AFRICAN STRATEGIC METALS PLC v CHIKUTIRO and ANOTHER (415 of 2025) [2025] ZWHHC 415 (11 July 2025)

1 HH 415 - 25 HCH 6254/23 AFRICAN STRATEGIC METALS PLC versus DESIRE CHIKUTIRO and MISHECK MUFARI HIGH COURT OF ZIMBABWE KATIYO J HARARE; 28 May 2025 & 11 July 2025 Opposed Chamber Application for Registration of Arbitral Award L. Madhuku, for the applicant T. Nyamasoka, for the respondent KATIYO J: Background This is an opposed chamber application in which the applicant seeks to register an arbitral award dated 14 June 2023 as an order of this Court in terms of Article 35 of the Model Law (First Schedule to the Arbitration Act [Chapter 7:15]. The award was made in favor of the applicant (claimant in the arbitration) against the two respondents. After this application was filed, the respondents instituted a separate application in this Court (under case HC 5436/23) to set aside the same award. The set-aside application is premised on several grounds, chief among them that the award is contrary to the public policy of Zimbabwe. By court order, case HCH 6254/23 was consolidated with case HC 5436/23 for convenience, and both matters were set down together. This judgment deals with the application for registration of the award (HC 6254/23). The respondents oppose the registration on a number of legal grounds, which I address in turn. Points in Limine 1. Non-compliance with Article 35(2) of the Arbitration Act The first objection is that the application is fatally defective for want of compliance with Article 35(2) of the Model Law (First Schedule to the Arbitration Act). Article 35(2) peremptorily requires that a party applying for recognition or enforcement of an arbitral award “shall supply the duly authenticated original award or a duly certified copy thereof HH 415 - 25 HCH 6254/23 and the original arbitration agreement referred to in article 7 or a duly certified copy thereof.” It is common cause that the applicant did not attach to its founding papers an authenticated original of the arbitral award, nor a duly certified copy thereof, and did not attach the original arbitration agreement or a certified copy of the same. The applicant’s position is that the copy of the award it provided (bearing the arbitrator’s signature) is effectively an authentic copy, and that the respondents have not alleged any tampering or inaccuracy in that document. Indeed, the applicant cited the Supreme Court’s observation that “the mischief sought to be averted by the requirement in Article 35(2) of the Model Law is to ensure that the High Court is satisfied that it is registering an authentic award.”. In other words, the purpose of Article 35(2) is to prevent the enforcement of a fake or erroneous award. The applicant argues that this purpose was met since the award attached was the version supplied by the arbitrator and there is no dispute as to its authenticity. Notwithstanding the applicant’s argument, Article 35(2) remains couched in imperative terms. Our courts have consistently held that where a statutory requirement is expressed in peremptory language (such as “shall supply”), failure to comply is fatal to the application in the absence of condonation or exceptional circumstances. In Gwanda Rural District Council v Botha, BHUNU JA explained that Article 35(2) was “crafted for the benefit of the respondent” to safeguard against enforcement of improper awards. Only if a respondent itself frustrates an applicant’s ability to obtain the original award can the respondent be said to have waived the protection of Article 35(2). That scenario does not arise in casu – there is no suggestion that the respondents impeded the applicant’s access to the original award. It was incumbent on the applicant to secure and file the requisite authenticated originals or certified copies. The applicant did not do so. The fact that the respondents do not dispute the award’s contents does not cure non-compliance with the clear, formal requirements of the law. As CHITAPI J recently observed, in an application for recognition under Article 35 “what is key is the award itself and it should be an authentic one.” A failure to attach an authenticated award may well lead the court to strike the matter off the roll. The present application, launched without the mandatory documents, flouts the peremptory provisions of Article 35(2). I therefore find that the application is fatally defective on this ground. 