Minister of Foreign Affairs and International Trade v Destiny Ventures Ltd Botswana

On 7 July 2021, the High Court of Zimbabwe issued a default order against UNICEF in case HC 741/21 in a matter between Destiny Ventures (Proprietary) Ltd (Botswana) and UNICEF. The Minister of Foreign Affairs and International Trade sought to have this order rescinded but was late in filing the application for rescission. The Minister filed an application for condonation of late filing on 16 November 2021, four months after the default order was issued. The Minister averred that he became aware of the proceedings on 20 July 2021, instructed legal practitioners to apply for joinder, but only became aware of the order after 19 October 2021 through UNICEF (which had received it on 31 August 2021). The contract between the parties contained clause 22 providing for arbitration as the final resolution of disputes. UNICEF is a member of the United Nations enjoying privileges and immunities under the 1948 Convention on Privileges and Immunities of the United Nations. The arbitration proceedings had been conducted in South Africa, not Zimbabwe.

• Whether condonation should be granted for late filing of an application for rescission of a default order
• Whether the explanation for the delay was satisfactory
• Whether the applicant had good prospects of success in the main application for rescission
• Whether the High Court of Zimbabwe had jurisdiction to set aside an award by the Permanent Court of Arbitration
• Whether UNICEF's privileges and immunities under the 1948 Convention affected the Court's jurisdiction
• Whether the arbitration clause in the contract (clause 22) bound the parties to arbitration as the final resolution of disputes

1. The application for condonation of late filing of the application for rescission of the default order issued under HC 741/21 and extension of time within which to file the application was granted. 2. The applicant was ordered to file his application for rescission within 10 days of the granting of the order. 3. Each party to bear its own costs.

In applications for condonation of late filing, while all the Kodzwa factors must be considered (degree of non-compliance, explanation for delay, prospects of success, importance of the case, respondent's interest in finality, convenience of the court, and avoidance of unnecessary delay), condonation may be granted despite an unsatisfactory explanation for delay where: (1) the applicant demonstrates good prospects of success in the main matter; (2) the case raises issues of great legal importance (such as UN privileges and immunities, jurisdictional questions, and enforcement of arbitration agreements); and (3) it is in the interests of both parties to bring finality to the litigation through a determination on the merits.

The Court observed that the first three Kodzwa factors (degree of non-compliance, explanation for delay, and prospects of success) are the most critical in applications for condonation. The Court noted that issues involving immunity, jurisdiction, and waiver in respect of foreign organs of the United Nations are of such importance that parties should be afforded the opportunity to argue them in Court, even where procedural deficiencies exist. The Court also noted that bringing finality to litigation is an important consideration that can outweigh procedural shortcomings.

This case is significant in Zimbabwean jurisprudence as it addresses the interaction between domestic court jurisdiction and international arbitration awards, particularly where United Nations organs with diplomatic privileges and immunities are involved. It demonstrates the courts' willingness to grant condonation despite unsatisfactory explanations for delay where there are good prospects of success and important legal issues at stake, including questions of sovereignty, international law, and the enforcement of arbitration agreements. The case reinforces the principle that courts should allow parties to argue substantive issues involving UN immunities and jurisdictional challenges to arbitration awards, even if procedural compliance has been delayed.