The Provincial Superior of the Jesuit Province of Zimbabwe v Godfrey Kamoto and Other Residents at Manresa Farm

The appellant owned Manresa Farm, a 417.931 hectare piece of land in Harare. The respondents were families residing on the farm, some with the appellant's authority and others without. In 1975, Manresa was incorporated into the Greater Harare Area. In 1998, the Harare City Council advised that the settlement was unlawful and needed regularization. The appellant attempted to include residents in development plans, but the Council rejected high and medium density schemes due to sewerage limitations, approving only a low density scheme. Only one respondent could afford to purchase a stand. The appellant offered relocation assistance to authorized households; some accepted and moved, others accepted but remained. The appellant sought eviction in the High Court. The parties agreed to arbitration. The arbitrator found any occupation agreements void under s 39(1) of the Regional Town and Country Planning Act and that the appellant had no obligation to pay compensation or relocation expenses. The respondents challenged the award in the High Court as contrary to public policy. The High Court set aside the award, finding the arbitrator made a gross mistake regarding compensation. The appellant appealed to the Supreme Court.

• Whether the arbitral award was contrary to the public policy of Zimbabwe
• Whether the respondents had a legal right to continue residing at Manresa Farm
• Whether the appellant had a legal obligation to compensate the respondents for their houses or provide relocation assistance
• The correct interpretation and application of the public policy exception to arbitral awards under Article 34 of the UNCITRAL Model Law as incorporated in the Arbitration Act

1. The appeal is allowed with costs. 2. The order of the High Court is set aside and replaced with: (a) The application to set aside the arbitral award dated 8 November 2004 is dismissed. (b) The arbitral award of 8 November 2004 is registered as a judgment of the High Court of Zimbabwe. (c) The respondents are to bear the costs of suit.

An arbitral award will only be set aside as contrary to public policy under Article 34 of the UNCITRAL Model Law if it violates a fundamental principle of law or morality, constituting a palpable inequity so outrageous in its defiance of logic or accepted moral standards that a sensible and fair-minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award. Mere incorrectness in fact or law is insufficient. The public policy exception must be construed restrictively to preserve the basic objective of finality in arbitration. An agreement conferring occupation rights over land for more than ten years without a permit issued by the relevant Council is void under s 39(1) of the Regional Town and Country Planning Act. A landowner has no legal obligation to compensate unauthorized occupiers or provide relocation assistance where eviction is necessitated by regulatory requirements, even if the landowner initially permitted occupation, absent enrichment or a valid enforceable agreement.

The Court observed that the responsibility for resettling the respondents would have rested firmly on Government through the relevant Ministry, as both the Council and Government have the authority to acquire land for resettlement purposes. The Court noted that Government became involved at a superficial level but failed to resettle the respondents. The Court acknowledged that while the eviction of the respondents is a sad development, this cannot be said to be against public policy in the circumstances. The Court also noted that the appellant's attempts to provide compensation and relocation assistance were motivated by moral rather than legal obligation, and that there was no agreement between the parties on compensation, contrary to the High Court's finding.

This case is significant in Zimbabwean jurisprudence for: (1) clarifying the restrictive interpretation of the public policy exception to arbitral awards under the UNCITRAL Model Law; (2) establishing that an award is not contrary to public policy merely because it is wrong in fact or law, but only if it violates fundamental principles of law, morality or justice in an outrageous manner; (3) affirming the principle of finality in arbitration proceedings; (4) interpreting s 39(1) of the Regional Town and Country Planning Act regarding unauthorized occupation of land; (5) establishing that landowners have no automatic legal obligation to compensate unauthorized occupiers or provide relocation assistance when eviction becomes necessary due to regulatory requirements; and (6) recognizing that responsibility for resettlement of displaced persons rests with Government, not private landowners, even where the landowner initially permitted occupation.