African Strategic Metals PLC v Desire Chikutiro and Misheck Mufari

The applicant sought to register an arbitral award dated 14 June 2023 as an order of the High 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 (HC 5436/23) to set aside the same award on grounds including that it was contrary to public policy. The two cases were consolidated for convenience. The applicant did not attach an authenticated original or duly certified copy of the arbitral award, nor the original arbitration agreement or certified copy thereof, as required by Article 35(2). The respondents opposed registration on multiple grounds including non-compliance with Article 35(2), failure to attach the arbitral record, and that enforcement would be contrary to public policy because the arbitrator allegedly decided the case without hearing viva voce evidence despite material disputes of fact, and granted relief on a cause of action (breach of contract) never pleaded by the claimant (whose claim sounded in misrepresentation).

• Whether the application for registration of the arbitral award complied with the mandatory requirements of Article 35(2) of the Model Law regarding authentication and certification of documents
• Whether failure to attach the arbitral record rendered the application defective
• Whether enforcement of the arbitral award would be contrary to the public policy of Zimbabwe under Article 36(1)(b)(ii) of the Model Law
• Whether alleged procedural irregularities in the arbitration (deciding without oral evidence despite factual disputes and awarding relief on an unpleaded cause of action) constituted a breach of natural justice sufficient to invoke the public policy exception
• Whether a punitive costs order was warranted

The chamber application for registration of the arbitral award (Case No. HCH 6254/23) was dismissed with costs on the ordinary scale.

The binding legal principles established are: (1) Article 35(2) of the Model Law (First Schedule to the Arbitration Act [Chapter 7:15]) is peremptory and requires strict compliance—an applicant seeking to register an arbitral award must supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement or a duly certified copy; failure to do so is fatal to the application; (2) There is no legal requirement to attach the full arbitral record to an application for enforcement of an arbitral award under Article 35; (3) Under Article 36(1)(b)(ii), enforcement of an arbitral award will be refused if it would be contrary to the public policy of Zimbabwe, but this exception is narrowly confined to cases involving fundamental violations of law, morality or justice, such as corruption, fraud, or clear denial of due process; (4) Alleged procedural irregularities that constitute breaches of natural justice—including deciding a dispute on a cause of action not pleaded (denying the affected party the right to be heard) and resolving material factual disputes without hearing oral evidence—are fundamental procedural improprieties that offend public policy and justify refusing enforcement of an arbitral award; (5) The public policy exception does not apply to mere errors of fact or law by an arbitrator, but only to awards that embody palpable or egregious inequality, injustice, gross irrationality, moral turpitude or grave injustice.

The court made several non-binding observations: (1) The mischief sought to be averted by Article 35(2) is to ensure the High Court is satisfied it is registering an authentic award, but this policy rationale does not excuse non-compliance with the peremptory language of the provision; (2) Under Article 36(2) of the Model Law, a court may adjourn a decision on enforcement if an application to set aside the award is pending, though this was unnecessary in the present case since the enforcement and set-aside applications were consolidated and heard together; (3) The consolidation of the enforcement application with the set-aside application allowed the court to consider interrelated issues holistically and consistently; (4) While the applicant was unsuccessful, its conduct did not rise to the level of vexatiousness or abuse of process warranting a punitive costs order on the legal practitioner-client scale—the applicant was within its rights to seek enforcement unless and until the award was set aside, and ordinary party-and-party costs sufficed to do justice between the parties.

This case is significant in Zimbabwean arbitration law for: (1) reaffirming the strict, peremptory nature of the formal requirements in Article 35(2) of the Model Law regarding authentication and certification of arbitral awards and arbitration agreements in enforcement applications; (2) clarifying that there is no requirement to attach the full arbitral record to an enforcement application under Article 35; (3) elaborating on the narrow scope of the public policy exception under Article 36(1)(b)(ii), while demonstrating that fundamental procedural irregularities—particularly breaches of natural justice such as deciding on unpleaded causes of action or resolving material factual disputes without proper hearing—fall within the exceptional circumstances that justify refusing enforcement on public policy grounds; and (4) providing guidance on the distinction between ordinary errors of law or fact (which do not trigger the public policy exception) and fundamental breaches of procedural fairness (which do). The case reinforces the pro-enforcement bias of the Model Law while maintaining safeguards against enforcement of awards obtained through fundamentally unfair processes.