Buffels Vallei 375 (Pty) Ltd v Lourens Marthinus Botha (Snr) and Others

By a consent order in HC 644/15, a dispute between the parties was referred to arbitration. The parties agreed to appoint Promise Ncube as arbitrator. The arbitrator made an arbitral award on 22 July 2015 and another on 20 January 2016, quantifying the amount to be paid to the applicant by the respondents as ZAR 13,403,620-00. The applicant then applied for registration of the arbitral award in terms of Article 35 of the Model Law for recognition and enforcement purposes. The respondents opposed registration on the grounds that: (1) registration was premature as the arbitrator still had to arbitrate other disputes between the parties and registration should not be sought "in a piece-meal fashion"; (2) ancillary issues yet to be determined may affect the relationship between parties and could result in costs being awarded against the applicant, so registration should be stayed; and (3) the applicant's claim for costs of registration was improper.

• Whether registration of an arbitral award should be refused where there are other disputes still to be determined by the same arbitrator involving the same parties
• Whether the grounds relied upon by the respondents constitute valid grounds for refusal of recognition or enforcement under Article 36 of the Model Law in the Arbitration Act
• Whether costs of registration of an arbitral award should be borne by the respondent

1. The arbitral award by Arbitrator Promise Ncube is hereby registered as an order of the court for purposes of enforcement. 2. The respondents shall pay to the applicant the sum of R13,403,620-00 together with interest at the prescribed rate calculated from 20 January 2016 to date of payment. 3. Each party shall bear its own costs.

Registration of an arbitral award or its recognition for purposes of enforcement can only be refused upon the person against whom it is invoked satisfying the court of the existence of grounds of refusal set out in Article 36 of the Model Law in the Arbitration Act [Chapter 7:15]. The existence of other disputes still to be determined by the same arbitrator involving the same parties is not a ground for refusal of recognition or enforcement under Article 36. An arbitral award that is complete on its own is registrable regardless of whether there are other pending matters between the parties. Costs of registration of an arbitral award should not ordinarily be borne by the respondent as the registration process is merely administrative and arises out of expediency given that arbitrators do not have enforcement mechanisms, unless there is something more caused by the conduct of the respondent.

The court reiterated its position from Duri v Mbada Diamonds (Pvt) Ltd HH 627/15 regarding costs of registration applications, explaining that if arbitrators or the Labour Court could issue writs for execution of their awards or orders, there would be no need for registration applications. The application has to be made to the High Court because of a lacuna that exists in Zimbabwean law, the legislature having omitted to provide for an enforcement mechanism. The court observed that this is not attributable to the respondent and therefore insufficient to justify an award of costs unless the respondent's conduct warrants it, such as filing opposition when such should not be filed at all. The court noted that applicants for registration often seek costs on an admonitory scale, but this is not justified given the administrative nature of the registration process.

This case provides important guidance on the registration and enforcement of arbitral awards in Zimbabwean law. It clarifies that courts will register arbitral awards unless grounds under Article 36 of the Model Law are satisfied, and that the existence of other pending disputes between the same parties is not a valid ground for refusal. More significantly, the case establishes the principle regarding costs of registration applications, holding that such costs should generally not be awarded against respondents as registration is merely an administrative necessity arising from the lack of enforcement mechanisms available to arbitrators, not from any fault of the respondent. This promotes efficiency in arbitration enforcement while being fair on costs allocation.