Buppe Kihwaja Changara v Row Croppers (Private) Limited

The applicant held an offer letter from the Government of Zimbabwe dated 8 January 2007 for agricultural land measuring 979.34 hectares in Mazowe. On 1 October 2015, she entered into a 10-year joint venture agreement with the respondent for farming operations on the land. The applicant alleged breaches of the agreement by the respondent and cancelled the agreement. An earlier arbitral award by Arbitrator A. Moyo dated 12 June 2019 found that the respondent had breached the agreement but held that cancellation was premature as the applicant had not complied with the notice requirements in Clause G of the agreement. Following that award, the applicant served notice on 30 July 2019 requiring the respondent to remedy breaches, then served a cancellation notice on 14 August 2019. The matter proceeded to a second arbitration before Arbitrator C. Kuhuni, who on 25 February 2020 awarded in favor of the applicant, finding proper cancellation and ordering eviction. The applicant then sought registration of the arbitral award, which the respondent opposed.

• Whether the arbitral award should be registered under Article 35 of the Arbitration Act [Chapter 7:15]
• Whether the arbitral award was contrary to the public policy of Zimbabwe under Article 36 of the Model Law
• Whether the arbitrator breached the rules of natural justice by refusing to hear counter-claims
• Whether the arbitrator failed to respect the sanctity of the parties' contract
• Whether the arbitrator correctly interpreted Article 31(4) regarding knowledge of the award
• Whether the arbitrator wrongly applied the doctrine of res judicata

1. The arbitral award of C. Kuhuni dated 25 February 2020 was registered. 2. The respondent was ordered to pay costs of suit.

An arbitral award will only be refused recognition and enforcement on public policy grounds under Article 36 of the Arbitration Act where the reasoning or conclusion reaches beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far-reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible fair-minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt. The court does not exercise appellate powers over arbitral awards to determine what it considers should have been the correct decision. Party autonomy in choosing arbitration must be given prominence and courts must adopt a restrained approach that promotes arbitration as an alternative dispute settlement mechanism. The public policy exception must be narrowly applied to ensure finality of arbitral awards.

The court observed that notification of the availability of an arbitral award for collection constitutes sufficient delivery under Article 31(4) of the Arbitration Act - physical delivery by the arbitrator to each party is not required. The court also noted that if court orders only had force from the date a party actually saw the order, parties could easily avoid service of adverse orders. The court commented that the respondent's challenge appeared to be filed as a matter of course without properly considering prospects of success, and that the grounds of objection were very much in the nature of an appeal rather than proper grounds for challenging registration.

This case reinforces the restrictive approach courts should take when reviewing arbitral awards on public policy grounds in Zimbabwe. It clarifies that: (1) Party autonomy in choosing arbitration must be respected and finality of arbitral awards promoted; (2) The public policy exception under Article 36 of the Model Law must be narrowly applied; (3) Courts should minimize interference with arbitral awards unless they fundamentally offend Zimbabwe law or are unconscionable; (4) Mere errors of fact or law by an arbitrator do not constitute grounds for refusing registration - the threshold requires palpable inequity that shocks the conscience; (5) Challenges to arbitral awards that are essentially appeals on the merits will not succeed. The judgment promotes arbitration as an alternative dispute resolution mechanism and upholds the principles established in ZESA v Maposa regarding the limited scope for judicial intervention in arbitral awards.