STARAFRICACORPORATION LIMITED

versus

SIVNET INVESTMENTS (PRIVATE) LIMITED

and

PORTHILL INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

PATEL J

Opposed Application

HARARE, 9 June 2011 and 13 September 2011

A.P. de Bourbon andD. Ochieng, for the applicant

E. Morris, for the respondents

            PATEL J:        In Case No. HC 4174/10, the applicant in this matter filed for the review and setting aside of an arbitral award rendered in arbitration proceedings between the parties. The award was made on 26 May 2010 and the application for review was filed on 21 June 2010. There were delays in confirming and preparing the record of those proceedings for various reasons. The applicant now seeks condonation for the late filing of the arbitral record to enable the review proceedings to continue.

            The respondents oppose this application. They contend that there was no need for the arbitral record to have been confirmed by the parties. The applicant should have simply attached the bundle of documents constituting the record to its founding affidavit in Case No. HC 4174/10. Because of the consequent absence of any arbitral record before this Court, the application for review must fail. Moreover, the Court cannot condone the late filing of the record as it should have been attached to the applicant’s founding affidavit and identified ab initio.

            In response, the applicant avers that the arbitrator (Muchadeyi Masunda) was initially asked to prepare and lodge the arbitral record, in terms of Rule 260(1) of the High Court Rules 1971. He declined to do so and it therefore became necessary to have the record agreed for practical purposes, because of its sheer volume of over 400 pages. The respondents initially gave the impression of their willingness to confirm the record but subsequently declined to do so. The record was eventually filed on 29 September 2010 and the present application was made on 8 October 2010. The belated lodging of the record should be condoned by way of interlocutory relief so that the review application can be heard on its merits.

The Submissions

            Adv. de Bourbon submits that an application for review under Article 34 of the Model Law requires a record of the arbitral proceedings under scrutiny. Such record would consist of a transcript of the evidence lead and the documents filed before the arbitral tribunal. Only the arbitrator can produce a full record of the arbitration proceedings. He further submits that the respondents’ opposition to the present application is an exercise in sterile formalism. They would not suffer any prejudice if the record filed by the applicant is accepted for the main review application.

            Adv. Morris concedes that there would be no prejudice to the respondents if the record were to be admitted. However, he takes the point that the main application in Case No. HC 4174/10 is a nullity by virtue of the decision in Mtetwa & Another v Mupamhadzi 2007 (1) ZLR 253 (S) at 254F-255C and 256B-C. It was held by the Supreme Court in that case that any challenge to an arbitral award must be made in terms of Article 34 of the Model Law exclusively. It cannot be made by way of review under Order 33 of the High Court Rules 1971. The main application and its founding affidavit refer simply to an application for review, without making any mention of Article 34. The main application therefore constitutes a nullity and, as was affirmed in Mtetwa’s case at 255G-256B, it cannot be extended or amended beyond the 3 months period stipulated in the Model Law. Consequently, the present application for condonation is futile and must fail.

            In reply, Adv. de Bourbon accepts that an arbitration award can no longer be challenged or set aside using common law review proceedings. He also accepts that the main application refers to an application for the review of the arbitral award in casu. However, he points out that both in the main application and in its founding affidavit it is specifically stated that the award is in conflict with public policy as well as being grossly irregular. Therefore, he submits that the main application was in fact made under Article 34 of the Model Law and not Order 33 of the Rules.

Setting Aside of Arbitral Awards and Proceedings for Review

Article 34 of the Model Law (Schedule to the Arbitration Act [Chapter 7:15]), in its relevant portions, 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.

(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 or 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 …; or

(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, … 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) ………….

(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.”

            As was recognised by the Supreme Court in Mtetwa’s case (supra) at 254F-255C, the use of the words “exclusive” and “only” in Article 34 make 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) of Article 34. Gwaunza JA proceeded to hold that this provision “quite simply and effectively precludes” any application for the setting aside of an arbitral award “otherwise than in terms of paras (2) and (3) of Article 34”. She fortified that position by noting, at 256B-C, that “Article 34 is part and parcel of a statute, the Arbitration Act, and should therefore hold dominance over Order 33 of the High Court Rules, which is subsidiary legislation”.

            While I am in general agreement with the views expressed by her Ladyship, it seems to me, with the greatest respect, that the Court might have overlooked certain aspects of the relationship between Article 34 of the Model Law and the High Court Rules. The principal object of paragraph (1) of Article 34 is to ensure the finality of arbitration proceedings by defining and restricting the scope of challenges to arbitral awards. This is achieved by stipulating that any such challenge may be made only by an application for setting aside in accordance with paragraphs (2) and (3). Paragraph (2), as amplified by paragraph (5), sets out the substantive grounds upon which an arbitral award may be set aside. Paragraph (3) prescribes the time limit within which such an application must be made. Apart from this, Article 34 says nothing more about the procedure governing an application for setting aside.

Part V of the High Court Act [Chapter 7:06] deals with the review powers of this Court. Section 26 of the Act restates the inherent common law power of review as follows:

“Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”

            Section 27 elaborates the traditional grounds for review in the following terms:

“(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.”

