Elphas Mavune Maphisa v Bulawayo Municipal Commercial Undertaking t/a Ingwebu and Gorden Geddes

The applicant and the first respondent (Bulawayo Municipal Commercial Undertaking t/a Ingwebu Breweries) entered into a franchise agreement on 23 April 2013, whereby the applicant was granted the right to operate a beer outlet known as Pata Pata Tavern. The applicant operated the tavern for approximately two years but then breached the agreement by failing to pay owner's rates and royalty fees, resulting in arrears of US$23,365.99 by May 2015. The first respondent initiated arbitration proceedings pursuant to clause 8.1 of the franchise agreement. At the arbitration hearing, the applicant raised preliminary points arguing that (1) the franchise agreement was null and void because "Ingwebu Breweries" and "Bulawayo Municipal Commercial Undertaking" were not legal entities, and (2) there was no resolution of the Board of BMCU authorizing Mr R.S. Ndlovu to act on its behalf. The arbitrator (second respondent) dismissed these preliminary points on 20 October 2015, finding the franchise agreement enforceable. The applicant then sought review of this determination pursuant to sections 26 and 27 of the High Court Act as read with Order 33 of the High Court Rules 1971, while simultaneously continuing to participate fully in the arbitration proceedings on the merits.

• Whether an application for review under sections 26 and 27 of the High Court Act is competent to challenge an arbitrator's determination in light of Article 34 of the Model Law (First Schedule to the Arbitration Act)
• Whether a review application of a determination on a point in limine is competent when the arbitration has proceeded to be heard on the merits
• Whether the arbitrator's determination dismissing the preliminary points amounted to a gross irregularity warranting review
• Whether the relief sought was competent under section 28 of the High Court Act governing review proceedings
• Whether the franchise agreement was valid and enforceable despite the applicant's contentions regarding legal personality and authority

The application for review was dismissed with costs to the first respondent

1. Article 34 of the Model Law (First Schedule to the Arbitration Act) provides the exclusive recourse to a court against an arbitral award, and applications to set aside arbitral awards cannot be brought by way of review proceedings under sections 26-27 of the High Court Act and Order 33 of the High Court Rules. 2. A review application challenging a determination on a point in limine becomes moot and represents an impermissible duplication of proceedings where the applicant has subsequently participated fully in the arbitration on the merits. 3. In review proceedings under section 27(1)(c) of the High Court Act, the ground of "gross irregularity" relates to procedural aspects of the proceedings, not the substantive correctness of the decision reached. 4. Relief available in review proceedings is limited by section 28 of the High Court Act to setting aside or correcting proceedings, and does not extend to other corrective measures such as releasing parties from contractual obligations or ordering restitution. 5. A party who has substantially performed a contract over a significant period is estopped from subsequently challenging the validity and enforceability of that contract on grounds of lack of legal personality or authority of the contracting entity.

The court made several observations beyond the strict ratio: (1) Courts are not there to decide moot points, citing Mpukuta v Motor Insurance Pool; (2) In performing review powers, the High Court must not be fastidious but must be accommodative of minor mistakes, as setting aside decisions should only be done when absolutely necessary in the interests of justice; (3) An error of law constitutes gross irregularity only in specific circumstances, such as where the tribunal asks the wrong legal question, misconceives its jurisdiction, or erroneously declines jurisdiction on a preliminary point; (4) A determination can only be set aside as grossly irregular if it is "beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award" (citing Delta Operations v Origen Corp); (5) The applicant's contention that the City of Bulawayo cannot enter into valid enforceable contracts through its trading units is unsound given that Order 2A rule 8C allows persons carrying on business in a trading name to sue or be sued in that name; (6) The applicant's arguments were characterized as "illogical and mala fide" and "actuated by a burning desire to escape from performing his obligations under the franchise agreement."

This case reinforces the principle established in Mtetwa v Mupamhadzi that Article 34 of the Model Law provides the exclusive mechanism for challenging arbitral awards in Zimbabwe, and that review proceedings under the High Court Act are incompetent for this purpose. It clarifies that parties cannot circumvent the specific requirements and time limits of Article 34 (including the three-month limitation without possibility of extension) by resorting to ordinary review proceedings (which allow eight weeks subject to extension). The judgment also illustrates important principles regarding the limits of judicial review, emphasizing that review concerns procedural regularity rather than substantive correctness, and that courts will not entertain moot applications where the challenged preliminary determination has been overtaken by subsequent proceedings on the merits. The case demonstrates the application of estoppel principles in the context of commercial agreements that have been substantially performed, and confirms that municipalities can validly contract through their trading entities or commercialized units pursuant to the Urban Councils Act and High Court Rules.