Court name
Supreme Court of Zimbabwe
Case number
SC 84 of 2006
Civil Appeal 84 of 2006

Provincial Superior of the Jesuit Province of Zimbabwe v Kamoto and Others (Civil Appeal No. 84/06) (SC 84 of 2006, Civil Appeal 84 of 2006) [2007] ZWSC 84 (09 July 2007);

Law report citations
Media neutral citation
[2007] ZWSC 84






REPORTABLE ZLR
(15)






Judgment No. SC 84/06



Civil Appeal No. 84/06








THE
PROVINCIAL SUPERIOR OF THE JESUIT PROVINCE OF
ZIMBABWE v GODFREY KAMOTO AND OTHER
RESIDENTS
AT MANRESA FARM








SUPREME
COURT OF ZIMBABWE


CHEDA JA,
ZIYAMBI JA & GARWE JA


HARARE,
SEPTEMBER 18, 2006 & JULY 10, 2007









L Mazonde, for the appellant


N
Chikono
, for the respondents









GARWE JA: At the hearing of this matter before this Court, the
parties agreed that the matter be postponed sine die to afford
them the opportunity to discuss the possibility of a settlement. In
the event that no such settlement materialized, the
parties were
given leave to approach the Court so that the matter could be
determined in the normal course. After some discussions
the parties
were unable to reach an agreement and this Court was then asked to
determine the appeal.







The background to this matter is aptly summarized in the arbitral
award forming the subject of this appeal. The appellant is the
owner
of Manresa Farm, a piece of land measuring 417.931 hectares in extent
situated within the boundaries of the City of Harare.
The
respondents claim that they are all residing on Manresa Farm. It is
unknown exactly how many families are living on the farm.
Some of
the families moved onto the farm with the appellant’s authority
whilst others did so without such authority. The appellant
was given
permission by the Harare City Council (“the Council”)to subdivide
the farm into residential stands, with land also
being reserved for
schools, crèches, churches, commercial use and other such purposes.
It had been the appellant’s intention
to accommodate the
respondents in its development plans but because of developments that
followed the appellant was prevented from
doing so by the Council.
In 1998 the Council advised the appellant that the settlement on
Manresa was unlawful and that the position
had to be regularized.
The appellant started proceedings to get approval from the Council
for the orderly and lawful settlement
of persons at Manresa. The
appellant had previously told the residents that they would be
included in the scheme. The proposal
by the appellant for the
development of a high density residential scheme was however turned
down by the Council on the basis that
such a scheme would need to be
connected to the Council sewerage system, which was not possible. A
medium density scheme was also
not acceptable to the Council for the
same reason. Therefore the appellant adopted a low density scheme
which the Council then approved.
The respondents were given the
option of purchasing these stands but, for financial reasons, only
one was able to do so. The appellant
then made some offers of
relocation assistance to those households it had authorized to reside
at Manresa. Some of the residents
accepted the assistance and moved.
Others accepted but did not move. In terms of the permit issued by
the Council the appellant
was required to build roads and storm water
drains in the area and to provide a water reticulation system. To do
this, the respondents
would have to be moved and some of their houses
demolished.







The appellant filed an application in the High Court seeking an
order for the eviction of the respondents. The respondents opposed
the application. Owing to a dispute of facts on the papers, the
Court suggested and the parties agreed that, for a speedy resolution,
the matter be referred to arbitration. The matter came before the
arbitrator who concluded that any agreement that may have been
reached between the appellant and the respondents in terms of which
the latter were to occupy stands on Manresa was null and void
in the
light of the provisions of s 39(1) of the Regional Town and Country
Planning Act, [Cap. 29:12]. That section provides that such
an agreement must be in accordance with a permit. The arbitrator
also found that there was no
basis in law upon which the appellant
could be said to be liable to pay compensation since the buildings
constructed by the respondents
were to be demolished and the
appellant had not been enriched in any way.







The respondents filed an application in the High Court challenging
the award on the basis that it was contrary to the public policy
of
Zimbabwe. In particular they challenged the award on the basis that
the effect of the award was that the respondents should resettle
themselves, that the award did not deal with the issue of alternative
resettlement and that the award promotes the setting up of
squatter
camps. This, the respondents argued, would be against the public
policy of Zimbabwe.







The High Court, after hearing argument, set aside the award. The
Court concluded that the arbitrator made a gross mistake in finding
that the appellant had no obligation to compensate the respondents
“when the parties themselves seem to have accepted that principle
and only needed guidance in its implementation in terms of the levels
of compensation and identity of those so entitled”. The
Court
further concluded that the arbitrator had failed to apply his mind to
this question or had totally misunderstood the issue.