            Also relevant for present purposes is section 28 which sets out the Court’s powers on review of civil proceedings and decisions:

“On a review of any proceedings or decision other than criminal proceedings, the High Court may, subject to any other law, set aside or correct the proceedings or decision.”

            The procedure governing reviews under the Act is provided for in Order 33 of the High Court Rules 1971. Rule 256 states thatproceedings for review shall be by way of court application directed and delivered to all the affected parties. Rule 257 requires that the court application must state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for. Apart from this, in terms of Rule 258, the application procedure set out in Order 32 shall apply to any application for review. Lastly, by virtue of Rule 259, any proceedings by way of review must be instituted within 8 weeks, subject to the possibility of that time being extended for good cause shown.

            Reverting to Article 34 of the Model Law, the challenge envisaged under that provision is not one on the merits of the arbitral award in question. It is essentially a species of review of the arbitration proceedings and resultant award. The differences between an application under Article 34 and review proceedings generally are fairly obvious. Firstly, the interventionary powers of the High Court are confined to setting aside the impugned award and do not extend to any other corrective measure. Secondly, the time limit for a review application is 8 weeks, subject to extension for good cause, while the period stipulated under Article 34(3) is 3 months, without the possibility of extension. See Mtetwa’s case (supra) at 255G-256B. Apart from these procedural distinctions, the substantive grounds for setting aside an award, in terms of Article 34(2) as read with Article 34(5), are virtually the same as the grounds for review under common law and the High Court Act. Moreover, as I have stated earlier, Article 34 does not contain any procedural detail regulating an application for setting aside. The requisite provisions are set out in Order 32 of the Rules relating to applications generally, which provisions also apply to the conduct of review proceedings under Order 33. I would also add that although Order 33 is unquestionably subsidiary legislation, as was noted in Mtetwa’s case (supra) at 256B-C, its fundamental objective is to prescribe the procedure to be applied in the exercise of review powers embodied in its parent statute, the High Court Act.

            The thrust of all of the foregoing is that the procedural exigencies of the Model Law should not be seen as being in conflict with the High Court Rules. Rather, Article 34 should be construed and applied in conjunction and conformity with the Rules, including Order 33, which should be treated as a complementary adjunct to the application contemplated by Article 34. If this is correct, Article 34(1) does not exclude or preclude an application for the setting aside of an arbitral award by way of review proceedings under Order 33, provided such application is in accordance with Articles 34(2) and (3), viz. premised on one or more of the grounds enumerated in Article 34(2) and (5), and made within the 3 months time limit stipulated by Article 34(3).

Disposition

            Inasmuch as I am bound by the decision in Mtetwa’s case (supra), the above dicta can be no more than obiter, for future consideration should that decision be revisited by the Supreme Court. In the instant case, the unavoidable proposition of law that must apply is that an arbitration award cannot be challenged or set aside by way of review proceedings. Nevertheless, I do not perceive this to be an impediment to the relief sought by the applicant for the following reasons.

            It is common cause that the main application was lodged within 4 weeks after the arbitral award in casu was made. This is a feature that distinguishes the present matter from the untimely application in Mtetwa’s case (supra). It is also not in dispute that the main application sought the setting aside of the arbitral award by way of review. In fact, it makes three references to the review of the award. However, in paragraph 1 of the application, it is specifically stated that the award is in conflict with the public policy of Zimbabwe. This averment is repeated in paragraph 11 of the founding affidavit, where it is also alleged that the award was grossly irregular. Conflict with public policy is not a traditional ground of review but a specific ground for recourse under Article 34(2)(b)(ii). Again, gross irregularity constitutes a breach of the rules of natural justice, which is also recognised as a ground for recourse under Article 34(5)(b). Having regard to all of these indicia, I am satisfied that, both in intention and effect, the main application was made under Article 34 of the Model Law and not Order 33 of the High Court Rules. I am further satisfied that it was made in substantial compliance with the requirements of Article 34(1) inasmuch as it was instituted for the setting aside of the arbitral award in accordance with Article 34(2) and (3). It should therefore proceed to be heard on the merits on the basis of the record prepared by the applicant and not objected to by the respondents.

In arriving at these conclusions, I take heed of the point that is often made that procedural rules are fashioned so as to be flexible tools, adaptable to meet particular needs and circumstances. See Nxasana v Minister of Justice & Another 1976 (3) SA 745 (D&CLD) at 751G-H. In this regard, the courts should eschew resort to formalism and apply procedural rules so as to secure the inexpensive and expeditious completion of litigation before them. See Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654C-D. In short, I am inclined to agree with Adv. De Bourbon that the respondents’ opposition to the interlocutory relief sought herein propounds no more than sterile formalism (see Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A) at 663D) and should be rejected on that account.

            In the result, the applicant is entitled to the relief that it seeks, including the costs of instructing two counsel. It is accordingly ordered that:

1. The late filing of the record in Case No. HC 4174/2010 be and is hereby condoned.
2. The respondents pay the costs of this application, including the costs of two counsel.

Coghlan Welsh & Guest, applicant’s legal practitioners

Atherstone & Cook, respondents’ legal practitioners