section 89 of the Labour Act [Chapter 28:01] prescribes the functions, powers, and jurisdiction of the Labour Court. In particular, section 89(1) of the Labour Act, in its relevant portions, provides that:

“(1) The Labour Court shall exercise the following functions —

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment;

(b)...,.;

(c)...,.;

(d)...,.;

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.”

The interpretation of this provision was lucidly elaborated by GARWE JA in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S)..., as follows:

“The above provisions are, in my view, clear and unambiguous. In respect of labour matters, the Labour Court shall exercise the same powers of review as does the High Court in other matters. The jurisdiction to exercise these powers of review is in addition, and not subject to, the power the court has to hear and determine applications in terms of the Act….,.

The suggestion…, that, the Labour Court has been given the same power of review as would be exercisable by the High Court in respect of labour matters, is, in my considered view, incorrect and inconsistent with the provisions of the Act. I say this for two reasons:

(i) Firstly, the Act is clear, that, no court, other than the Labour Court, shall have jurisdiction in the first instance, to hear and determine any application, appeal, or matter referred to in section 89(1) of the Act – see section 89(6) of the Act….,.

(ii) Secondly, it is clear, that, the interpretation given relies on a superficial reading of the wording of section 89(1)(d) [sic]. The section should be understood to mean 'the same powers of review in respect of labour matters as would be exercisable by the High Court' or alternatively 'the same powers of review, as would be exercisable by the High Court, in respect of labour matters.'

Any other reading of the paragraph would clearly result in an absurdity.”

I fully endorse the above reasoning.

The only possible meaning and effect to be ascribed to section 89(1)(d1) of the Labour Act is that the Labour Court has the same power to review any inferior proceedings in labour matters on the same grounds of review as may be invoked by the High Court in the exercise of its powers of review in relation to other matters not embraced by the Labour Act.

The interpretation propounded by counsel for the appellants is not only specious in that it divests the Labour Court of the full breadth of its oversight in labour matters, but also absurd in that any procedural or other irregularity committed by an arbitrator would be rendered wholly unreviewable - whether by the Labour Court or the High Court.

That surely could not have been the intention of Parliament in the enactment of section 89 of the Labour Act.

In any event, any possible room for misconstruing section 89(1)(d1) of the Labour Act has been inescapably shut down by the recently enacted section 92EE of the Labour Act which provides as follows:

“92EE Grounds of Review by Labour Court

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with this Act may be brought on review before the Labour Court shall be –

(a) Absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b) Interest in the cause, bias, malice, or corruption on the part of the arbitrator or adjudicating authority concerned;

(c) Gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals, or authorities.”

The purpose of section 92EE of the Labour Act, as I perceive it, is to bolster the review powers of the Labour Court, under section 89(1)(d1), by spelling out, in unambiguous terms, the specific grounds upon which those powers may be exercised, viz. the same grounds as are enumerated in section 27 of the High Court Act.

Moreover, the provision makes it clear, ex abundante cautela, that, the review powers of the Labour Court are exercisable over arbitrators and adjudicating authorities in all labour matters.

To conclude on this aspect, I take the view, that, the appellant's legal point in limine, challenging the jurisdiction of the Labour Court to review arbitral awards, is utterly unmeritorious.

It is accordingly dismissed.

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

More confounding, in my view, is the fact that the parties in this matter agreed to refer the dispute to Arbitrator Manase. This was notwithstanding the common understanding by all that an arbitrator who enjoys parallel jurisdiction with any other arbitrator can, at law, neither set aside nor interfere in any manner with the award ...

They also did this in full knowledge of the fact that the first arbitral award was extant and that the agreement based on it had been fully implemented by the parties to the dispute.

The respondent attempts to differentiate between the two arbitral awards as follows:

“...,. The court a quo did not err because the two awards dealt with separate and distinct causes of action. The Manase award dealt with the lawfulness of the retrenchment while the Bvumbe award dealt with a dispute over claimed contractual benefits and benefits to be included in a retrenchment package...,.”...,.

There can be no doubt that the 'retrenchment' referred to in this submission is the process, based on Arbitrator Bvumbe's award, that culminated in the signing of the termination of employment agreement by the parties. As already stated, it is evident that the parties loosely used the term 'retrenchment' when in fact all they signed was an agreement terminating the respondent's employment with the appellant.

This is the process that Arbitrator Manase was to review and whose lawfulness or otherwise he was to determine.

I have found that the process did not amount to a retrenchment.

I must make the point that even if it had been a retrenchment process, Arbitrator Manase would still have lacked the jurisdiction to determine its lawfulness or otherwise. Following upon the arbitral award handed down by Arbitrator Bvumbe, the matter became res judicata. By virtue of the fact that both arbitrators were endowed with the same jurisdictional powers, Arbitrator Manase was accordingly functus officio in relation to the same dispute. The first arbitral award could only be reviewed, or set aside, by a court of higher jurisdiction. Because that did not happen, that award stands as the one that finally determined the dispute, leaving no basis for interference therewith by the second Arbitrator, Mr Manase.

His attempt to do so was therefore of no force or effect.

View Appeal
SC20-18 : VENGESAI CHIRASHA vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

Whether The Labour Court, As At 19 September 2011, Had The Jurisdiction To Review The Decision Of An Arbitrator Before NARE J, in the Labour Court, was an application for the review of an arbitrator's decision. The respondent's legal practitioner stated that the Labour Court had no jurisdiction to review the decision of an arbitrator which point ...

Whether The Labour Court, As At 19 September 2011, Had The Jurisdiction To Review The Decision Of An Arbitrator

Before NARE J, in the Labour Court, was an application for the review of an arbitrator's decision. The respondent's legal practitioner stated that the Labour Court had no jurisdiction to review the decision of an arbitrator which point the Labour Court agreed with basing itself on two judgments of this Court: Minerals Marketing Corp of Zimbabwe v Mazvimavi 1995 (2) ZLR 353 (S) and Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S), which two judgments have since been rendered otiose consequent upon the amendment of the Labour Act in 2005.

Now, section 89 of the Labour Act prescribes the functions, powers and jurisdiction of the Labour Court. In particular, section 89(1), in its relevant portions, provides that:

“(1) The Labour Court shall exercise the following functions -

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment;

(b)…,.;

(c)…,.;

(d)…,.;

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.

[Paragraph inserted by section 29 of Act 7 of 2005]”…,.

GARWE JA, in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S)…, explained the import of section 89(1) (d1) of the Labour Act as inserted by Act No.7 of 2005 as follows:

“The above provisions are, in my view, clear and unambiguous. In respect of labour matters, the Labour Court shall exercise the same powers of review as does the High Court in other matters. The jurisdiction to exercise these powers of review is in addition, and not subject, to the power the court has to hear and determine applications in terms of the Act….,. The suggestion…, that the Labour Court has been given the same power of review as would be exercisable by the High Court in respect of labour matters is, in my considered view, incorrect and inconsistent with the provisions of the Act. I say this for two reasons.