2. Failure to attach the arbitral record The second point in limine raised by the respondents is that the applicant did not attach the record of the arbitral proceedings, and that without it, the court cannot properly HH 415 - 25 HCH 6254/23 assess whether the award is fit for registration. In my view, this objection is misguided. There is no legal requirement in our Arbitration Act or rules that an enforcement applicant must file the full record of the arbitration. This application is not an appeal on the merits of the arbitral award, but a mechanism to facilitate enforcement of the award as a judgment of this Court. The law clearly itemizes the documents that must accompany such an application – namely the award and the arbitration agreement (or duly certified copies) – and makes no mention of the arbitral record. As the applicant correctly pointed out, there “is no need to attach a record of the proceedings” because the court is not called upon to re-open the evidence or findings of the arbitrator. It is the prerogative of a respondent opposing registration to place before the court any portions of the record or other evidence necessary to substantiate a refusal ground (such as public policy) that it invokes. The applicant cannot be faulted for not pre-emptively attaching the entire record. I accordingly dismiss this point in limine; the omission of the transcript or record of proceedings is not, by itself, a bar to the application. Public Policy Objection (Article 36(1)(b)(ii) On the merits, the respondents contend that the arbitral award in question is not capable of registration because its enforcement “would be contrary to the public policy of Zimbabwe”. Article 36(1)(b)(ii) of the Model Law permits this Court to refuse to recognize or enforce an award if it would violate the public policy of Zimbabwe. The public policy defense, however, is narrowly confined in our law. Courts are generally loath to invoke public policy to interfere with arbitral awards, “except in the most glaring instances of illogicality, injustice or moral turpitude.” In the oft-cited case of Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S), the Supreme Court held that the public policy exception must be construed restrictively, “in order to preserve and recognise the basic objective of finality in all arbitrations,” and that it applies “only if some fundamental principle of law or morality or justice is violated”. Mere errors of fact or law by an arbitrator are not sufficient. The award must embody a palpable or egregious inequality or injustice before a court will set it aside or refuse enforcement on public policy grounds. As PATEL JA explained in OK Zimbabwe Ltd v Ardbare Properties (Pvt) Ltd (SC 55/17), the court will only intervene where “the reasoning or conclusion in the award ... constitutes a palpable inequity, gross irrationality, moral turpitude or resultant grave injustice”, whether in the procedure adopted by the arbitrator or in the substance of his decision. (See also Ropa v Rosemart Investments (Pvt) Ltd 2006 (2) ZLR 283 (S) at 286; Delta Operations (Pvt) Ltd v Origen Corp (Pvt) Ltd 2007 (2) ZLR 81 (S) at 85; Peruke Investments (Pvt) Ltd v HH 415 - 25 HCH 6254/23 Willoughby’s Investments (Pvt) Ltd & Anor 2015 (1) ZLR 491 (S). In short, the public policy ground is reserved for breaches of Zimbabwe’s most basic notions of justice and morality – situations such as corruption, fraud, or a clear denial of due process in the arbitration. Against that stringent standard, do the respondents’ complaints about this award truly implicate public policy? The respondents allege that the arbitrator committed profound irregularities in handling the dispute. In particular, they aver that the arbitrator decided the case without hearing viva voce evidence despite stark, material disputes of fact on the record – effectively delivering an award “in the absence of evidence” on crucial issues. It is common cause that all of the first respondent’s (claimant’s) witnesses were abroad and could not testify in person, yet the arbitrator proceeded by way of affidavit without allowing for oral evidence or cross-examination. The respondents submit that, in the face of such unresolved factual conflicts, the arbitrator ought to have dismissed the claim or insisted on trial of the disputes, rather than “turn justice upside down” by making an award without hearing any live testimony. Furthermore, the respondents argue that the arbitrator granted relief on a cause of action never pleaded by the claimant. The statement of claim sounded in misrepresentation, but the arbitrator’s award was based on breach of contract – an issue that was not part of the claimant’s pleadings and to which the respondents had no opportunity to answer. These two alleged irregularities – deciding without evidence and on an unpleaded cause – are said to constitute a gross procedural injustice and a prima facie breach of the fundamental rules of natural justice. The respondents have indeed articulated serious concerns that, if proved, strike at the heart of the fairness and legality of the arbitration process. It is well established that an award induced or affected by a breach of the rules of natural justice is contrary to public policy. Adjudicating a dispute on a basis not pleaded, or without