Trustco Mobile (Pty) Ltd and Trustco Group International (Pty) Ltd v Econet Wireless (Pvt) Ltd and First Mutual Life Assurance Group

On 17 August 2011, the first applicant and first respondent concluded an agreement whereby the first applicant would license intellectual property (the "Trustco Mobile Concept") to facilitate provision of free life insurance cover to Zimbabwean cellular phone users. The agreement was amended in January 2011. Differences arose between the parties, leading the first applicant to approach the court urgently in HC 6065/11. On 25 July 2011, a provisional order was granted in the applicant's favour, directing the first respondent to restore internet-based reporting links and access to hardware/software, and to refrain from implementing competing services. Instead of complying with the order, the first respondent noted an appeal to the Supreme Court on 27 July 2011 (SC 171/11). The applicants then filed the instant urgent chamber application on 4 August 2011 seeking leave to execute the judgment pending appeal.

• Whether the judgment in HC 6065/11 is appealable given that it was granted pursuant to Article 9 of the Model Law on International Commercial Arbitration
• Whether leave to execute pending appeal should be granted
• What principles apply when determining applications for leave to execute pending appeal
• The effect of Article 9(4) of the Arbitration Act which provides that decisions made under Article 9(1) shall not be subject to appeal
• Whether the balance of convenience and preponderance of equities favour granting leave to execute

A provisional order was granted in the following terms: (1) Pending determination of the dispute by arbitration, the provisional order in HC 6065/11 shall remain operational notwithstanding any appeals filed by respondents; (2) First respondent shall pay costs of the application. Interim relief granted: First and second applicants are allowed to execute the judgment in HC 6065/11 dated 25 July 2011 notwithstanding the first respondent's appeal under SC 171/11.

Where a High Court decision is made pursuant to Article 9 of the Model Law on International Commercial Arbitration (granting interim measures of protection in arbitration matters), that decision is not subject to appeal by virtue of Article 9(4) of the Arbitration Act. In determining applications for leave to execute pending appeal, courts apply the preponderance of equities test, considering factors such as irreparable harm, balance of convenience, and prospects of success on appeal. Where a judgment is not appealable, for the stronger reason, compelling justification must be shown for refusing leave to execute. The Model Law provisions incorporated into the Arbitration Act have the force of statutory provisions and must be given effect.

The court noted that it was not tasked with, nor competent to, debate or review the propriety of the decision in HC 6065/11. The court also mentioned that after the hearing, parties were invited to make written submissions on the effect of Lloyd Guwa and Another v Willoughby's Investments (Pvt) Ltd SC 31/09, but found it unnecessary to consider that case or the written submissions in light of its findings. The applicants properly abandoned the relief sought in paragraph 2 of the interim relief (relating to the order remaining operational notwithstanding any appeal noted by first respondent).

This case is significant in Zimbabwean law (and potentially relevant to South African law given the similar arbitration framework) for clarifying that: (1) decisions made by the High Court granting interim measures under Article 9 of the Model Law on International Commercial Arbitration are not subject to appeal by virtue of Article 9(4); (2) where a judgment is not appealable, there must be compelling justification for refusing leave to execute; (3) the Model Law provisions form part of the Arbitration Act and have statutory force; and (4) courts apply the preponderance of equities test even more strongly when the underlying judgment is not appealable. The case reinforces the principle that parties cannot use invalid appeals to avoid compliance with court orders, particularly in the arbitration context where interim measures are designed to preserve the efficacy of arbitral proceedings.