(a) Firstly, the Act is clear that no court, other than the Labour Court, shall have jurisdiction in the first instance, to hear and determine any application, appeal or matter referred to in section 89(1) of the Act – see section 89(6) of the Act….,.

(b) Secondly, it is clear that the interpretation given relies on a superficial reading of the wording of section 89(1)(d) [sic]. The section should be understood to mean 'the same powers of review in respect of labour matters as would be exercisable by the High Court', or, alternatively, 'the same powers of review, as would be exercisable by the High Court, in respect of labour matters'. Any other reading of the paragraph would clearly result in an absurdity.”

The above interpretation by the court in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S) was recently applied by PATEL JA in Lungu & Ors v Reserve Bank of Zimbabwe SC01-17.

In Lungu & Ors v Reserve Bank of Zimbabwe SC01-17, the appellants challenged the Labour Court's jurisdiction to review the decision of an arbitrator. The appellants' argument is succinctly captured at pages 4 to 5 of the cyclostyled judgment as follows:

“In his heads of argument, and at the hearing of the appeal, Adv. Mpofu, for the appellants, embarked upon an excursus outside the stated grounds of appeal into the review jurisdiction of the Labour Court. He submits that section 89(1)(d1) of the Labour Act [Chapter 28:01] limits that court to the same review powers as are exercisable by the High Court. Therefore, since the review of arbitral awards cannot be instituted in terms of the High Court Act [Chapter 7:06] but only under the Model Law scheduled to the Arbitration Act [Chapter 7:15], it follows that the Labour Court, being a creature of statute and having no inherent jurisdiction, cannot review the decisions of arbitrators. Adv. Mpofu relies for this proposition upon the decisions in Catering Employers Association of Zimbabwe v Zimbabwe Hotel and Catering Workers Union & Another 2001 (2) ZLR 388 (S) and National Social Security Authority v Chairman, National Social Security Authority Workers Committee & Others 2002 (1) ZLR 306 (H).

In the Catering Employers Association case, it was held that Article 34(2) of the Model Law sets out the sole grounds on which the High Court may set aside an arbitral award. The court cannot therefore rely on the grounds set out in section 27 of the High Court Act to set aside an arbitral award on review. This position was adopted in the National Social Security Authority case on the somewhat questionable basis that the general power to review proceedings conferred by section 26 of the High Court Act does not extend to arbitral awards because an arbitrator does not fall into any of the stipulated categories, i.e. inferior courts of justice, tribunals or administrative authorities. In any event, it was reaffirmed that the narrow grounds on which an arbitral award may be set aside are set out in Article 34 of the Model Law, and recourse to the courts against an award may only be made by way of an application under that Article. The legislature had, in enacting the Model Law, so it was held, deprived the High Court of its inherent jurisdiction to review the conduct of an arbitrator.”

PATEL JA, in Lungu & Ors v Reserve Bank of Zimbabwe SC01-17, dismissed the appellants' argument where, at pages 6 to 7 of the cyclostyled judgment, he preferred the interpretation in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S) by stating:

“I fully endorse the above reasoning. The only possible meaning and effect to be ascribed to section 89(1)(d1) of the Labour Act is that the Labour Court has the same power to review any inferior proceedings, in labour matters, on the same grounds of review as may be invoked by the High Court in the exercise of its powers of review in relation to other matters not embraced by the Labour Act. The interpretation propounded by Adv. Mpofu is not only specious in that it divests the Labour Court of the full breadth of its oversight in labour matters but also absurd in that any procedural or other irregularity committed by an arbitrator would be rendered wholly unreviewable, whether by the Labour Court or the High Court. That surely could not have been the intention of Parliament in the enactment of section 89 of the Labour Act.”

It is critical to note that the Labour Court's jurisdiction to review the decision of an arbitrator in terms of section 89(1)(d1) of the Labour Act became effective as from 2005. At the time that the matter came before the Labour Court, in 2011, and the judgment was made which then became the subject of this appeal, the Labour Court had the power, as prescribed by the law, to review an arbitrator's decision. This power was clearly explained by this Court in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S) and Lungu & Ors v Reserve Bank of Zimbabwe SC01-17 as referred to above. Therefore, the court a quo misdirected itself in declining jurisdiction in the mistaken view that it could not review an arbitrator's decision, when, in point of law, it had the powers to do so.

The matter should be remitted back to the Labour Court to exercise the powers of review that it is clearly imbued with….,.

The challenge of the dismissal of the proceedings pertaining to the arbitrator's award must succeed with costs….,.

1….,.

2….,.

3. The appeal pertaining to the arbitrator's award is allowed with costs on the ordinary scale to be borne by the respondent.

4. The matter relating to the challenge of the arbitrator's award is remitted to the Labour Court for consideration on the merits before a different judge.

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 ...

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 is an arbitrator who was duly appointed to arbitrate in the labour dispute between the applicant and the second defendant.

The applicant and the second respondent filed written submissions with the first respondent.

The first respondent thereafter called them for a hearing which was not finalised. He called them again to clarify the issue of whether or not the second respondent had secured employment during the period of her suspension.

On 26 June 2007, while counsel for the second respondent was making submissions at the hearing, the first respondent said the second respondent had “told him about how she suffered during the years.” The applicant's counsel asked him to clarify where this conversation took place, but the first respondent did not respond to that inquiry.

That hearing was adjourned without a clarification of the first respondent's comments.

The applicant's counsel followed it up by letter to the second respondent's counsel dated 27 June 2007. The letter was copied to the first respondent. It reads as follows:

“We refer to the arbitration hearing before Mr Gabilo on 26 June 2007.

As you will no doubt be aware, the arbitrator made some remarks indicating that he had granted audience to the claimant and heard certain evidence from the claimant outside the framework of a hearing. The writer sought an explanation as to how this had occurred and the arbitrator gave no response.

Our client is concerned that the arbitrator may have acted improperly as a result of which his impartiality may be in doubt. In this regard, the respondent is entitled to impeach the arbitrator and have the matter referred to another arbitrator.

Please can we have your client's explanation in this regard not later than 29 June 2007.”

The second respondent's counsel did not respond within the stipulated period. The first respondent did not respond even though the letter was copied to him.

The applicant's counsel then wrote to the first respondent on 4 July 2007. The letter reads as follows:

“We refer to our letter of 27 June 2007 addressed to the claimant's legal practitioners and copied to you. We have not heard from the claimant's legal practitioners.

Our client has instructed us, in the circumstances, to address its request for your recusal as arbitrator in this matter on the grounds that the respondent entertains serious doubts as to your impartiality or independence as arbitrator. As indicated in our letter of 27 June 2007, the respondent believes that you have entertained representations from the claimant outside the framework of the arbitration hearing. When we requested that you explain the circumstances in which the claimant had made representations to you, you did not answer that question.

In the circumstances, the respondent seeks your recusal as arbitrator immediately.

