M Bhika Brothers (Private) Limited t/a BK Investments v Nerveway Trading (Private) Limited and Others

The applicant, M Bhika Brothers (Pvt) Ltd t/a BK Investments, owned premises known as Silke House, Harare, where all four respondents were tenants. The applicant gave three months' notice to vacate the premises to effect significant renovations. All respondents refused to comply with the notice. The matter was referred to arbitration. The arbitrator confirmed the validity of the notices given to the first, second and third respondents and ordered termination of their leases, giving them fourteen days to vacate from 23 March 2021. The arbitrator also ordered them to pay holding over damages until vacation. The claim against the fourth respondent was dismissed. The first, second and third respondents advised they would not vacate and would challenge the award. The applicant then applied for registration of the arbitral award (HC 1338/21), while the second and third respondents filed applications to set aside the award (HC 3281/21 and HC 2366/21 respectively). The matters were consolidated by consent.

• Whether there was compliance with Article 35 of the Model Law regarding authentication and certification of the arbitral award for registration purposes
• Whether there was a proper first respondent before the court given that the deponent falsely claimed to be a director
• Whether the arbitral award offended against public policy on the basis that the arbitrator reversed the onus of proof
• Whether the award violated section 56(1) of the Constitution by treating similarly situated parties differently (compared to fourth respondent)
• Whether proper notice of termination was given in terms of clause 8 of the lease agreement
• Whether silence in response to notice amounted to acceptance of cancellation
• Whether the clause providing for deemed acceptance upon failure to respond within 30 days violated the constitutional right to be heard
• Whether the intended renovations justified eviction of ground floor tenants when works appeared to relate only to the second floor

1. The application for registration of the arbitral award (HC 1338/21) was granted and the arbitral award dated 23 March 2021 was registered as an order of the High Court of Zimbabwe. 2. The applications for setting aside the arbitral award (HC 3281/21 and HC 2366/21) were dismissed. 3. The first, second and third respondents and all those claiming occupation through them were ordered to give vacant possession of Silke House forthwith. 4. The first, second and third respondents were ordered to pay holding over damages from 1 November 2020 until vacation at specified monthly rates (US$800, US$1,500, and US$950 respectively, or local currency equivalent). 5. The first, second and third respondents were ordered to pay the applicant's costs of arbitration on a party to party scale. 6. The first, second and third respondents were ordered to pay costs of suit on an ordinary scale.

1. An arbitral award will only be set aside or refused registration on public policy grounds if the reasoning or conclusions constitute 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 would be intolerably hurt by the award. 2. Courts reviewing arbitral awards do not exercise appellate jurisdiction and will not assess the correctness of an arbitrator's findings on fact or law. 3. Article 35(2) of the Model Law is satisfied by providing either a duly authenticated original award or a duly certified copy thereof; the legislative intent is to ensure authenticity and prevent fraud, not to allow parties to frustrate arbitration on technical grounds. 4. It is a fundamental principle of public policy that contracts freely and voluntarily entered into by parties of full capacity must be enforced according to their terms; courts will not rewrite contracts or excuse parties from consequences of onerous terms they accepted. 5. New arguments not raised before the arbitrator cannot be entertained in proceedings for registration or setting aside of an arbitral award. 6. The principle that he who alleges must prove applies in arbitration proceedings.

The court expressed strong disapproval of the fraudulent conduct of Tawanda Nhengu in falsely representing himself as a director of the first respondent, describing it as a calculated deception. The court warned that in future it would not hesitate to order costs de bonis propris (personally against the individual) for such conduct. The court also criticized Mugomeza and Mazhindu law firm for failing to verify that Tawanda Nhengu was indeed a director of the first respondent, stating this was a serious dereliction of duty by officers of the court. The court noted with suspicion that the board meetings of the first, second and third respondents authorizing opposition were allegedly held on the same date and time, and that the resolutions had identical font and style, suggesting impropriety. While the court was tempted to order punitive costs against Tawanda Nhengu personally, it did not do so in this instance but indicated it would consider such orders in future cases.

This case is significant in Zimbabwean arbitration law as it reinforces the limited grounds for setting aside or refusing registration of arbitral awards under the UNCITRAL Model Law. It emphasizes that courts will not act as appellate bodies to review arbitrators' findings on facts or law, and will only intervene on public policy grounds where there is a palpable inequity that is outrageous in its defiance of logic or accepted moral standards. The case also affirms the principle of sanctity of contracts and that courts will not rewrite contracts freely entered into by parties, even if terms appear onerous. It clarifies that Article 35(2) authentication requirements are meant to prevent fraud, not to allow procedural obstruction. The judgment also addresses professional conduct issues, warning legal practitioners of their duty to verify authority of deponents and threatening costs de bonis propris for failures in this regard.