Augur Investments OU v Fairclot Investments (Pvt) Ltd T/A T&C Construction and D.L. Cruttenden

The applicant, a Mauritian company conducting property finance and development in Zimbabwe, was contracted by the City of Harare to manage the upgrading and extension of Airport Road. The applicant sub-contracted the first respondent to carry out civil engineering works on the Airport Road under an agreement dated 25-26 March 2013. The first respondent carried out works to the value of $4.8 million but was not paid for almost two years. A dispute arose regarding whether payment should be made in cash or by transfer of land. The first respondent referred the matter to arbitration. The Arbitrator ordered payment of $3,340,500 by 4 April 2015 in cash, and $1,459,500 by 4 June 2015, which could be made by land transfer. The land in question (Stand 654 Pomona Township) was registered in the name of "The President of Zimbabwe its Successors or Assigns", not the applicant. The applicant applied to set aside the arbitral award.

• Whether the Arbitrator made decisions on matters not placed before him
• Whether the arbitral award offends against the public policy of Zimbabwe
• Whether an arbitral award can be set aside where it is alleged to be erroneous in law or fact
• Whether an arbitrator's finding that a party cannot cede rights in land not vested in it constitutes a palpable inequity contrary to public policy

The application for setting aside the arbitral award was dismissed with costs.

An arbitral award may only be set aside on public policy grounds under Article 34(2)(b)(ii) of the Model Law (Arbitration Act Chapter 7:15) where the reasoning or conclusion 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. An arbitral award is not contrary to public policy merely because it is wrong in law or fact. A finding by an arbitrator that a party cannot cede rights in property not vested in it does not constitute a palpable inequity contrary to public policy.

The court observed that the High Court does not sit as an appeal court over arbitral awards and is not concerned with the correctness of arbitral decisions unless such incorrectness constitutes a grave inequity. The court noted that a decision requiring payment of a debt that is admittedly due and owing can never be said to be contrary to public policy. The court also commented that it was unclear whether the applicant had or ever had any rights in the Pomona Property, as no agreement was produced ceding any rights in that property to the applicant.

This case reinforces the narrow grounds upon which arbitral awards may be set aside in Zimbabwe. It confirms the application of the Maposa test for public policy challenges to arbitral awards, emphasizing that courts will not interfere with arbitral awards merely because they may be wrong in law or fact. The case demonstrates judicial deference to arbitration as a dispute resolution mechanism and the high threshold required to demonstrate that an award is contrary to public policy. It also clarifies that parties cannot use public policy challenges to effectively appeal arbitral awards on their merits.