STARAFRICA CORPORATION LTD v SIVNET INVSTMS (PVT) LTD & ANOR 2011 (2) ZLR 123 (H)

Flynote

Arbitration “ award “ review “ application “ procedure to be followed “ application made in terms of High Court Rules “ when may be treated as application made under Arbitration Act

Practice and procedure “ review “ arbitral award “ procedure to be followed “ application made in terms of High Court Rules “ when may be treated as application made under Arbitration Act

Headnote

In an application for review of an arbitrator's award, the applicant did not state that the application was made in terms of art 34 of the Model Law (contained in the First Schedule to the Arbitration Act [Chapter 7:15]), but it was specifically averred that the award was in conflict with public policy as well as being grossly irregular.

Held, that an arbitration award cannot be challenged or set aside by way of review proceedings. Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paras (2) and (3) of art 34 of the Model Law.

Held, further, that the principal object of para (1) of art 34 is to ensure the finality of arbitration proceedings by defining and restricting the scope of challenges to arbitral awards. This is achieved by stipulating that any such challenge may be made only by an application for setting aside in accordance with paras (2) and (3). Paragraph (2), as amplified by para (5), sets out the substantive grounds upon which an arbitral award may be set aside. Paragraph (3) prescribes the time limit within which such an application must be made. Apart from this, art 34 says nothing more about the procedure governing an application for setting aside.

Held, further, that the differences between an application under art 34 and a review proceedings under the High Court Act [Chapter 7:06] generally are (a) that the interventionary powers of the High Court are confined to setting aside the impugned award and do not extend to any other corrective measure; and (b) that the time limit for a review application is eight weeks, subject to extension for good cause, while the period stipulated under art 34(3) is three months, without the possibility of extension. Apart from these procedural distinctions, the substantive grounds for setting aside an award, in terms of art 34(2) as read with art 34(5), are virtually the same as the grounds for review under common law and the High Court Act.

Held, further, that the requisite procedural provisions are set out in Order 32 of the High Court Rules 1971 relating to applications generally, which provisions also apply to the conduct of review proceedings under Order 33. Although Order 33 is unquestionably subsidiary legislation, its fundamental objective is to prescribe the procedure to be applied in the exercise of review powers embodied in its parent statute, the High Court Act. The procedural exigencies of the Model Law should not be seen as being in conflict with the High Court Rules. Rather, art 34 should be construed and applied in conjunction and conformity with the Rules, including Order 33, which should be treated as a complementary adjunct to the application contemplated by art 34. Article 34(1) does not exclude or preclude an application for the setting aside of an arbitral award by way of review proceedings under Order 33, provided such application is in accordance with arts 34(2) and (3), viz. premised on one or more of the grounds enumerated in art 34(2) and (5), and made within the three months time limit stipulated by art 34(3).

Held, further, that where the application for review was made within the time limits set out in the Model Law and the grounds for review were those set out in the Model Law, it would be permissible to treat the application as one made under art 34.