Accordingly, you are to refer the matter to the Labour Officer who referred the matter to you for a fresh appointment of an arbitrator. Regrettably, should you not recuse yourself, the respondent shall seek the intervention of the High Court.”…,.

The first respondent did not respond to the challenge, but proceeded to make an award without first rejecting the challenge.

The applicant thereafter applied to this court for an order terminating the first respondent's mandate to arbitrate, and ordering that fresh arbitration proceedings be held within a fortnight.

The applicant is being represented by Mr Shoko, the Group Chief Executive of Trust Holdings Limited. The applicant is a subsidiary of Trust Holdings.

The first respondent did not oppose the application.

The second respondent opposed the application, and raised two points in limine:

(i)...,.

(ii) She also claimed that the applicant's application does not comply with the provisions of Article 13 of the Arbitration Act [Chapter 7:15] (hereinafter called “the Act”)....,.

Compliance with Article 13 of the Arbitration Act

Counsel for the second respondent also raised the issue of procedure arguing that the applicant's application does not comply with Article 13 of the Arbitration Act. He submitted, that, in terms of Article 13(1), the parties should have agreed on the procedure to be used in challenging the arbitrator. He also submitted that the notice of challenge was defective because no evidence was attached to it. He therefore argued that the application does not comply with the procedure through which a challenge to the arbitrator's appointment can be brought to this court.

He further submitted that the arbitrator has already made his award, and, in the circumstances, the applicant should have proceeded in terms of Article 34 of the Arbitration Act.

He submitted that the applicant could not apply to this court in terms of Article 13 of the Arbitration Act because the parties had not agreed on the procedure for challenging the arbitrator.

Counsel for the applicant argued that the application was properly made in terms of Article 13 of the Arbitration Act, as failure to agree on the challenging procedure is not a bar to any challenge arising from what happens during the arbitral proceedings. He further submitted that the letter to the first respondent contains all the information which should be in a statement of challenge and should therefore be accepted as a valid challenge to the arbitrator.

Article 13 of the Arbitration Act [Chapter 7:15] provides as follows:

“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of para (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in Article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of para (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the High Court to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”

The wording of paragraph (1) of Article 13 of the Arbitration Act favours counsel for the applicant's interpretation.

It states that the parties are free to agree on a procedure for challenging the arbitrator. It does not say that they have to.

It further states that the provision is subject to paragraph (3) of this Article. Article 13(3) mentions two procedures which can be used for challenging the arbitrator:

(i) They can use the agreed procedure; or

(ii) The procedure prescribed by paragraph (2). Article 13(2) provides for a procedure to be followed if the parties do not agree on a procedure to be followed. It specifically states that “failing such agreement, a party who intends to challenge an arbitrator shall…,.”

This means that paragraph (2) procedure is an alternative procedure to be used if the parties do not agree on the procedure to be used.

I would therefore agree with counsel for the applicant that the application does not depend on whether or not the parties agreed on the challenging procedure. It, in my view, depends on whether or not the applicant correctly followed the procedure prescribed by paragraph (2) of Article 13 of the Arbitration Act.

An analysis of Article 13(2) of the Arbitration Act reveals the requirements which should be complied with before a party can request this court to decide on a challenge. They are as follows:

1. The party who seeks to challenge the arbitrator must, within fifteen days of becoming aware of the reason for the challenge;

2. Send to the tribunal or arbitrator a written statement;

3. Stating the reasons for the challenge;

4. The challenged arbitrator can withdraw from his office, or the other party can agree to the challenge; and

5. If the arbitrator does not withdraw, and the other party does not agree with the challenge, then the arbitrator must decide on the challenge.

In terms of Article 13(3) of the Arbitration Act, the rejection of the challenge by the arbitrator leads to the following:

1. The challenging party may, if he is not satisfied by the rejection;

2. Within thirty days of the rejection, request the High Court;

3. To decide on the challenge.

While the challenge is pending in the High Court, the challenged arbitrator or tribunal can continue with the arbitral proceedings and make an award.

In this case, the arbitrator did not respond to the challenge, but proceeded to make an award without dealing with the challenge.

In terms of Article 13(2) of the Arbitration Act, he was bound to decide on the challenge.

Counsel for the applicant argued that, that entitles this court to hear the applicant's application.

Counsel for the second respondent argued that once the award is made it can only be set aside by the High Court in terms of Article 34(2)(b)(ii) of the Arbitration Act.

As already indicated, the procedure under Article 13(2) of the Arbitration Act does not require the parties to first agree on the challenging procedure. The words “failing such agreement” in Article 13(2) means in the absence of an agreement. The applicant's application cannot therefore be dismissed just because the parties had not agreed on the challenging procedure.

The application must however comply with the alternative procedure under Article 13(2) and (3) of the Arbitration Act, which requires the applicant to, within fifteen days of becoming aware of the circumstances on which the challenge is premised, to send a written statement to the tribunal in which the reasons for the challenge will be stated.

Counsel for the second respondent submitted that the applicant's statement was not accompanied by reasons for the challenge. Counsel for the applicant submitted that the letter the applicant wrote to the arbitrator satisfies the requirements of Article 13 of the Arbitration Act.

I agree with counsel for the applicant, as a reading of the Article gives the impression that what is required is a simple statement which informs the tribunal or arbitrator of the reasons why its or his recusal is being sought.

If the intention was for the challenging party to submit an application accompanied by an affidavit in which the reasons for recusal would be stated the legislature would have required the challenging party to apply for recusal instead of sending a statement.

The letter to the first respondent clearly states why his recusal was being sought. It therefore satisfies the requirements of Article 13 of the Arbitration Act. I am therefore satisfied that the applicant's application cannot be dismissed for failure to give separate reasons for the arbitrator's recusal.

On receipt of a challenge, the arbitrator can either withdraw from his office or decide on the challenge.

The other party can agree to the challenge in which case the arbitrator cannot proceed with the arbitration proceedings.

The tribunal or arbitrator cannot ignore the challenge and proceed with the arbitral proceedings as if its or his appointment has not been challenged.

If the challenge is not successful, the challenging party must, within thirty days of receiving the arbitrator's determination on the challenge, request the High Court to decide the challenge.

In this case, the applicant sent a statement of his challenge to both the arbitrator and the other party within the stipulated period. The other party did not agree, and the arbitrator did not respond.

Article 13(3) of the Arbitration Act does not provide for an application to this court until after the arbitrator has given the challenging party notice of his decision rejecting the request to recuse himself.

This therefore means the applicant's application does not comply with the provisions of Article 13(3) of the Arbitration Act [Chapter 7:15].

The Arbitrator has already made an award which the applicant wants to be declared null and void because of the alleged impartiality.

Article 13(2) and (3) of the Arbitration Act permits the arbitrator to continue with the proceedings in spite of the challenge which he will have rejected and the challenging party's request that the High Court determines the challenge.

In this case, he proceeded without first rejecting the applicant's challenge.

This was an irregularity on his part as Article 13(3) of the Arbitration Act allows an arbitrator to continue with the proceedings after notifying the challenger of the rejection of the challenge.

