Godfrey Tatenda Gurira and Others v Zimbabwe Council for Higher Education (ZIMCHE) and Others

The applicants were employees of the first respondent (ZIMCHE), a statutory body. Their fixed-term employment contracts signed in 2008 expired at the end of December 2012 and January 2013. They continued working on the same terms and were assured by letter dated 9 January 2013 that their contracts would be renewed. On 29 April 2013, they were given two options due to a directive regarding salary reviews: a four-year contract with amended (less favourable) packages or a one-year contract on existing terms. The applicants chose the four-year option and signed new contracts in June 2013. The applicants alleged they signed the June 2013 contracts under duress, claiming that Mrs Muguti from the Ministry of Higher and Tertiary Education threatened that they would be unemployed if they did not sign. They referred the dispute to arbitration, and the arbitrator (second respondent) rejected their duress claim. The applicants then applied to the High Court to set aside the arbitral award under Article 34(2)(b)(ii) of the Arbitration Act, arguing it conflicted with public policy.

• Whether the arbitral award was in conflict with the public policy of Zimbabwe as contemplated in Article 34(2)(b)(ii) of the Arbitration Act
• Whether the applicants signed the June 2013 employment contracts under duress
• Whether the court could substitute its own decision for that of the arbitrator in reviewing an arbitral award
• The scope and proper interpretation of Article 34 of the Arbitration Act regarding setting aside arbitral awards

The application was dismissed with costs. The applicants were ordered to pay costs jointly and severally, the one paying the others to be absolved.

An arbitral award can only be set aside under Article 34(2)(b)(ii) of the Arbitration Act on public policy grounds where the reasoning or conclusion in the award goes 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 and fair-minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award. Public policy provisions in Article 34 must be interpreted restrictively consistent with the need for finality in arbitration proceedings. The court does not sit as an appellate court to consider the merits of an arbitrator's decision. Relief under Article 34 is limited to setting aside the award and does not permit the court to substitute its own decision for that of the arbitrator.

The court made several non-binding observations: (1) Legal practitioners and litigants must apply their minds to the relief sought in draft orders, which must be based on the papers filed and must seriously reflect the cause of action pleaded; (2) A deceased estate should be represented in proceedings by an executor, and it would be incompetent to declare a deceased estate a permanent employee; (3) The fact that a person is unhappy about the terms of a contract does not automatically mean the contract was signed under duress or undue influence, as most contracts follow negotiations where parties do not get everything they want; (4) Highly educated professionals, particularly a Principal Director of Human Resources and Administration, would be expected to appreciate the implications of signing a contract without reservations.

This case is significant in Zimbabwean jurisprudence for reinforcing the restrictive approach courts must take when reviewing arbitral awards under Article 34 of the Arbitration Act. It emphasizes the principle of finality in arbitration and that courts will not interfere merely because an arbitrator's decision may be incorrect. The judgment clarifies that setting aside an award requires a palpable inequity that constitutes an affront to justice and fairness, not mere incorrectness. The case also provides guidance on the assessment of duress in employment contract contexts, particularly where sophisticated parties (highly educated professionals) are involved. It further clarifies the limited scope of relief available under Article 34 applications, confirming that courts cannot substitute their decisions for arbitrators' decisions.