Canlink Trading (Private) Limited v Powertel Communications (Private) Limited

Canlink Trading (Pvt) Ltd (the applicant) applied for registration of an arbitral award against Powertel Communications (Pvt) Ltd (the respondent) in terms of Article 35(1) of the Arbitration Act [Chapter 7:15]. Prior to this application, the respondent had brought an application to set aside the arbitral award, which was heard before Deme J and dismissed. The respondent contended that they had appealed against the dismissal of the setting aside application and argued that registration should be suspended pending the Supreme Court's determination of the appeal. At the time of the hearing, no appeal had actually been filed at the Supreme Court despite the respondent's counsel's submissions to the contrary.

• Whether an arbitral award can be registered when an appeal against the dismissal of a setting aside application is pending or claimed to be pending
• What are the requirements for registration of an arbitral award under the Arbitration Act
• Whether a pending appeal constitutes a valid defence to registration of an arbitral award
• Whether registration of an award should be suspended when a party intends to appeal against dismissal of a setting aside application

The application for registration of the arbitral award was granted in terms of the draft order.

Once an application to set aside an arbitral award has been dismissed, the award remains valid and enforceable and may be registered, notwithstanding a pending or intended appeal against the dismissal. An appeal does not automatically suspend the enforceability of an arbitral award unless specifically ordered. Registration of an arbitral award is a formal administrative process governed by specific statutory requirements set out in CF Holdings t/a Farm & City v Andrew Machaya SC 37/23, and defences to registration are limited to non-compliance with those formalities. The five requirements for registration are: (1) competent arbitrator; (2) award sounds in money; (3) award is extant and not set aside; (4) parties are litigants to the award; and (5) award is certified.

The court observed that although the respondent's counsel submitted that an appeal had been filed at the Supreme Court, no such appeal had actually been filed at the time of the hearing. The court also noted that Article 36(2) of the Arbitration Act permits adjournment of a decision on recognition and enforcement if a setting aside application is pending, but this provision is not applicable once the setting aside application has been determined and dismissed.

This case clarifies the procedural requirements for registration of arbitral awards in Zimbabwe and confirms that registration is a formal administrative process. It establishes that a pending appeal (or even an intention to appeal) against the dismissal of a setting aside application does not automatically suspend the registration or enforceability of an arbitral award unless a specific order to that effect is obtained. The judgment reinforces the finality and enforceability of arbitral awards once applications to set them aside have been dismissed, promoting efficiency in arbitration enforcement and discouraging dilatory tactics by unsuccessful parties.