HUSAIHWVHU & ORS v UZ-USF COLLABORATIVE RESEARCH PROGRAMME 2010 (2) ZLR 448 (H)

Flynote

Arbitration - award - registration - grounds on which registration may be refused - public policy defence - limited application of- effect of error on part of arbitrator - not sufficient to set aside award-failure to plead public policy defence - not fatal if defence manifest from record

Headnote

In dealing with applications seeking to set aside arbitral awards, the approach to be adopted is to construe the public policy defence, as set out in art 36(1)(b)(ii) of the First Schedule to the Arbitration Act [Chapter 7:15], as being applicable to either a foreign or domestic award, restrictively in order to preserve and recognize the basic objectivity of finality in all arbitrations, and to hold such defence applicable only if some fundamental principle of the law or morality or justice is violated.

An award by an arbitrator is not contrary to public policy merely because the arbitrator was wrong in law or in fact in reaching the conclusion that he arrived at.

Consequent upon an arbitral award which had been made in favour of the applicants, an application was made to the High Court for its registration by the applicants in terms of s 98(14) of the Labour Act [Chapter 28:01]. It was opposed by the respondent. At issue was the award of an arbitrator concerning what salaries and benefits were due by the respondent to its employees, the applicants. Notwithstanding that the respondent had failed to raise the point in its pleadings, it was argued on its behalf that the arbitrator's award was in error and contrary to public policy for purposes of art 36(1)(b) of the First Schedule to the Arbitration Act, and as such should not be registered. Other than a bald statement to that effect the respondent had placed no facts before the court to establish that the award was contrary to public policy

Held, that even though it had not been specifically pleaded, if indeed there was clear evidence on record that the award was contrary to the public policy of Zimbabwe, then that defence must be considered.

Held, further, granting the registration with costs, that whether or not thearbitrator erred was not an issue and should not concern the court in considering whether registration in terms of the Labour Act should be granted. The issue to be decided was whether the award was so outrageous in its defiance of logic and acceptable moral standards as to result in an injustice that was contrary to public policy. This had not been established.