Court name
Supreme Court of Zimbabwe
Case number
SC 38 of 2006
Civil Appeal 394 of 2005

Ropa v Reosmart Investments and Other (94/05) (SC 38 of 2006, Civil Appeal 394 of 2005) [2006] ZWSC 38 (12 November 2006);

Law report citations
Media neutral citation
[2006] ZWSC 38
















DISTRIBUTABLE
(44)


Judgment
No. SC 38/06


Civil
Appeal No. 394/05








WONDER
ROPA






v






(1)
REOSMART INVESTMENTS (2) STANBIC BANK ZIMBABWE
LIMITED








SUPREME
COURT OF ZIMBABWE


ZIYAMBI
JA, GWAUNZA JA & GARWE JA


HARARE,
JULY 24 & NOVEMBER 13, 2006








F
Piki
,
for the appellant





E
Matinenga
,
for the respondent









GWAUNZA
JA: Following an urgent application in which the respondent
in
casu
sought to have the appellant interdicted from withdrawing the amount
of ZW$2.3 billion from his Stanbic Bank account, the High Court
issued an order in these terms:






“IT IS ORDERED BY CONSENT -





1.
(a) That the respondent is hereby interdicted from withdrawing or
utilizing the $2 300 000 000.00 (Two billion and Three Hundred
Million Zimbabwe Dollars) that was deposited by the Applicant into
his Stanbic Bank Account (No. 012 109014970 1, Belgravia Branch)
pending the determination of this matter by Arbitration;







(b) Stanbic Bank Belgravia
Branch be and is hereby directed to invest the amount referred to in
paragraph 1 above to best advantage
pending finalisation of this
matter, by arbitration as set out in paragraph 2 of this order.







2. (a) That the matter shall be
referred to an Arbitrator. The Arbitrator’s decision shall be
binding on the parties and shall
accordingly be registered as an
Order of this Honourable Court for execution;







(b) The Arbitrator shall be
appointed through the Centre for Arbitration;







(c) The Arbitrator’s terms
of reference shall be to determine the party which is entitled to the
money in issue; and







(d) The Arbitrator’s
decision shall be binding on the parties and shall accordingly be
registered as an order of this Honourable
Court for execution.”








The matter
was duly referred to an arbitrator who, on 14 December 2005, made an
arbitral award in favour of the respondent.





The
appellant seeks to appeal to this Court, against the arbitral award.





Even
though a preliminary issue had been raised by the respondent, that
the “appeal” was not properly before this Court, we
invited
argument from both parties, on both the preliminary issue and the
merits of the appeal.






I propose to consider the
preliminary issue first and, depending on my determination thereon,
may proceed to consider the merits of
the appeal.





It
is submitted for the respondent that the High Court order, which was
granted by consent of both parties, clearly stated in its
paras 2(a)
and (d) that the arbitrator’s decision would be final. Further,
that such decision would be registered as an order
of the High Court
for purposes of execution only and not for any other purpose, like
the noting of an appeal to the Supreme Court.






The
appellant disputes this interpretation of the provisional order and
argues that the appeal has been filed in terms of s 19A
of the High
Court Act [
Cap.
7:06
]
as read with the Second Schedule (s 7) of the Arbitration Act [
Cap.
7:02
].






The section
provides
inter
alia

as follows:






“19A (1) …






(2) the High Court may adopt,
wholly or partly and with or without modification the report of a
referee appointed under subsection
(1) or may remit the report to him
for further consideration or may take such other action in regard to
the report as the High Court
considers necessary or desirable.






(3) any part of a referee’s
report which has been adopted by the High Court under subs (2) shall
have effect as if it were a finding
by the High Court in the civil
proceedings in question.”








The
appellant argues on the basis of this provision that the arbitral
award is appealable, since it is deemed an order of the High
Court.





I
am not persuaded there is merit in this contention.





The
High Court issued an order by consent, to the effect among others,
that the arbitrator’s terms of reference were:





“… to
determine the party which is entitled to the money in issue.”






In its paras
2 (a) and (d) the consent order stated clearly that the arbitrator’s
decision was to be
binding
on the parties

(my emphasis) and was to be registered as an order of this honourable
court for execution.





From
a simple reading of the consent order, it cannot, in my view be
disputed –






(i) that the dispute between the
parties was referred to an arbitrator, not on the basis of s 19A of
the High Court Act, but by consent
of the parties.


(ii) that
the parties agreed to be bound by – that is, to accept - the
decision of the arbitrator as to which one of the parties
was
entitled to the money; and


(iii) that
the decision of the arbitrator was to be regarded as an order of the
High Court and was to be registered with it for purposes
of execution
only.





By
extension of reasoning, therefore, the arbitrator's decision was to
become a consent order of the High Court. By its nature,
a consent
order is a final order and one normally does not appeal against such
an order. To the extent that s 19A(3) of the High
Court Act gives
an option to the High Court to either reject or adopt any part of a
referee’s report it has, in my view, no relevance
to the
circumstances of this case. The consent order makes it clear that
the High Court was to have no further say in the matter,
after its
referral to the arbitrator, beyond seeing to the registration and
execution of the arbitral award. This is not the situation
envisaged in s 19A(3) of the High Court Act.





In
addition to this, I found to be persuasive the submission made for
the respondent, that the effect of an arbitral award is to
bring to
finality the dispute between the parties. The respondent relied for
this submission on the following passage set out in
Butler and
Finsen’s
Arbitration
in South Africa Law & Practice

at p 271:





“The
most important legal consequence of a valid final award is that it
brings the dispute between the parties to an irrevocable end:
the
arbitrator’s decision is final and there is no appeal to the
courts. For better or worse, the parties must live with the
award;
unless their arbitration agreement provides for a right of appeal to
another arbitral tribunal. The issues determined by
the arbitrator
become
res
judicata
and neither
party may reopen those issues in a fresh arbitration or court
action.”





This
position applies with equal force in Zimbabwe. Applied to the
circumstances of this case, it is evident that the parties’
“arbitration agreement” that is, the consent order, did not
provide for a right of appeal to another tribunal. To the
contrary,
the order in question effectively provided that the
arbitrator’s decision would bring finality to the dispute, by
“binding”
the parties.





As
correctly contended for the respondent, s 19A of the High Court Act,
which addresses a situation different from the one
in
casu,
does not detract from the legal position concerning the effect of an
arbitration order.





I
am satisfied, in the light of the foregoing, that the respondent is
correct in its contention that the “appeal” is not properly
before this Court, and must be dismissed.





It
is, in view of this finding, not necessary for me to consider the
merits of the case.





It
is accordingly ordered as follows -





“The
appeal be and is hereby dismissed with costs.”














ZIYAMBI
JA: I agree.














GARWE
JA: I agree.














IEG
Musimbe & Partners
,
appellant's legal practitioners


Lofty
& Fraser
,
respondent's legal practitioners