Counsel for the applicant submitted that the award should be set aside on the basis that it does not even deal with the challenge.

I agree with him that the arbitrator was required to deal with the challenge before proceeding with the proceedings before him, but, the issue in this case is whether or not the applicant is properly before this court.

This court can, in terms of Article 13(3) of the Arbitration Act, only decide on a challenge after its rejection by the arbitrator.

In this case, the failure by the arbitrator to reject the challenge before making the award makes the Article 13 procedure inapplicable, as this court can only be requested to intervene when the challenge has been rejected.

I am therefore satisfied that counsel for the second respondent's submission, that the applicant is not properly before this court, is correct.

The applicant is however not without a remedy.

Counsel for the second respondent correctly pointed out that in the circumstances of this case the applicant should have applied for the setting aside of the award in terms of Article 34(2)(b)(ii) of the Arbitration Act.

The applicant could ordinarily have taken the arbitrator's failure to decide on the challenge on review, but, Article 5 of the Arbitration Act [Chapter 7:15] provides that “no court shall intervene except where so provided in this Model Law.”

This means this court's intervention in terms of Article 13 of the Arbitration Act must be strictly in compliance with the provisions of that Article.

The Arbitration Act does not provide for review, and, Article 34(1) of the Arbitration Act provides that an application to set aside is the only available remedy.

Article 34(1) of the Arbitration Act [Chapter 7:15] provides as follows:

“Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paras (2) and (3) of this article.”

This means, in the circumstances of this case, an application in terms of Article 34(1) of the Arbitration Act is the only procedure through which the applicant can seek a remedy from this court.

Article 34(2)(b)(ii) of the Arbitration Act provides for the setting aside of the award on the ground that it is contrary to the public policy of Zimbabwe. Article 34(5) defines the circumstances under which an award can be said to be contrary to the public policy of Zimbabwe. It provides as follows;

“For the avoidance of doubt, and without limiting the generality of para (2)(b)(ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if -

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

The applicant's grounds for applying for the recusal of the first respondent, and the setting aside of his award, is that he heard submissions from the second respondent outside the arbitral proceedings.

That, if proved, would be contrary to the rules of natural justice and entitle the applicant to the setting aside of the award in terms of Article 34 of the Arbitration Act.

I am therefore satisfied that the applicant should, in the circumstances of this case, have applied for the setting aside of the award in terms of Article 34(2)(b)(ii) of the Arbitration Act. Its application, in terms of Article 13 of the Arbitration Act [Chapter 7:15] must therefore be dismissed.

In the result, the applicant's application is dismissed with costs.

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

In terms of Article 34 of the Model Law in the Arbitration Act, this court may set aside an arbitral award only on the grounds specified therein....,.I believe, that, in the same way as in they exercise their review powers, superior courts restrain themselves from unnecessarily interfering with the exercise ...

SC43-22 : LEGACY HOSPITALITY MANAGEMENT SERVICES LIMITED vs AFRICAN SUN LIMITED and HON. JUSTICE MTSHIYA (RTD) N.O.
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

Article 34 of the Model Law (Schedule to the Arbitration Act [Chapter 7:15]) prescribes the procedure for setting aside an arbitral award and the substantive grounds upon which it may be set aside by the High Court.

In terms of Article 34(2)(b) of the Model Law:

“An arbitral award may be set aside by the High Court only, if it finds that the subject matter or dispute is not capable of settlement by arbitration under the law of this country or the award is in conflict with public policy of Zimbabwe.”

Article 34(5) of the Model Law goes further to set out what would ordinarily be regarded as being contrary to public policy. It states:

“For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this article, it is declared that an award is in conflict with public policy of Zimbabwe if:

(a) The making of the award was induced or affected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

These provisions were considered in Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S) where the Court set out the approach to be adopted when considering whether an award is contrary to public policy.

GUBBAY CJ, at 465D, made the following remarks:

“In my opinion, the approach to be adopted is to construe the public policy defence, as being applicable to either a foreign or domestic award, restrictively, in order to preserve and recognise the basic objective of finality in all arbitrations, and to hold such defence applicable only if some fundamental principle of the law or morality or justice is violated.”

He further stated, at 466E-H:

“An award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or law. In such a situation, the court would not be justified in setting the award aside.

Under Article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision.

Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair-minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it.

The same consequence applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”...,.

This principle was emphatically enunciated by MALABA DCJ…, in Alliance Insurance v Imperial Plastics (Pvt) Limited & Anor SC30-17 wherein he stated…,.:

“The rationale behind the provision is that voluntary arbitration is a consensual adjudication process which implies that the parties have agreed to accept the award given by the arbitrator, even if it is wrong, as long as the proper procedures are followed. The courts therefore cannot interfere with the arbitral award except on the grounds outlined in Article 34(2). An application brought before the court under this provision is, in essence, a restricted appeal and the applicant should prove the grounds set out in order to succeed in its application.”

Appealed
SC27-22 : ZIMBABWE CRICKET vs HARARE SPORTS CLUB and ADVOCATE DANIEL TIVADAR (ARBITRATOR)
Ruled By: MALABA CJ, GUVAVA JA and MAVANGIRA JA

Article 34 of the UNCITRAL Model Law, First Schedule to the Arbitration Act [Chapter 7.15] provides as follows:“Application for setting aside as exclusive recourse against arbitral award(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) ...

Article 34 of the UNCITRAL Model Law, First Schedule to the Arbitration Act [Chapter 7.15] provides as follows:

“Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the High Court only if —

(a) The party making the application furnishes proof that —

(i) A party to the arbitration agreement referred to in Article 7 was under some incapacity, or, the said agreement is not valid under the law to which the parties have subjected it, or, failing any indication on that question, under the law of Zimbabwe; or

(ii) The party making the application was not given proper notice of the appointment of an arbitrator of the arbitral proceedings or was otherwise unable to present his case; or

(iii) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or

(iv) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Model Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Model Law; or

(b) The High Court finds, that —

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or

(ii) The award is in conflict with the public policy of Zimbabwe.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award, or, if a request had been made under Article 33, from the date on which that request had been disposed of by the arbitral tribunal.

(4) The High Court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside.

(5) For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this Article, it is declared that an award is in conflict with the public policy of Zimbabwe if —

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”...,.

In ZESA v Maphosa 1999 (2) ZLR 452 (S)..., it was stated that:

“Under Article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it.

The same consequence applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”

The position is settled, that, a party to arbitration cannot come to court because the arbitrator was wrong.

View Appeal
HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR
Ruled By: MATHONSI J

In terms of Article 34(2)(b) of the Model Law in the Arbitration Act [Chapter 7:15], an arbitral award may be set aside by this court only if the court finds that the subject matter of the dispute is not capable of settlement by arbitration under the law of this country ...

Article 34(5) of the Model Law goes further to set out what would ordinarily be regarded as being contrary to public policy. It states:

“For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this Article, it is declared that an award is in conflict with the public policy of Zimbabwe if:

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

In a line of cases, the courts have been very careful to interpret that provision narrowly, cognisant of the need to protect the principle of sanctity of contract.

