Damo Resources (Private) Limited v Zimbabwe Base Metals Mining (Private) Limited

The Applicant and Respondent are companies registered under Zimbabwean law. An arbitral award was made in favour of the Applicant by arbitrator Kevin Terry on 8 February 2024, ordering the transfer of five mining claims from the Respondent to Venus Mining and Exploration Company (Private) Limited. The Applicant sought to register this arbitral award as an order of court in terms of Article 35 of the Model Law in the Arbitration Act [Chapter 7:15]. The Respondent had previously filed an application (HCHC 257/24) to set aside the award on public policy grounds, which was dismissed by the Supreme Court. The Respondent opposed the registration application on both procedural grounds (alleging defective authentication of the award) and substantive grounds (claiming the award violated public policy).

• Whether the application for registration of the arbitral award complied with the authentication requirements of Article 35(2) of the Model Law
• Whether a certified copy of an arbitral award is sufficient for registration purposes or whether a duly authenticated original is required
• Whether the arbitral award could be refused recognition and enforcement on public policy grounds under Article 36(1)(b)(ii) of the Model Law
• Whether the Respondent could relitigate the public policy issue after the Supreme Court had already dismissed an application to set aside the award on the same grounds

1. The application for registration of the arbitral award was granted. 2. The arbitral award made in favour of Applicant against the Respondent by Kevin Terry, dated 8 February 2024, was registered as an order of court. 3. Respondent was ordered to transfer five mining claims (Mistress 2, Felspar, Mistress 3, Mistress 4 and Mistress) to Venus Mining and Exploration Company (Private) Limited with immediate effect, failing which the Sheriff of the High Court was authorized to effect the transfer. 4. Respondent was ordered to pay costs of suit.

1. Article 35(2) of the Model Law permits the supply of either a duly authenticated original award OR a duly certified copy thereof for purposes of registration. 2. The purpose of Article 35(2) is protective (to prevent enforcement of fake or erroneous awards), not punitive, and form should not be elevated over substance where authenticity is not in dispute and no prejudice is suffered. 3. Where a party has already unsuccessfully challenged an arbitral award before the Supreme Court on public policy grounds, they cannot relitigate the same issue by opposing registration of the award on identical grounds, as this would constitute an abuse of process. 4. Courts must uphold the principle of finality in arbitration and prevent endless challenges that would erode confidence in the arbitral process and defeat party autonomy.

The court observed that litigation is not a game of wits but a serious legal process to solve serious legal disputes. The court also commented that endless challenges on the same grounds erode confidence in the arbitral process and defeat the principle of party autonomy. The court noted that arbitration is intended to provide finality and that to permit relitigation under the guise of opposition to registration would undermine the efficiency of arbitration and frustrate the legislative intent behind the Arbitration Act.

This case is significant in Zimbabwean arbitration law as it clarifies the authentication requirements for registration of arbitral awards under Article 35(2) of the Model Law. It establishes that courts will not adopt an overly technical approach to procedural requirements where no prejudice is suffered and no fraud is alleged. The case reinforces the principle that a certified copy of an arbitral award is sufficient for registration purposes. It also emphasizes the finality of arbitration by preventing parties from relitigating issues already determined by higher courts, thereby protecting the integrity and efficiency of the arbitral process. The judgment demonstrates the courts' commitment to upholding arbitration as an effective dispute resolution mechanism by refusing to allow procedural technicalities or relitigation of settled issues to frustrate the enforcement of valid arbitral awards.