Riozim Limited and RM Enterprises (Private) Limited v Maranatha Ferrochrome (Private) Limited and Justice November Tafuma Mtshiya (RTD)

The first appellant (Riozim Limited) and first respondent (Maranatha Ferrochrome) entered into a shareholders' agreement on 19 January 2010, whereby the first appellant was to transfer 40% of shares in the second appellant (RM Enterprises, its wholly owned subsidiary) to the first respondent. On 29 January 2017, the first respondent notified the first appellant of breach for failing to transfer chrome claims as agreed, and referred the dispute to arbitration before the second respondent (an arbitrator). At arbitration, the first appellant raised preliminary objections regarding the arbitrator's jurisdiction, the validity of the arbitration agreement, joinder of the second appellant (who was not party to the arbitration clause), and that the claim had prescribed. The arbitrator (second respondent) dismissed all preliminary points, finding he had jurisdiction, the second appellant was bound by the agreement, and the claim had not prescribed because demand for performance was only made on 30 January 2018. The appellants applied to the High Court under Article 34 of the Model Law (Arbitration Act) to set aside this interim award. The first respondent raised a preliminary objection that the appellants were out of time, as Article 16(3) required them to apply within 30 days to challenge the jurisdiction ruling. The High Court upheld this objection and dismissed the application, holding that Article 34 applies only to final awards, not interim awards, and that the appellants had used the wrong procedure.

• Whether an interim arbitral award (ruling on preliminary points) can be set aside under Article 34 of the Model Law
• Whether a challenge to an arbitrator's ruling on jurisdiction must be brought exclusively under Article 16(3) within 30 days
• Whether the distinction between 'rulings' and 'awards' in the Model Law affects the appropriate procedure for challenge
• Whether an arbitrator's decision on prescription can be challenged under Article 34 as an interlocutory award
• The proper interpretation of 'award' in Article 34 - whether it is generic or limited to final awards

1. The appeal partially succeeded regarding the arbitrator's decision on prescription, but was struck off the roll regarding jurisdiction and validity of the arbitral agreement, with each party bearing its own costs. 2. The High Court judgment was set aside and substituted with: 2.1 The application to set aside the arbitrator's ruling on jurisdiction and validity of the arbitral agreement is a nullity and struck off the roll. 2.2 The application to set aside the arbitrator's interlocutory award on prescription shall proceed to a hearing on the merits. 3. The case was remitted to the High Court to hear and determine the application regarding prescription on the merits.

A preliminary ruling by an arbitral tribunal on its jurisdiction under Article 16 of the Model Law is distinct from an award and can only be challenged by requesting the High Court to decide the matter within 30 days under Article 16(3). Such a ruling cannot be challenged under Article 34, which provides for setting aside of awards. However, the term 'award' in Article 34 is used in its generic sense and includes interim, interlocutory and partial awards, not only final awards terminating arbitral proceedings. An arbitrator's decision on matters outside jurisdiction and validity of the arbitration agreement (such as prescription) constitutes an interlocutory award that can be challenged under Article 34. The deliberate use of distinct terminology ('ruling' versus 'award') in the Model Law must be given effect according to principles of statutory interpretation requiring that every word be given meaning.

The court made observations on statutory interpretation principles, citing Keyter v Minister of Agriculture (1908) that courts must give effect to every word in a statute unless necessity compels otherwise, and R v Kirk (1914) that courts must interpret what the legislature actually said, not what it may have intended to say but did not. The court also noted that while caution should be exercised in following decisions based on modified Model Laws from other jurisdictions, such interpretations are not automatically irrelevant - what matters is whether the modifications are contrary to the correct contextual interpretation of the Model Law provisions. The court emphasized the importance of international uniformity in interpreting the Model Law as required by section 2(3) of the Act, citing Courtesy Connection (Pvt) Ltd v Mupamhadzi (2006) with approval.

This case is significant in Zimbabwean arbitration law for clarifying the distinction between 'rulings' and 'awards' under the Model Law (First Schedule to the Arbitration Act). It establishes that: (1) challenges to an arbitrator's preliminary ruling on jurisdiction under Article 16(3) must be brought within 30 days and cannot later be challenged under Article 34; (2) the word 'award' in Article 34 is used generically and includes interim, interlocutory and partial awards, not only final awards; (3) decisions on issues beyond jurisdiction and validity of the arbitration agreement (such as prescription) can be challenged under Article 34 even if made during preliminary proceedings; (4) courts must interpret the Model Law with regard to its international origin and the need for international uniformity (section 2(3)); and (5) every word in a statute must be given meaning - the deliberate use of different terminology ('ruling' vs 'award') reflects different legal consequences. The judgment provides important guidance on remedies available at different stages of arbitration and the applicable time limits.