After all, it is the parties who voluntarily submit to arbitration as an instrument for the speedy and cost effective means of resolving their dispute. The courts are therefore more inclined to deprecate conduct of a party intent on disrespecting the agreement by undermining the process of arbitration agreed upon by the parties....,.

As eloquently stated in Zesa v Maphosa 1999 (2) ZLR 452 (S)…,:

“Under Articles 34 and 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognize and enforce an award by having regard to what it considers should have been the correct decision.”

See also Delta Operations v Origen Corp (Pvt) Ltd 2007 (2) ZLR 81 (S)…,.; Provincial Superior Jesuit Province of Zimbabwe v Kamoto & Ors 2007 (2) ZLR 8 (3)…,.; Origen Corporation (Pvt) Ltd v Delta Operations (Pvt) Ltd 2005 (2) ZLR 349 (H)…,.; Decimal Investments (Pvt) Ltd v Arundel Village (Pvt) Ltd 2012 (1) ZLR 581 (H).

I agree with counsel for the applicant, that, an arbitrator is entitled to be wrong without attracting the setting aside of the award.

That view was expressed with silky eloquence by GARDINER J in Clark v African Guarantee and Indemnity Co. Ltd 1915 CPD 68…,.:

“The courts will always be most reluctant to interfere with the award of an arbitrator. The parties have chosen to go to arbitration instead of resorting to the courts of the land, they have specially selected the personnel of the tribunal, and they have agreed that the award of the tribunal shall be final and binding.

As Halsbury LC said in Holmes Oil Co. v Pumpherston Oil Co. Court of Sess R 18 at 53:

'One of the advantages that people are supposed to get by reference to arbitration is the finality of the proceedings when the arbitrator has once stated his determination. They sacrifice something for that advantage.

They sacrifice the power to appeal.

If, in their judgment, the particular judge whom they have selected has gone wrong in point of law or in point of fact, they have no longer the same wide power to appeal which an ordinary citizen prosecuting his remedy in the courts of law possesses, but, they sacrifice that advantage in order to obtain a final decision between the parties. It is well-settled law, therefore, that when they have agreed to refer their difficulties to arbitration, as they have here, you cannot set aside the award simply because you think it is wrong.'”

See also Kolber & Anor v Sourcecom Solutions (Pty) Ltd & Ors; Sourcecom Technology Solutions (Pty) Ltd v Kolber & Anor 2001 (2) SA 1097…,.

The views expressed in the foregoing authorities were endorsed by the South African Supreme Court of Appeal in Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266. HARMS JA stated at 302A:

“An arbitrator 'has the right to be wrong' on the merits of the case, and, it is a perversion of language and logic to label mistakes of this kind as a misconception of the nature of the inquiry; they may be misconceptions about meaning, law, or the admissibility of evidence but that is a far cry from saying that they constitute a misconception of the nature of the inquiry.”

Pursing the same line of reasoning, that, it does not matter that the arbitrator may have misinterpreted the agreement, failed to apply the law correctly, or had regard to inadmissible evidence, the learned Judge of Appeal stated at 302D-E:

“Likewise, it is a fallacy to label a wrong interpretation of a contract, a wrong perception or application of South African law, or an incorrect reliance on inadmissible evidence by the arbitrator as a transgression of the limits of his power. The power given to the arbitrator was to interpret the agreement rightly or wrongly; to determine the applicable law, rightly or wrongly; and to determine what evidence was admissible, rightly or wrongly…,. To illustrate, an arbitrator in a 'normal' local arbitration has to apply South African law, but, if he errs in his understanding or application of local law the parties have to live with it.”

That position is settled; a party to arbitration cannot come to court because the arbitrator was wrong.

The court will only interfere with an award which is not just wrong, but, where the reasoning or conclusion goes beyond mere faultiness or incorrectness but can be regarded as constituting a palpable inequity so far-reaching and so outrageous in its defiance of logic or acceptable moral standards as to cause a fair-minded person to regard it as unbearably hurting all sense of justice and fairness.

In my view, the authorities set a very high threshold for the court to interfere.

It is certainly not enough that a party does not agree with the decision of the arbitrator and would rather have a re-assessment of the dispute.

That is not what Articles 34 and 36 of the Model Law are intended for.

Appealed
HHHH262-10 : ZIMBABWE POSTS (PVT) LTD vs COMMUNICATION AND ALLIED SERVICES WORKERS UNION OF ZIMBABWE
Ruled By: MUTEMA J

This application is redolent with irregularities. This, understandably, constrained the respondent to raise a number of points in limine praying for its dismissal.

The irregularities complained of, which were not fully conceded by the applicant, are these:

1. The application does not comply with Rule 227(3) in that when it was filed, it did not contain a draft of the order sought;

2. It offends against Rule 227(2)(d) in that it has more than five (5) pages but does not have an index attached;

3. It is unclear whether the application is being brought in terms of Order 32 (Ordinary Court Application) or in terms of Order 33 (an Application for Review). The applicant has prefaced its founding papers with a document titled 'Court Application' and another titled 'Application for Review' both prepared by the applicant's legal practitioners on 4 May 2010 and filed on 17 May 2010.

3. If it be taken as an application for review, it is fraught with deficiencies in that it fails to comply with Rule 256, Rule 257 and Rule 259 by not citing the arbitrator whose award is sought to be reviewed, by not stating shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected, and, by not having been filed within the stipulated eight (8) week period. Further, this Court does not have review jurisdiction in respect of arbitration proceedings.

On the basis of the foregoing alleged irregularities, the respondent moved the court to dismiss the application with costs on a higher scale.

The gravamen of the application is essentially for the setting aside of an arbitral award.

The applicant's legal practitioner, while making half-hearted concessions in respect of the above cited irregularities through skilful manipulation that is not taught in law school but acquired naturally thereafter, endeavoured to persuade the Court to invoke Rule 4C(a) and condone the departure from the provisions of the Rules flouted.

Regarding the non-attachment of the draft order, he insisted that one was attached to the application. He submitted that in any event, when the objection pertaining thereto was raised in the respondent's opposing affidavit, one was attached to the answering affidavit in case the respondent was truthful in objecting.

I am not persuaded that the respondent would have been that naive to raise an objection of this nature merely for the “heck” of it if such documents were attached. If that were the sole flouting of the Rules, the Court would not have any difficulty in invoking Rule 4C(a).

There are numerous others which are more material.

As regards the non-indexing of the application, this was conceded with the qualification that it was subsequently cured by the filing of a consolidated index thereby rendering the initial non-indexing irrelevant.

He asked the Court to invoke Rule 4 and condone the departure from the provisions of the Rules in the interests of justice.

For the same reason given when dealing with the non-filing of the draft order supra, I am not persuaded to condone.

