The High Court of Zimbabwe has upheld an arbitral award in a commercial dispute between Tsambika Bakaris, Executor Director of the Estate of the late Constantinos Bakaris, and Nanavac Investments (Pvt) Ltd trading as Choppies Zimbabwe.
The judgment, delivered by Justice Gladys Mhuri recently, arose from two applications filed before the court.
The first application (HC 5162/22) sought the registration of the arbitral award issued in favor of Choppies Zimbabwe, while the second application (HC 5505/22) challenged the validity of the award.
Justice Mhuri noted that both parties agreed that the resolution of one application would determine the outcome of the other. He then proceeded to address the arguments raised in the application seeking to set aside the award.
Tsambika Bakaris, the Estate Executor, argued that the arbitral award was in conflict with public policy on three grounds.
Firstly, they claimed that the Arbitrator, T.R. Mafukidze, had formulated the issues for determination without the parties’ agreement.
Secondly, they contested the Arbitrator’s jurisdiction to hear the matter. Finally, they argued that the arbitral proceedings breached the rules of natural justice as they were not afforded equal treatment.
Justice Mhuri dismissed all three grounds raised by the Estate Executor.
Regarding the formulation of issues, the judge pointed out that the dispute between the parties was clear from the pleadings submitted during the arbitration. He explained that Arbitrator Mafukidze had merely streamlined the issues for consideration.
On the issue of jurisdiction, Justice Mhuri highlighted a clause within the lease agreement between the parties which stipulated arbitration as the primary dispute resolution mechanism.
The judge, additionally, referenced the Arbitration Act, which allows contractual disputes to be settled through arbitration regardless of any jurisdiction conferred on courts by other enactments.
Justice Mhuri addressed the claim of unequal treatment. While acknowledging that the Estate Executor raised points of law concerning res judicata and lack of jurisdiction, he pointed out that these arguments were not formally pleaded as required.
In contrast, Choppies Zimbabwe’s point regarding a recent court order was relevant to the ongoing dispute and did not require special pleading.
The judge ruled that the arbitral award did not violate Zimbabwe’s public policy. Consequently, the application to set aside the award (HC 5505/22) was dismissed with costs.
The dismissal automatically meant the approval of the application for registration of the arbitral award (HC 5162/22).
As per the agreement between both parties, the arbitral award issued by Arbitrator Mafukidze on May 18, 2022, was registered as an order of the High Court.
Choppies Zimbabwe was awarded costs on a legal practitioner and client scale.
