HARARE – The Zimbabwean High Court rescinded a default judgement against the United Nations Children’s Fund (UNICEF) after the Minister of Foreign Affairs and International Trade argued the court lacked jurisdiction due to the agency’s immunity.
Justice Tawanda Chitapi, presiding over the case, ruled in favour of the Minister, Frederick Shava, setting aside the July 7, 2021, judgement.
The initial judgment, granted in favour of Destiny Ventures (Proprietary) Limited (Botswana), pertained to an arbitration award related to a 2012 contract for the rehabilitation of water and sewerage systems in Plumtree Town.
Destiny Ventures had successfully applied to have the arbitration award, largely in their favour, set aside due to UNICEF’s failure to respond to the court application.
Frederick Shava, in his capacity as Minister of Foreign Affairs, argued that the government of Zimbabwe had a “real and substantial interest” in the matter, as UNICEF, being a United Nations agency, enjoys privileges and immunities under international law.
He asserted that the court lacked jurisdiction to set aside the arbitral award, citing the final and binding nature of such awards and UNICEF’s protected status.
The Minister was represented by lawyers from the Civil Division at the Attorney Generals’ Office while Destiny Ventures had Scanlen Holderness as its legal practitioners.
The court’s decision hinged on a prior ruling by Justice Gladys Mhuri, who had granted the Minister condonation for the late filing of the rescission application.
Justice Chitapi noted that Justice Mhuri had already determined the issues of the reasonableness of the delay and the prospects of success of the Minister’s defense, including the crucial matters of UNICEF’s immunity and the court’s jurisdiction.
Justice Chitapi stated that the government of Zimbabwe is “duty bound to intervene in cases involving conduct which impacts on the privileges and immunities of United Nations bodies.”
He further stated that Rule 29(1)(a) of the High Court Rules allows “any affected party” to seek rescission of a default judgement, not just the originally cited defendants.
The respondent, Destiny Ventures, had raised objections regarding the Minister’s locus standi and the validity of the rescission application. However, the court dismissed these objections, citing the previous ruling by Justice Mhuri and the government’s obligation to protect UN agencies.
The court also addressed Destiny Ventures’ arguments regarding UNICEF’s alleged waiver of immunity by participating in the arbitration. Justice Chitapi concluded that the Minister had shown “good and sufficient cause” for the rescission, highlighting the international nature of the issues and the need for a hearing on the merits.
“Rescission of default judgment is a remedy in which the court exercises judicious discretion in considering whether to grant or refuse rescission. I hold that the applicant has shown good and sufficient cause for the grant of the relief of rescission of the default judgment.
“The applicant has bona fide prima facie defences to the application for setting aside the arbitral award and it cannot be said that he wants to defend the matter as a delaying mechanism.
“The issues involved in this matter are of international character and have to do with the observance of United Nations member states relationships.
“It is in the interests of justice as Mhuri J found in the application for condonation that finality to the matter be brought about by having the dispute brought before the court with affected parties being heard and a decision made on the merits,” Justice Chitapi stated.
The default judgment was set aside, with costs to be determined in the main case. Destiny Ventures was given 10 days to file its opposing affidavit to the original application.