Over and above that, that consolidated index being alluded to was not prepared by the applicant's legal practitioners but by the respondent's legal practitioners, ex mero motu, who are not the dominus litus.

Regarding the issue that the application was made using the wrong form of review instead of in terms of Article 34(2) of the Model Law in terms of the Arbitration Act [Chapter 7:15], the legal practitioner conceded the error and attributed it to a genuine but mistaken belief of law on his part.

This, quite apart from being utterly footling at law, for lawyers are presumed to know the law, the alleged mistake of law is so gross and persistent as to render it not only not genuine but inexcusable.

Here is a terse recital of the legal practitioner's blunders of the law which culminated in the one at hand:

(a) In what is titled 'Application For Review' (p3), it is stated:

“TAKE NOTICE THAT on a date to be set by the Registrar, an application will be made for the review of an arbitrary (sic) award made by the Honourable Mr Mordecai P. Mahlangu on the 23rd of February 2010 but received by the applicant on 3 March 2010…, on the following grounds.”

Six grounds for the review are then enumerated.

The founding affidavit clearly deals with an application for review.

In spite of being alerted to the irregularities alluded to supra by the respondent in the opposing affidavit, including the wrong form of the application, the applicant did not “reck”. It remained obdurate in its answering affidavit that the application for review was the proper one.

In paragraphs 4.1 to 4.3:

“4.1 The long and short of it all is that this is a Court Application for review. This is quite apparent on the papers. The document says it's a Court Application and the other defines it as one for review. No magic is required to discern this much.

4.2 The basis for the application for review could not have been stated in better terms than what it is in the founding affidavit. In summary and in simple terms, the award is being challenged on the grounds that it is contradictory, it is unreasonable, and it offends against public policy.

4.3 Citing the Arbitrator as a party to the proceedings is not a rule cast in concrete. Such non-joinder is not fatal to the proceedings….,.”

In paragraph 5.1 the applicant reiterates that the application was one for review by averring:

“Again, I should emphasis (sic) that there is no magic in how the grounds for review should be stated as long as they are stated with sufficient clarity to enable the Court to appreciate their substance.”…,.

In paragraph 6 of the answering affidavit, the applicant attempts to defend why the review application was filed outside the required eight (8) week period.

It avers that it first filed an application for review in the Labour Court within the eight (8) week period and alleges that a copy of that application is attached marked 'A'.

However, no such copy is attached!

After being awakened to the fact that only the High Court had exclusive jurisdiction to set aside an arbitral award made in terms of the Arbitration Act, by way of application, it then withdrew that application from the Labour Court. It alleges also that a copy of such withdrawal is attached marked 'B'.

Again, no such copy is attached!

In paragraph 7.1 the applicant avers that it believed that “respondent is wrong in its view that the High Court has no review jurisdiction in respect of arbitration proceedings;” and in paragraph 8.2 the applicant alleges that “our Courts have dealt with applications for setting aside such awards as ones for review.”

The foregoing recital displays what I may call an orgy of legal blunders on the part of the applicant's legal practitioner.

At the hearing, while conceding that this application should not have been brought by way of review, counsel for the applicant submitted, that, this Court is perfectly entitled to condone the use of the incorrect form of application seeking to rely on the case of Moyo v Forestry Commission 1996 (1) ZLR 173 (a case not cited in his Heads of Argument).

That case does not support the applicant's cause because it was overturned on appeal in the case of Forestry Commission v Moyo 1997 (1) ZLR 254.

In the earlier case, the point had been made in limine that a wrong procedure had been used and that the decision complained of should have been brought on review instead of an ordinary court application. The court a quo had held that the relief susceptible to review could be granted even though the proceedings had not been brought under the review procedure provided in the Rules. The court had also condoned the delay of over two (2) years, although there had been no application for condonation or explanation for the delay. The reason for so doing was that the decision to dismiss the respondent from employment was null and void because of gross procedural irregularities by the disciplinary enquiry, and so, to dismiss the application would constitute a failure to redress an injustice.

The Supreme Court, in overturning the decision of the court a quo, held inter alia, that, though the rules of court are not an end in themselves, to be slavishly applied for their own sake, they are there to regulate the practice and procedure of the High Court, and, in general, strong grounds would have to be advanced to persuade the court or judge to act outside them.

In casu, have strong grounds been advanced to persuade the court to act outside the Rules?

The answer must be perfectly in the negative. The orgy of legal blunders recited supra speaks for itself and admits of no other answer.

In spite of it having been pointed out that a wrong format has been employed in the launch of this application, the applicant persevered undaunted in its argument in futility that the application was one for review and that 'no magic is required to discern this much' and that the High Court has 'review jurisdiction in respect of arbitration proceedings.'

It was only in the applicant's Heads of Argument that the legal practitioner made an unexplained about turn stating that the application is one in terms of Article 34 of the Model Law, a review sui generis to be understood as one for setting aside in terms of Article 34(2)(b)(ii).

Article 34(2)(b)(ii) of the Model Law provides, that, the High Court can only set aside an arbitral award if it finds that the award is in conflict with the public policy of Zimbabwe.

The mere fact that the arbitral award is alleged to be 'in conflict with the public policy of Zimbabwe' as one of the grounds for review in the application per se does not imbue the review application with the nuance to transform it into an application in terms of Article 34 of the Model Law.

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 case, bear useful repetition for clarity. She said:

“It is contended for the appellants, that, they were perfectly within their rights to file an application for review/setting aside of the decision of the arbitrator in terms of Order 33 Rule 256 of the High Court Rules since there is nothing in that Rule which precluded them from bringing such an application.

This contention, I find, has no validity.

As discussed below, the Model Law, in its Article 34(1), makes it clear that recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) thereof. Specifically, the relevant provision reads as follows:

'ARTICLE 34 Application for setting aside an exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paras (2) and (3) of this article.'…,.

The use of the words 'exclusive' and 'only' in my view suggest that there is to be no compromise when it comes to an attempt to have an arbitral award set aside. The application must be made in terms of the provision cited. That provision quite simply and effectively precludes the applicants from filing their application for the setting aside of an arbitral award otherwise than in terms of paras (2) and (3) of Article 34.”

Further, the learned Judge of Appeal also found that the contention that there is nothing in Order 33 Rule 256 of the High Court Rules that prevented them from making the application in question under that Order was misplaced.

Article 34 of the Model, being part and parcel of a statute, the Arbitration Act, should hold dominance over Order 33 of the High Court Rules, which is subsidiary legislation.

In any case, so the learned Judge found, the purported application in question failed to satisfy even the provisions of Order 33.

Rule 256 of Order 33 makes it imperative by the use of the word “shall” for an applicant to “direct” his application to the person whose decision is to be reviewed, as well as to all other parties affected.

In the instant case, the application, as already pointed out above, was one for review of the arbitral award up until the stage of the applicant's Heads of Argument when a u-turn was made in a vain endeavour to clothe it with a semblance of one made in terms of Article 34 of the Model Law.