It is against this finding that the appellant has now approached
this Court. More specifically the appellant submits that the
arbitral award is not against public policy and that the respondents
are not in any event entitled to compensation and relocation
expenses. To determine this issue, it will be necessary to look at
the law.







The Arbitration Act [Cap. 7.15] in the First Schedule has
incorporated the United Nations Commission on International Trade Law
(UNCITRAL) Model Law, with modifications.
Article 34 of the Model
Law has prescribed the procedure to be followed in applying for the
setting aside of an arbitral award.
For purposes of the present
appeal, the relevant provisions are to be found in paragraphs
2(b)(ii) and 5. Paragraph 2(b)(ii) provides
as follows:-







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







  1. …








  1. the
    High Court finds, that –









    1. …










    1. the
      award is in conflict with the public policy of Zimbabwe.”














The term “public policy” is a somewhat vague and amorphous
concept. It does not lend itself to a clear definition. As stated
by GUBBAY CJ in ZESA v Maposa 1999 (2) ZLR 452:







“Public Policy is an expression of vague import. Its requirements
invariably pose difficult and contentious questions.”(at p
464D)











The position is now settled that in ascertaining the meaning of this
elusive concept in the context of the Model Law, regard must
be had
to the structure of articles 34(5) and 36(3). These articles deal
with two aspects. The first relates to the circumstances
connected
with the making of the award, whilst the second relates to the
substantive effect of the award itself. For purposes of
the present
appeal, it is the latter that is pertinent. In ZESA v Maposa
supra GUBBAY CJ stated:







“What has to be focused upon is whether the award, be it foreign or
domestic, is contrary to the public policy of Zimbabwe. If
it is,
then it cannot be sustained.







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 recognize the basic
objective of finality in all arbitrations; and to hold such defence
applicable only if some fundamental principle of the law or morality
is violated.”







At p 466B, the learned Judge further observed:







“The difficulty, then, is not with the formulation of an
appropriate and acceptable test. It is with the application of that
test
in an endeavour to determine whether the arbitral award should
be set aside or enforcement of it denied, on the ground of a conflict
with the public policy of Zimbabwe.”







ZESA v Maposa supra is authority for the proposition
that an award will not be contrary to public policy merely because
the reasoning or conclusions
of the arbitrator are wrong in fact or
in law. In such a situation a court would not be justified in
setting aside the award. 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
consequences apply 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 question that arises in this appeal is whether the arbitral
award is contrary to the public policy of Zimbabwe. In particular
the arbitrator found that the respondents had no right to continue
residing at Manresa and further that the respondents do not have
any
claim against the appellant in respect of the houses they have built
or for relocation assistance.







Manresa farm was acquired by the appellant in 1902. In time the
appellant allowed some of the respondents to reside at the farm
whilst a number of respondents settled themselves on the farm without
authority. In 1975 Manresa farm was incorporated into the
Greater
Harare Area by the Harare City Council. This meant that all
activities in the area had to comply with the Council by-laws.
It
was for this reason that the Director of Works of the City Council
advised the Chishawasha Area Board in 1998 that the settlement
at
Manresa was not in accordance with the law and required regularizing.
It was then that the appellant established the Manresa
Development
Board to liaise with the Council. Eventually approval was granted in
October 2002 for the subdivision of Manresa into
stands.







It is clear from the evidence led before the arbitrator that
Manresa is an unplanned residential settlement. Some houses are
constructed
of pole and dagga. There are no toilets and no running
water. There are no schools or clinics or shops. The existing
houses were
not built under the supervision of any authority. The
need for the proper development of Manresa appears to have been
common cause.
Indeed, during the arbitration proceedings the legal
practitioner for the respondents submitted that the respondents were
not opposed
to the development of Manresa into a residential suburb.
Their only concern was where they would go.







Section 39(1) of the Regional Town and Country Planning Act [Cap.
29:12
] provides that no person shall subdivide any property or
enter into an agreement conferring on any person a right to occupy
any portion
of a property for a period of ten years or more or for
his lifetime except in accordance with a permit issued by the
Council.







Although some of the residents may have settled at Manresa before
the area was incorporated into the Greater Harare Area in 1975,
it is
clear that the effect of s 39 is to render null and void any
agreement conferring upon any of the respondents the right to
occupy
Manresa for a period of more than ten years. The arbitrator also
concluded that none of the residents had stayed at the farm
for more
than thirty years and that therefore none had acquired any rights
through prescription. The arbitrator also found that
the appellant
has not been enriched and that a claim for unjust enrichment cannot
succeed. The arbitrator concluded:







“Because the claimant has allowed them to erect houses and stay at
Manresa does not mean that the claimant is now required to assist
in
their relocation either by way of financial assistance or by
providing alternative accommodation or places to build houses. The
claimant has been forced by Council to remove the residents from
Manresa. However even if it had voluntarily decided to remove them,
the legal position would be the same.”







