J. T Malinga and Associates (Pvt) Ltd and Joshua Teke Malinga v Old Mutual Properties Investments Corporation (Pvt) Ltd and Gordon Geddes N.O

The first respondent leased Shop 31 at Nkulumane Shopping Mall (179.18 square metres) to the first applicant under a written lease from August 2006 to July 2009. After expiration, the tenancy continued on the same terms. The first applicant refused to pay the landlord's rental demand, instead unilaterally fixing rent at $1.00 per square metre ($179 per month), and paid only approximately $12,000 over 8 years 8 months. The second applicant signed a suretyship as surety and co-principal debtor for the first applicant's obligations under the lease. A dispute over rent was referred to arbitration under clause 40.1 of the lease. The arbitrator (second respondent) awarded in favour of the first respondent, determining open market rent at $2.50 per square metre ($448 per month) and awarding arrears from January 2009, operating costs, interest at 14.25% per annum, VAT, and confirming the landlord's right to cancel the lease and evict. The applicants sought to set aside the arbitral award under Article 34 of the Arbitration Act, while the first respondent sought registration of the award.

• Whether the arbitrator exceeded his mandate by determining open market rent when this was allegedly not submitted to arbitration
• Whether the arbitral award was contrary to public policy of Zimbabwe on grounds of prescription, interest awards, VAT interest, and liability of the surety
• Whether the applicants could raise issues not argued before the arbitrator as grounds to set aside the award
• Whether the arbitral award should be set aside under Article 34 of the Arbitration Act [Chapter 7:15]
• Whether the arbitral award should be registered and enforced

1. Application to set aside arbitral award in HC 2132/16 dismissed. 2. Application for registration of arbitral award in HC 2079/16 granted. 3. Arbitral award of G Geddes dated 8 June 2016 registered as an order of court. 4. Open market rent fixed at US$2.50 per square metre (US$448 per month). 5. First applicant to pay outstanding rentals from January 2009 to February 2016 of US$69,085.23 (less US$6,755.17 already paid). 6. First applicant to pay outstanding operating costs of US$34,365.89. 7. VAT on rent and operating costs confirmed. 8. Interest at 14.25% per annum on outstanding balances confirmed. 9. First respondent's right to cancel lease confirmed. 10. First applicant and all persons claiming through it to be evicted. 11. Hold-over damages of US$448 per month plus operating costs while in occupation. 12. First and second applicants to pay costs on attorney-client scale. 13. Second applicant liable as surety for all first applicant's obligations.

1. Article 34 of the Arbitration Act provides very limited grounds for challenging arbitral awards and must be construed narrowly to protect arbitration and sanctity of contract. 2. A party cannot approbate and reprobate - having requested the arbitrator to determine fair market rent, the applicants could not later claim the arbitrator exceeded his mandate by doing so. 3. Issues not raised before an arbitrator cannot be raised for the first time as grounds to set aside an arbitral award. 4. An arbitral award is only contrary to public policy under the Zesa v Maphosa test where the reasoning or conclusion constitutes a palpable inequity so far-reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible or fair-minded person would consider that the conception of justice would be intolerably hurt by the award. 5. A suretyship that covers obligations "for as long as the terms of the agreement apply to the tenancy, whether statutory or contractual" continues beyond the expiry of a fixed-term lease when the tenancy continues on the same terms.

The court observed that parties who submit to arbitration agreeing that the arbitrator's decision shall be final and binding should desist from "footling litigation" when the decision goes against them. The court expressed strong disapproval of the applicants' conduct, describing their 8-year refusal to pay fair rent for commercial premises as "unprecedented" and showing "lamentable unwillingness to commit to what the parties agreed to" and "stubbornness." The court indicated such conduct warranted punitive costs as "a seal of this court's disapproval."

This case is significant in Zimbabwean arbitration law for: (1) narrowly construing the limited grounds for setting aside arbitral awards under Article 34 of the Arbitration Act to protect the institution of arbitration and sanctity of contract; (2) applying and reaffirming the Zesa v Maphosa test for public policy challenges to arbitral awards, requiring palpable inequity that is outrageous in its defiance of logic or acceptable moral standards; (3) enforcing the principle against approbation and reprobation where parties requested specific relief from an arbitrator; (4) holding that parties cannot raise new issues on review that were not argued before the arbitrator; (5) clarifying when arbitration proceedings commence for prescription purposes; (6) interpreting continuing suretyships in the context of expired leases that continue on a statutory basis; and (7) demonstrating judicial disapproval of persistent refusal to honor contractual obligations through punitive costs orders.