Indeed, the respondent avers that there is even an application before this court, in Case No.4120/10, seeking condonation for late filing of the review.

I did not hear the applicant to dispute this assertion.

It goes without quarrel that a wrong form for this application was adopted.

Even assuming that the application were permissible in terms of Order 33 of the High Court Rules, it would still fail to scale the insurmountable difficulty besetting it for flagrantly flouting provisions of Order 33.

Rule 256 of Order 33 makes it imperative by the use of the word “shall” for an applicant to “direct” the application to, inter alia, the person whose decision is to be reviewed, viz the arbitrator.

This omission to cite the arbitrator is fatal to a review application.

The applicant in casu did not cite the arbitrator.

In paragraph 4.3 of its answering affidavit, the applicant lamely tried to defend this omission saying “citing the Arbitrator as a party to the proceedings is not a rule cast in concrete. Such non-joinder is not fatal to the proceedings. In any event, the relief sought is against the respondent only.”

This argument does not hold water for it merely amounts to digging in the ashes.

Further, a review application in casu would also have been hamstrung by it being lodged outside the eight (8) week period permitted by the Rules.

It also does not state shortly and clearly the grounds for review.

In the result, on the totality of the numerous fundamental irregularities alluded to supra, I am satisfied that the application was improperly brought and is ill-conceived. I have no option but to dismiss it with no need to delve into the merits, with costs on the scale of legal practitioner and client.

It also behoves me to remark that I hope that Mr Kwaramba will not charge his client any fees regarding this aborted application.

View Appeal
SCSC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

As a result of runaway inflation and the sliding value of the local currency, in February 2009 the Government of Zimbabwe adopted the multi-currency regime as a mode of conducting financial transactions.

Salaries that had been pegged on the local currency lost buying power in the hands of the recipients. It became necessary to re-negotiate salaries and benefits across the board with the unions representing the appellant's employees.

In casu, the parties were unable to agree on a minimum wage and allowances. It was resolved to submit the dispute to voluntary arbitration through the Commercial Arbitration Centre.

On 13 January 2010, the Commercial Arbitration Centre in Harare appointed M.P. Mahlangu ('the arbitrator') to arbitrate the dispute between the parties.

After hearing the parties, on 23 February 2010 the arbitrator issued an award in the following terms:

“For the period between 1 May and 31 August 2009, the salary of the lowest earning employee of the respondent company should receive an adjustment of US$25 in respect of each month, and for the period between 1 September and 31 December 2009 a further US$25 adjustment should be effected. The effect of this on the lowest earning employee of the respondent is that, in total, the back-pay payable to him or her will be US$300.

In doing this, I realise that further financial strain will be added to the respondent but believe that this is necessary in fairness to the claimant.”…,.

The appellant was aggrieved by the award, and, on 17 May 2010 it filed a Court Application in the High Court.

Attached to the court application, under separate cover, was what was termed an Application For Review. One of the grounds upon which the review was sought was “that the arbitral award was in conflict with the public policy of Zimbabwe.”…,.

The respondent filed papers in opposition in which it raised a number of preliminary issues on alleged procedural irregularities appearing on the papers.

When the matter was heard, the High Court upheld the objections raised by the respondent, and, on 1 December 2010 the court a quo dismissed the application without determining the merits of the dispute.

This appeal is against the dismissal.

In the court a quo, the respondent relied on the following points in limine:

1. That, the application was fatally defective in that it was not clear whether or not it was a court application or an application for review;

2. That, in the event that it was an application for review, the application did not comply with the provisions of Order 33 of the rules of the High Court and the court should find that it was filed out of time;

3. That, if it was a review the arbitrator ought to have been cited as a party to the proceedings;

4. That, in any event, an arbitral award is not subject to review and the High Court lacks the jurisdiction to review an arbitral award outside the provisions of the Arbitration Act [Chapter 7:15] (the “Act”).

In upholding the preliminary issues, the learned judge in the court a quo said:

“In the instant case, the application, as already pointed out above, was one for review of the arbitral award up until the stage of the applicant's Heads of Argument when a u-turn was made in a vain endeavour to clothe it with a semblance of one made in terms of Article 34 of the Model Law. Indeed, the respondent avers that there is even an application before this Court in Case No. HC4120/10 seeking condonation for the late filing of this review.

I did not hear the applicant to dispute this assertion. It goes without quarrel that a wrong form for this application was adopted.

Even assuming that the application was permissible in terms of Order 33 of the High Court Rules, it would still fail to scale the insurmountable difficulty besetting it for flagrantly flouting provisions of Order 33.

Rule 256 of Order 33 makes it imperative by the use of the word 'shall' for an applicant to 'direct' the application to, inter alia, the person whose decision is to be reviewed, viz, the arbitrator.

The applicant in casu did not cite the arbitrator. This omission is fatal to a review application.

In para 4.3 of its answering affidavit, applicant lamely tried to defend this omission saying 'citing the arbitrator is not a rule cast in concrete. Such non-joinder is not fatal to the proceedings. In any event, the relief sought is against the respondent only.'

Further, an application for review in casu would also have been hamstrung by being lodged outside the 8 week period permitted by the rules.

The application does not comply with the requirements for an application for review in that it does not state, shortly and clearly, the grounds upon which an application for review would be sought in terms of Order 33 of the Rules of the High Court.”

The criticism that the learned judge in the court a quo placed more emphasis on form rather than substance cannot be denied.

It is true that the format adopted in launching the application does indeed cause confusion.

The applicant appears to have merged two applications into one. There is a court application to which is annexed an application for review, thus creating the impression that the applicant to the process is not confident of what form the intended proceedings should take.

Nevertheless, the application for review lists as one of the grounds of the application that the arbitration award was in conflict with the public policy of Zimbabwe.

That is a ground for review which is peculiar to the Arbitration Act, and, in particular, Article 34(2)(b)(ii) of the Model Law incorporated in the Arbitration Act.

To show the confusion under which the appellant's counsel was labouring under; in the answering affidavit, it is averred that the application is one for review in terms of the said Rules.

It was only in the heads of argument that reference was made to the Model Law.

Notwithstanding reliance by the appellant on the Model Law as a basis for the application, the court a quo was persuaded to find, that, what was before it was an ordinary review which had been brought in defiance of the provisions of Order 33 of the rules of the High Court.

Order 33 does not set out the grounds upon which a review may be launched. It merely sets out the form an application should take and sets out time limits for bringing such application.

The grounds upon which a review may be brought are set out in the High Court Act [Chapter 7:06], in particular section 27 thereof which reads in relevant part:

“27 Grounds for Review

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal, or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals, or authorities.”

An examination of the additional grounds upon which the applicant sought reliance for relief points to those grounds as being an amplification of the first ground rather than grounds of review under Order 33 of the rules of the High Court.

None of those grounds are such as contemplated by the High Court Act as being grounds upon which the court could set aside any decision on the basis of its powers of review.

The conclusion by the court a quo, to the effect that what was before it was an ordinary review was therefore a misdirection.

