Triback (Private) Limited v Stephen Archieford Taruona and Sharon Taruona

The applicant (Triback Private Limited) entered into an agreement of sale with the respondents (Stephen Archieford Taruona and his wife Sharon Taruona) in March 2017. The first respondent was a former employee of the applicant who was retrenched in 2017 owing approximately US$492,000.00 to the applicant. The respondents signed an agreement to sell their property to the applicant for US$365,000.00 to be deducted from the outstanding loan. A loan agreement provided for withholding US$18,000.00 to cover rates, levies, electricity and taxes due, with any balance to be paid to the first respondent. The respondents failed to attend ZIMRA interviews for Capital Gains Tax assessment as required by the agreement. The applicant referred the matter to arbitration. On 18 February 2019, arbitrator Mativenga Lloyd Mhishi rendered an award in favor of the applicant, ordering the respondents to take all necessary steps to facilitate the transfer of the property and for the applicant to pay the remainder of US$18,000.00 after settlement of the respondents' financial obligations. The respondents initially applied to set aside the award under HC3559/19 but withdrew that application on 11 December 2019. The applicant then sought registration of the arbitral award, but the respondents opposed, arguing the award was contrary to public policy and disputing whether payment should be in US dollars or the newly introduced local currency following Zimbabwe's currency changes in 2019.

• Whether the application complied with Article 35(2) of the Model Law regarding submission of the original or certified copy of the arbitration agreement and award
• Whether the respondents' opposing affidavits were invalidated by allegedly forged signatures
• Whether the court could vary an arbitral award by changing the currency denomination from US dollars to local currency when registering the award
• Whether registration of the arbitral award would be contrary to public policy
• Whether parties could use opposition to an application for registration of an award to challenge matters that should have been raised in an application to set aside the award

The arbitral award dated 18 February 2019 was registered as an order of court in its original form, including: (1) registration of the award; (2) respondents to obtain Capital Gains Tax Clearance Certificate within 7 days; (3) respondents to take all steps to register transfer of property; (4) Sheriff authorized to sign transfer documentation if respondents fail to comply; (5) applicant to pay respondents the remainder of US$18,000.00 after settlement of respondents' financial obligations; (6) respondents to pay applicant's arbitral costs on Law Society scale; (7) respondents to pay arbitrator's fees and expenses; and (8) no order as to costs of the application.

When a court hears an application for registration of an arbitral award, it does not exercise review or appellate powers and cannot inquire into the merits or correctness of the award. The court's role is limited to registration for enforcement purposes. A court cannot vary or substitute terms of an arbitral award during registration proceedings, even to reflect changes in currency legislation - such matters should be addressed through the arbitrator under Article 33 of the Model Law or through a proper application to set aside the award. Opposition to registration of an award cannot be used as a means to challenge matters that should have been raised during arbitration or through an application to set aside. To refuse registration on public policy grounds under Articles 34 or 36 of the Model Law, it must be shown that the reasoning or conclusion in an award constitutes 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.

The court observed that both parties were at fault for failing to resolve the currency dispute within the parameters set by law. The court noted that the proper course would have been for the parties to submit themselves before the arbitrator in terms of Article 33 of the Model Law for appropriate relief regarding the currency issue, rather than continuing to haggle between themselves. The court commented that a notice of opposition is a shield and not a means of attack. The court also observed that ordinarily it is the party whose signature was allegedly forged who should be challenging the authenticity of their own signature, not the opposing party. The judgment noted that there is no law requiring a person's signature to be consistent on every document they sign, and allegations of forgery require expert evidence from a questioned document examiner.

This case clarifies the limited role of courts in Zimbabwe when hearing applications for registration of arbitral awards. It establishes that courts cannot inquire into the merits of an award or vary its terms during registration proceedings - such challenges must be brought through proper applications to set aside or through requests to the arbitrator for correction/clarification under Article 33 of the Model Law. The case is significant in the context of Zimbabwe's currency transition period (2019), holding that courts registering pre-existing awards cannot unilaterally convert currency obligations to reflect subsequent legislative changes. The judgment reinforces the principle that opposition to registration is not a mechanism to challenge an award's substantive correctness, and that public policy objections require demonstration of palpable inequity that is outrageous in its defiance of logic or accepted moral standards, consistent with the ZESA v Maposa test.