affording the parties a proper hearing on critical factual issues, would fall squarely within the type of fundamental procedural impropriety that our public policy cannot tolerate. The applicant, on the other hand, maintains that the respondents’ objections do not meet the high threshold required. The applicant submits that the arbitrator’s findings were well-reasoned and based on the evidence presented, and that the respondents are simply unhappy with the outcome. It refutes the notion that any breach of natural justice occurred, pointing out that no fraud, corruption, or other ultra vires conduct by the arbitrator has been alleged. In the applicant’s view, the issues raised by the respondents – even if they involve errors in the arbitrator’s reasoning – amount at most to ordinary misapprehensions of fact or law, which are not enough to trigger the public policy exception. The applicant thus HH 415 - 25 HCH 6254/23 characterises the respondents’ stance as a merit-based quarrel with the award dressed up as a public policy complaint, aimed at delaying the inevitable enforcement of a proper award. Having considered the parties’ submissions and the record of the arbitration as placed before me in the set-aside application, I am inclined to agree with the respondents on this issue. This is not a case of mere dissatisfaction with an arbitrator’s interpretation of a contract or assessment of evidence. The irregularities asserted are fundamental. If an arbitrator decides a dispute on a point not pleaded, he denies the affected party the right to be heard on that point; that is a clear breach of natural justice. Likewise, if an arbitrator resolves material factual disputes without hearing oral evidence (especially after one party requested such evidence due to disputes of fact), that raises a serious question of procedural unfairness. These are genuine public policy concerns under our law – the sort of “glaring instances of injustice” that warrant the Court’s intervention. In my view, the respondents have established a valid ground of refusal in terms of Article 36(1)(b)(ii). Enforcing this award in the face of such purported irregularities would offend Zimbabwe’s sense of justice and equity. It would be contrary to public policy to give the award the imprimatur of a court order while these issues stand. In the circumstances, the respondents’ objection under Article 36(1)(b)(ii) succeeds. For completeness, I note that the respondents had initially urged that this enforcement application be stayed or deferred until the determination of their application to set aside the award. In terms of Article 36(2) of the Model Law, a court may indeed adjourn a decision on enforcement if an application for setting aside the award is pending. However, since the two matters were consolidated and heard together, it became unnecessary to formally suspend one in deference to the other. The course adopted has allowed the Court to consider the interrelated issues holistically and consistently. Given my findings on the merits of the public policy challenge, it follows that the award cannot be registered at this juncture (if at all). In substance, the objections raised by the respondents – both the procedural non-compliance and the public policy considerations – are dispositive of this application. Conclusion and Disposition In the final result, the application for registration of the arbitral award cannot succeed. The point in limine relating to Article 35(2) is upheld. The application is fatally defective for want of the documents required by law. Even if the application were technically compliant, I would refuse registration on the substantive ground that enforcement of the award would be HH 415 - 25 HCH 6254/23 contrary to public policy in the circumstances of this case. Accordingly, the application is dismissed. With regard to costs, the respondents sought costs on the higher scale of legal practitioner and client, arguing that the applicant’s pursuit of this application was frivolous or abusive in light of the clear defects and the pending set-aside proceedings. I am not convinced that a punitive costs order is warranted. While the applicant has been unsuccessful, I am not prepared to hold that its conduct rises to the level of vexatiousness or abuse of process. The issues raised required determination, and the applicant was within its rights to seek enforcement unless and until the award was set aside. In my view, an award of ordinary party-and-party costs will suffice to do justice between the parties. In the result; It is accordingly ordered that the chamber application for registration of the arbitral award (Case No. HCH 6254/23) be and is hereby dismissed with costs on the ordinary scale. KATIYO J: ……………………………………….. Lovemore Madhuku Lawyers, applicant’s legal practitioners Gallop & Blank, respondent’s legal practitioners