The issue that begs an answer is: how the court a quo should have dealt with the matter given the apparent confusion that had been created by the appellant in settling its papers.

An application must be disposed of on the basis of the founding affidavit.

The only ground for review referred to in the affidavit is that the award is contrary to the public policy of Zimbabwe.

Granted, there is an averment within the affidavit to the effect that the decision of the arbitrator was irrational, but, the statement is made in the context of justifying the claim that the award was in conflict with the law.

The court a quo overlooked the dicta in ZESA v Maposa 1999 (2) ZLR 452 (S) wherein GUBBAY CJ stated…,.:

“Certainly, for some reason not easy to comprehend, the application purported to be in the nature of a review to the High Court rather than one brought pursuant to Article 34(2)(b)(ii) of the Model Law. Consequently, the ground justifying an order that the award be set aside was specified as 'gross unreasonableness in the decision arrived at.'

However, one of the particulars given of such unreasonableness was that the arbitrator had erred 'in holding that ZESA did not comply with section 13(2) of the code of conduct.'

This was to be read in conjunction with the earlier explanatory statement of the Chief Executive, that, the application in which Maposa sought an order that the looming disciplinary proceedings be held before an independent arbitrator as opposed to the disciplinary committee of the Board, caused such proceedings to be stayed.

When so viewed, it seems to me that the complaint, by implication, sets out the factual basis for the application to set aside the award as a breach of Article 34(2)(b)(ii). This is how the learned judge understood the contention, and, I do not think he was wrong. Accordingly, I am not persuaded that the objection raised is valid.”

In my view, these remarks apply with equal force to the facts of this case.

The facts, as contained in the founding affidavit, cried out for the setting aside of the award on the basis that it was contrary to the public policy of Zimbabwe.

Here, rather than an implication of the relief being sought, there was a statement identifying the basis upon which the award was being challenged. There was no need for further amplification, and, the fact that the applicant thereto described the application as one for a review to the High Court did not change the substance of what it was.

The applicant might have been confused as to the form that it was meant to take, but, the legal principle upon which the award was challenged was clearly stated and identified in the founding papers.

The heads of argument filed in support of the application state clearly and succinctly, that, the challenge to the award was predicated on the ground that recognition of the award would be contrary to the public policy of Zimbabwe.

The essence of the application was not lost upon the learned judge who commented that “…, the gravamen of the application is essentially for the setting aside of an arbitral award.”…,.

It becomes obvious that the learned judge understood the contention of the application and premise upon which it had been brought. It is then difficult to fathom the rationale for refusing to entertain the same on the premise that it was a review to the High Court.

The view I take is that there was no application for review before the court a quo. What was filed was an application to set aside an arbitral award under the Model Law.

It was for these reasons that we allowed the appeal and issued an order in the following terms:

“It is ordered that:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside.

3. The matter is remitted for a determination on the merits by the same judicial officer.”

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Review re: Arbitration Proceedings

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

HH62-11 : LANCASHIRE STEEL (PRIVATE) LIMITED vs TONDERAI ZISENGWE and 430 OTHERS and THE DEPUTY SHERIFF N.O. KWEKWE
Ruled By: BERE J

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

SC13-13 : BEITBRIDGE BULAWAYO RAILWAY COMPANY vs ZIMBABWE AMALGAMATED RAILWAY UNION and ARBITRATOR GLADYS MPEMBA
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

View Appeal
SC20-18 : VENGESAI CHIRASHA vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

SC43-22 : LEGACY HOSPITALITY MANAGEMENT SERVICES LIMITED vs AFRICAN SUN LIMITED and HON. JUSTICE MTSHIYA (RTD) N.O.
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

Appealed
SC27-22 : ZIMBABWE CRICKET vs HARARE SPORTS CLUB and ADVOCATE DANIEL TIVADAR (ARBITRATOR)
Ruled By: MALABA CJ, GUVAVA JA and MAVANGIRA JA

View Appeal
HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR
Ruled By: MATHONSI J

Appealed
HHHH262-10 : ZIMBABWE POSTS (PVT) LTD vs COMMUNICATION AND ALLIED SERVICES WORKERS UNION OF ZIMBABWE
Ruled By: MUTEMA J

View Appeal
SCSC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

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Law Portal Zimbabwe

Review re: Arbitration Proceedings

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN Ruled By: GOWORA J

HH62-11 : LANCASHIRE STEEL (PRIVATE) LIMITED vs TONDERAI ZISENGWE and 430 OTHERS and THE DEPUTY SHERIFF N.O. KWEKWE Ruled By: BERE J

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

SC13-13 : BEITBRIDGE BULAWAYO RAILWAY COMPANY vs ZIMBABWE AMALGAMATED RAILWAY UNION and ARBITRATOR GLADYS MPEMBA Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

View Appeal SC20-18 : VENGESAI CHIRASHA vs NATIONAL FOODS LIMITED Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA Ruled By: UCHENA J

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR Ruled By: MAFUSIRE J

SC43-22 : LEGACY HOSPITALITY MANAGEMENT SERVICES LIMITED vs AFRICAN SUN LIMITED and HON. JUSTICE MTSHIYA (RTD) N.O. Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

Appealed SC27-22 : ZIMBABWE CRICKET vs HARARE SPORTS CLUB and ADVOCATE DANIEL TIVADAR (ARBITRATOR) Ruled By: MALABA CJ, GUVAVA JA and MAVANGIRA JA

View Appeal HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR Ruled By: MATHONSI J

Appealed HHHH262-10 : ZIMBABWE POSTS (PVT) LTD vs COMMUNICATION AND ALLIED SERVICES WORKERS UNION OF ZIMBABWE Ruled By: MUTEMA J

View Appeal SCSC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

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HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

HH62-11 : LANCASHIRE STEEL (PRIVATE) LIMITED vs TONDERAI ZISENGWE and 430 OTHERS and THE DEPUTY SHERIFF N.O. KWEKWE
Ruled By: BERE J

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

SC13-13 : BEITBRIDGE BULAWAYO RAILWAY COMPANY vs ZIMBABWE AMALGAMATED RAILWAY UNION and ARBITRATOR GLADYS MPEMBA
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

View Appeal
SC20-18 : VENGESAI CHIRASHA vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

SC43-22 : LEGACY HOSPITALITY MANAGEMENT SERVICES LIMITED vs AFRICAN SUN LIMITED and HON. JUSTICE MTSHIYA (RTD) N.O.
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

Appealed
SC27-22 : ZIMBABWE CRICKET vs HARARE SPORTS CLUB and ADVOCATE DANIEL TIVADAR (ARBITRATOR)
Ruled By: MALABA CJ, GUVAVA JA and MAVANGIRA JA

View Appeal
HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR
Ruled By: MATHONSI J

Appealed
HHHH262-10 : ZIMBABWE POSTS (PVT) LTD vs COMMUNICATION AND ALLIED SERVICES WORKERS UNION OF ZIMBABWE
Ruled By: MUTEMA J

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SCSC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA