Court name
Supreme Court of Zimbabwe
Case number
SC 35 of 2007
Civil Appeal 162 of 2006

Mtetwa and Another v Mupamhadzi (62/06) (SC 35 of 2007, Civil Appeal 162 of 2006) [2007] ZWSC 35 (07 May 2007);

Law report citations
Media neutral citation
[2007] ZWSC 35


DISTRIBUTABLE (32)






Judgment No. SC 35/07



Civil Appeal No. 162/06








(1)
STANLEY MTETWA (2) COURTESY CONNECTIONS (PVT)
LTD v DAVID MUPAMHADZI








SUPREME
COURT OF ZIMBABWE


SANDURA JA, GWAUNZA JA
& GARWE JA


HARARE, MAY 8, 2007









L Mawuwa, for the appellants


T G
Kasuso
, for the respondent









GWAUNZA JA: At the conclusion of the appeal hearing in this
matter, we dismissed the appeal with costs and indicated that the
reasons would follow. These are the reasons.





Subsequent to the
signing by the parties of an agreement for the sale of a certain
piece of land and the construction thereon of
a house by the
appellants, a dispute arose between the parties.





The dispute was
referred to Mr C A Banda (“Banda”) for arbitration. In his
award, Banda upheld the agreement of sale and construction,
and
ordered the appellants to transfer to the respondent the piece of
land in question. The appellants were also ordered to complete
the
construction of developments on the piece of land, as per the
parties’ agreement. The award was subsequently registered with
and
became an order of the High Court. The appellants were ordered to
pay costs on the legal practitioner and client scale.





A notice to tax the
costs ordered by the court a quo was served on the appellants
and set down for 8 November 2005. On 10 November 2005, the
appellants filed an application in the court
a quo entitled
“Application for Review and Leave to Apply Out of Time”.
In the application, the appellants sought to have Banda’s arbitral
award set aside on the basis that it was “grossly unreasonable”.





The court a quo
dismissed the application on three main grounds, that;



(1) the application should have been made in terms of Article 34 of
the Model Law as set out in the First Schedule to the Arbitration
Act
[Cap 7:15];


(2) the applicants, who
filed the application in question more than three months after
receipt of  the arbitral award contrary
to subs 3 of Article 34
of the Model Law, had by reason of such delay, irrevocably lost the
right to have the award set aside; and


(3)  that in
any case, the applicants had proffered no good explanation for
the delay in filing the application to
set aside the arbitral award.







The learned Judge also made an adverse finding regarding the merits
of the application.





I can find no fault
with the learned Judge’s findings and conclusions in this matter.





In the court a quo,
the applicant sought an order that “the arbitration order in this
matter and the order of the High Court registering it be and
are
hereby set aside”.





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 r 256 of the High Court Rules, since
there was 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 paras (2) and (3) thereof.





Specifically the
relevant provision reads as follows:


“ARTICLE
34






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.” (my emphasis)










The use of the words “exclusive” and “only”, in my view,
suggest there is to be no compromise when it comes to any 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.





Even had the appellants
sought to file their application in terms of Article 34 of the Model
Law, such application would have fallen
short of the requirements set
out in that Article. Paragraph (2) of the Article provides that an
arbitral award may be set aside
by the High Court only if –




  1. a party to the arbitration agreement was under some incapacity or
    the agreement is not valid under the law;



  2. the applicant was not given proper notice of the appointment of an
    arbitrator or of the arbitral proceedings;



  3. the award deals with a dispute not contemplated by or falling within
    the terms of the submission to the arbitration;



  4. the composition of the arbitral tribunal or the arbitral procedure
    was not in accordance with the agreement of the parties.








Additionally, Article 34 in its para 2(b) provides that the High
Court may set aside an arbitral award if the subject matter of the
dispute is not capable of settlement by arbitration under the law of
Zimbabwe or the award is in conflict with the public policy
of
Zimbabwe.





One does not need to
closely analyse the application filed in the court below to realize
that it did not satisfy these requirements.





One other significant
hurdle that the appellants would have had to tackle in their
application was that posed by subsection (3) of
article 34 of the
Model Law. As the judge a quo found, the clear meaning of this
provision is that an application to set aside an award may not be
made more than three months after
the party seeking to have it set
aside, received the award. It is not in dispute that the application
in question was filed some
fourteen (14) months after the appellants
had received the arbitral award in question. The learned judge a quo,
I find, correctly
noted that Article 34 does not provide for a
possible extension of the period for good cause shown or on any other
ground. I can
also find no fault with her conclusion, based on
authorities cited, that the right to have the award set aside was
irrevocably lost
when the appellants failed to file their application
on or before 1 December 2004, the last day of the three months period
stipulated
in the Arbitration Act.





The appellants’
contention that there was nothing in Order 33 r 256 of the High Court
Rules that prevented them from making the
application in question
under that order calls for further comment. 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. In any case, as correctly
found by the court a quo,
the application in question failed to satisfy even the provisions of
Order 33.





Rule 256 of Order 33
makes it imperative (as indicated 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.
As correctly observed by the court a quo, the appellants in
their application did not cite the arbitrator as a party. This, in
my view, would have been fatal to the application,
even were it to be
accepted as an application for review.





Further to this, and as
again correctly observed by the learned Judge a quo, no
grounds for review appeared ex facie the application, as
required by r 256.





Thus, having determined
that the application should have been filed in terms of Article 34(2)
of the Model Law, and also that it failed
to meet the requirements
for a review in terms of the High Court Rules, we were satisfied the
appeal had no merit.





Hence our decision to
dismiss it with costs.










SANDURA JA: I agree





GARWE JA: I agree









Mutezo & Company, appellants’ legal practitioners


Mantsebo &
Partners
, respondent’s legal practitioners