Johannes Tomana and Reuben Tomana v Tian Ze Tobacco Company (Pvt) Ltd and Joel Mambara (N.O)

The 1st respondent (Tian Ze Tobacco Company) entered into tobacco farming contracts with the 1st applicant (Johannes Tomana) from 2008 to 2012. Under these contracts, the respondent supplied tobacco farming inputs on credit to enable the applicant to produce 40,000 kgs of tobacco, which would be sold to the respondent who would deduct the cost of inputs from proceeds. The 2nd applicant (Reuben Tomana) acted as the 1st applicant's farm manager and negotiated the contracts. The 1st applicant failed to deliver the contracted tobacco quantity. The respondent claimed US$114,749.80 for unpaid inputs. In September 2015, the 2nd applicant wrote letters acknowledging the debt and proposing payment. The matter was referred to arbitration. On 18 October 2018, the arbitrator (2nd respondent) awarded the amount claimed plus interest, finding both applicants jointly and severally liable, with each party to pay 50% of arbitration costs. The applicants sought to set aside the award.

• Whether the arbitrator exceeded his mandate by dealing with contracts from 2008-2012 rather than only 2011/12
• Whether the claim had prescribed
• Whether the 2nd applicant's letters interrupted prescription
• Whether the 2nd applicant had authority to bind the 1st applicant
• Whether force majeure (farm strikes, sanctions, currency challenges) excused performance
• Whether the award was contrary to public policy
• Whether the 2nd applicant could be held jointly and severally liable when not a party to the contract
• Whether an arbitral award can be severed

1. The application to set aside the arbitral award in respect of the 1st applicant is dismissed with costs. 2. The arbitral award remains intact regarding payment of US$114,749.80 and 50% of the arbitrator's costs by the 1st applicant. 3. The arbitral award against the 2nd applicant making him jointly and severally liable for payment of US$114,749.80 and 50% of costs is set aside with costs.

1. Under Article 34(2) of the Arbitration Act (Model Law), courts may only set aside arbitral awards on limited grounds, including where the award conflicts with public policy. An award violates public policy only where it constitutes palpable inequity that is outrageous in its defiance of logic or accepted moral standards (ZESA v Maposa standard). 2. Parties who participate in arbitration proceedings based on a statement of claim without objecting to its scope waive their right under Article 4 of the Model Law to later claim the arbitrator exceeded his mandate. 3. Acknowledgment of debt by an authorized agent acting within the scope of agency interrupts prescription. 4. An arbitral award imposing joint and several liability on a non-signatory to the arbitration agreement who acted merely as an agent violates fundamental principles of arbitration and contract law. 5. Arbitral awards are severable where the invalid portion is clearly separable from the valid portion and the valid portion was in no way affected by the invalid portion - the court need not set aside an entire award where only a discrete portion is defective.

The court noted with concern the procedural irregularities in the arbitration, particularly the absence of an agreed statement of facts and issues to be determined, though acknowledged that under Article 19 of the Model Law, arbitrators have discretion to conduct proceedings as they deem fit. The court also observed that force majeure requires circumstances that make performance totally impossible and destroy the whole basis of the contract, not merely circumstances that diminish performance. General economic conditions affecting all persons in a jurisdiction (such as sanctions, currency challenges, electricity blackouts) will not constitute force majeure absent proof of specific impact on the claimant. The court expressed approval for the principle that arbitration is a consensual adjudication process and parties agree to accept awards even if wrong, provided proper procedures are followed, reinforcing the limited scope for court intervention. The judgment also discussed international and South African authorities on severability (Palabora Copper, William Hare UAE) as persuasive authority despite being based on different arbitration statutes, given the common foundation in the Model Law and the principle of agreement to arbitrate.

This case is significant in Zimbabwean arbitration law for: (1) Confirming the restrictive approach to setting aside arbitral awards and applying the public policy test from ZESA v Maposa; (2) Establishing that parties who participate in arbitration proceedings without objecting to the scope of the claim waive their right to later challenge the arbitrator's mandate under Article 4 of the Model Law; (3) Clarifying that acknowledgment of debt by an authorized agent can interrupt prescription; (4) Providing guidance on when force majeure will be rejected, particularly where general economic conditions affect all persons equally and the claimant fails to prove specific impact; (5) Most importantly, introducing the principle of severability of arbitral awards into Zimbabwean jurisprudence - allowing courts to sever invalid portions of an award while preserving valid portions where the bad part is clearly separable and does not affect the remainder; (6) Confirming that non-signatories to arbitration agreements cannot be dragged into arbitration proceedings and held liable, protecting the consensual nature of arbitration.