Webster Mandikonza and Jack Mandikonza v Cutnal Trading (Pvt) Ltd and Others

The first and second applicants were farmers in Nyanga who entered into a contract with the first respondent in August 2003 for financing their potato crop for the 2003-2004 season. The contract required applicants to grow a certain hectarage of potatoes and sell table and seed potatoes to the first respondent. The hectarage to be grown exceeded the sizes of farms allocated to the applicants, and the sale of seed potatoes to the first respondent was prohibited by law. The agreed sale price for table potatoes was significantly lower than market price. A dispute arose between the parties regarding whether a subsequent agreement was reached for sale to the open market with 50% of proceeds going to the respondent. The contract contained an arbitration clause, and the dispute was referred to the second respondent (the arbitrator) who awarded certain sums payable by the applicants. When the applicants did not pay, the first respondent registered the award with the High Court and obtained a warrant of execution. The third respondent (Deputy Sheriff) attached the applicants' farm equipment. The applicants brought an urgent application to stop the sale of their equipment pending their application to set aside the arbitral award.

• Whether an application for recognition and enforcement of an arbitral award should be made to a Judge or to the Registrar of the High Court
• Whether notice to the other party is a requirement when an application for recognition and enforcement of an arbitral award is made
• Whether the proper procedure under Articles 35 and 36 of the Arbitration Act No. 6 of 1996 was followed in registering and enforcing the arbitral award
• The proper interpretation of the words 'High Court' and 'court' in Articles 35 and 36 of the Arbitration Act

The court granted a final order: (1) The warrant of execution of property issued on 3 November 2004 under case no. HC 11698/04 was set aside; (2) The 3rd respondent was ordered to return to the applicants all property that was attached and removed pursuant to the writ of execution; (3) The respondent was ordered to pay the applicants' costs.

An application for recognition and enforcement of an arbitral award under Articles 35 and 36 of the Arbitration Act No. 6 of 1996 must be made to a Judge of the High Court, not the Registrar. The application must be in the form of a proper court application in terms of Rule 226(1) of the High Court Rules 1971, with notice to the party against whom the award is to be enforced. The words 'High Court' and 'court' in Articles 35 and 36 refer to a Judge of the High Court, not administrative officers in the Registrar's office. Failure to comply with this procedure is fatal to the recognition and enforcement of an arbitral award, rendering any warrants of execution issued pursuant to such invalid recognition themselves invalid.

The court noted that the underlying contract between the parties appeared to contain problematic terms: the hectarage the applicants were to grow exceeded the sizes of their allocated farms; the sale of seed potatoes to the first respondent was prohibited by law; and the agreed sale price for table potatoes was significantly lower than market price. However, the court expressly stated that in view of its conclusion regarding the improper recognition and enforcement procedure, it was unnecessary to consider whether the applicants' application for setting aside the arbitral award on grounds of being contrary to public policy had prospects of success. The court also noted that counsel for both parties agreed that a final order should be granted rather than confining the matter to granting or dismissing the provisional order, as the matter had been exhaustively argued.

This case is significant in Zimbabwean arbitration law as it establishes the proper procedure for recognition and enforcement of arbitral awards. It clarifies that such applications must be made to a Judge of the High Court through a proper court application with notice to the other party, rather than being an administrative registration process through the Registrar. The judgment provides important guidance on the interpretation of Articles 35 and 36 of the Arbitration Act No. 6 of 1996 and emphasizes the importance of procedural compliance in enforcing arbitral awards. The case reinforces the principle that enforcement of arbitral awards requires judicial oversight and cannot be treated as a mere administrative function.