Beitbridge Bulawayo Railway Company v Zimbabwe Amalgamated Railway Union and Arbitrator Gladys Mpemba

The appellant, a railway company, faced viability challenges and engaged employees and the first respondent trade union in June 2009 to reduce its workforce through retrenchment. When negotiations failed, the appellant proceeded under the Labour Act to retrench employees. A total of 35 employees individually negotiated exit packages with the appellant's knowledge and the union's consent. A separate group of 35 employees was represented by the union, which disputed whether the correct retrenchment procedure had been followed. In September 2009, the parties appointed the second respondent as arbitrator to determine whether the employer had followed the correct retrenchment procedure. The arbitrator ruled in favour of the employer on 23 September 2009, finding the procedure lawful and authorizing the retrenchment. The union then filed an application in the High Court in October 2009 to set aside the arbitral award, which the High Court granted. The employer appealed to the Supreme Court.

• Whether there was a proper application before the High Court to set aside the arbitral award
• Whether the High Court had jurisdiction to review a voluntary arbitration award
• Whether the applicable legal framework was Article 34 of the Model Law under the Arbitration Act or section 27 of the High Court Act
• Whether the arbitrator exceeded her terms of reference in making the award
• Whether the High Court misdirected itself in setting aside the arbitral award

The appeal succeeded with costs. The judgment of the High Court was set aside and substituted with an order dismissing the application with costs.

Article 34(2) of the Model Law contained in the Arbitration Act sets out the sole and exclusive grounds upon which an arbitral award may be set aside by the High Court. An arbitral award cannot be set aside on review grounds contained in section 27 of the High Court Act. The legal standard for setting aside a voluntary arbitral award is high, and courts will only interfere in limited instances prescribed by Article 34. An arbitrator does not exceed their terms of reference merely by providing elucidation or guidance to parties on ancillary matters concerning the main issue, provided the arbitrator has properly answered the question referred for determination. A court setting aside an arbitral award must justify its finding that the arbitrator exceeded the scope of their mandate based on the circumstances of the case.

The Court noted that even in cases of misconduct of proceedings by an arbitrator, a court will be reluctant to interfere save in limited instances. The Court cited NetOne Cellular (Pvt) Ltd v Communications and Allied Services Workers Union of Zimbabwe and Anor, which emphasized that Article 34 prescribes stringent requirements that a litigant must satisfy when seeking to set aside an arbitral award. The Court observed that Mr Majoko, counsel for the first respondent, accepted that the arbitrator had answered the question in the affirmative and that the employer had followed the correct procedure, effectively conceding the main issue before the arbitrator.

This case is significant in Zimbabwean labour and arbitration law as it clarifies the limited grounds and high threshold for judicial interference with voluntary arbitration awards. It reinforces that Article 34 of the Model Law under the Arbitration Act provides the exclusive jurisdiction and grounds for setting aside arbitral awards, and that section 27 of the High Court Act does not apply to such awards. The case emphasizes the principle of finality in arbitration and the courts' reluctance to interfere with arbitral awards except in the limited circumstances prescribed by statute. It provides guidance on interpreting an arbitrator's mandate and distinguishing between decisions on matters within the terms of reference and ancillary remarks or guidance that do not constitute exceeding jurisdiction.