From a legal standpoint the reasoning of the arbitrator cannot be
impugned in any way. It had been the appellant’s intention
to
include the respondents in any development plans that were to be
approved by the Council. Indeed the representatives of the
respondents
were members of the Manresa Development Board that was
tasked with the responsibility of liaising with the Council on the
development
of Manresa. It is clear that the appellant had allowed
some of the respondents to stay at Manresa as a benevolent gesture.
Such
stay was indefinite. There were no basic standards to be met in
the construction of houses at Manresa. There was no talk at that
time of possible compensation in the event that it became necessary
for the respondents to move. To suggest in these circumstances
that
the arbitrator was wrong in that he adopted a strict approach to
issues of evidence and procedure is, to say the least, unfair
to the
arbitrator. The arbitrator was aware that the main issue was whether
the respondents had the right to remain at Manresa.
Having found
they did not, he considered the issues of compensation and
alternative settlement. He considered that the appellant
was under
no legal obligation to provide these. Whilst the net effect of the
award is to render the respondents homeless, I am not
persuaded that
the arbitrator was wrong in coming to this conclusion.







The present position is that the continued stay of the respondents
at Manresa is unlawful. The appellant has been forced to seek
the
eviction of the respondents. To have allowed the respondents to
remain on the farm would have been, in the circumstances, tantamount
to promoting an illegality. The public policy of this country cannot
demand of a party in the appellant’s position that he perpetuates
the kind of settlement that is to be found at Manresa.







The circumstances reveal that the appellant did attempt to provide
compensation and relocation allowance to enable those families
it had
authorized to occupy Manresa to move. It is apparent that the
appellant felt obliged to do so from a moral rather than legal
standpoint. The attempt was a failure. Some accepted and moved.
Others accepted but stayed, citing possible intimidation by other
respondents. There remains a dispute as to the identity of the
residents that the appellant had authorized to set up home on
Manresa.







The finding by the Court a quo that the arbitrator made a
gross mistake in finding that the appellant had no obligation to
compensate the residents “when the
parties themselves seem to have
accepted that principle and only needed guidance in its
implementation in terms of the level of compensation
and identity of
those so entitled” is not supported by the facts. There is
evidence that the appellant, alive to the difficulties
the
respondents would face in the event of eviction, tried to assist but
failed in this endeavour. There certainly was no agreement
that
compensation be paid. In all the circumstances therefore the finding
by the arbitrator cannot be said to be so outrageous as
to
intolerably hurt the conception of justice in Zimbabwe. The finding
cannot be said to violate any fundamental principle of the
law or
morality or justice.







It is clear in this case that, Manresa having been incorporated
into the Council Area, the responsibility of resettling the
respondents
would have rested firmly on the door of Government
through the relevant Ministry. There is evidence Government became
involved at
some stage but at a somewhat superficial level. The
arbitrator was alive to this and the problems that faced the
appellant namely,
that the appellant had wanted to accommodate the
respondents in the development plans but was prevented from doing so
by the Council
which went further to advise that the respondents
could not continue staying at Manresa owing to Council by-laws; that
both the Council
and Government were aware of the need for the
respondents to be resettled; that both have the authority to acquire
land for resettlement
purposes but have done nothing to resettle the
respondents. The result of the award is that the respondents will be
evicted from
Manresa. The stands that have been demarcated at
Manresa have been purchased by third parties. Whilst the eviction of
the respondents
is a sad development, this cannot, in the
circumstances, be said to be against the public policy of Zimbabwe.







In all the circumstances, the appeal must succeed.







It is accordingly ordered that -







1. The appeal is allowed with costs.







2. The order of the High Court is set aside and in its place the
following is substituted -





“(a) The application to set aside the arbitral award dated 8
November 2004 be and is hereby dismissed.




(b) The arbitral award of 8 November 2004 be and is hereby registered
as a judgment of the High Court of Zimbabwe.








  1. The respondents are to bear the costs of suit.”


















CHEDA JA: I agree.

















ZIYAMBI JA: I agree.



















Mutumbwa, Mugabe & Partners, appellant’s legal
practitioners



Mhiribidi, Ngarava & Moyo, respondents’ legal
practitioners