Elphas Mavune Maphisa v Bulawayo Municipal Commercial Undertaking (BMCU) t/a Ingwebu Breweries and Others

The applicant sought to review a final arbitral award handed down by a tribunal on 3 December 2015 and served on him on 11 May 2016. The applicant brought the application under Order 33 of the High Court Rules, sections 26-29 of the High Court Act [Chapter 7:06], and Article 34 of the Arbitration Act [Chapter 7:15]. The applicant appeared in person seeking to have the arbitral award set aside, reviewed and corrected. The first and third respondents raised a point in limine challenging the competency of the application, arguing that the applicant's hybrid approach was irregular and that the exclusive recourse against an arbitral award must be by way of Article 34(2) and (3) of the Model Law.

• Whether an arbitral award can be challenged through review proceedings under Order 33 of the High Court Rules and sections 26-29 of the High Court Act
• Whether Article 34 of the Model Law (First Schedule to the Arbitration Act) provides the exclusive mechanism for challenging an arbitral award
• Whether statutory provisions in the Model Law take precedence over the High Court Rules in matters relating to arbitral awards
• Whether the High Court's review powers under section 26 of the High Court Act are subject to specific provisions in other legislation

The point in limine raised by the first and third respondents was upheld and the application was dismissed with costs.

An arbitral award can only be challenged or set aside by way of an application in terms of Article 34(2) and (3) of the Model Law (First Schedule to the Arbitration Act [Chapter 7:15]). Review proceedings under Order 33 of the High Court Rules and sections 26-29 of the High Court Act are not available to challenge arbitral awards. The Model Law, as statutory law, takes precedence over the High Court Rules, which are subsidiary legislation. Section 26 of the High Court Act expressly subjects the High Court's review powers to 'any other law', and where such other law (the Model Law) provides an exclusive mechanism for recourse against arbitral awards, the general review powers do not apply.

The court noted that even if there were nothing in Order 33 rule 256 of the High Court Rules preventing such an application, Article 34 as part of a statute must hold dominance over the High Court Rules as subsidiary legislation. The court also observed that the High Court Rules operate under the umbrella of the High Court Act, which is the parent statute.

This case reinforces the principle that the Model Law provisions in the Arbitration Act provide the exclusive mechanism for challenging arbitral awards in Zimbabwe. It confirms the hierarchy of legislation, establishing that statutory provisions (the Model Law as part of the Arbitration Act) take precedence over subsidiary legislation (the High Court Rules). The judgment emphasizes the limited scope for judicial intervention in arbitration matters, upholding the finality of arbitral awards except through the specific statutory mechanism provided in Article 34(2) and (3) of the Model Law. This promotes certainty in arbitration proceedings and prevents parties from circumventing the specific statutory framework by attempting to use general review procedures.