PIONEER TRANSPORT (PVT) LTD v DELTA CORPORATION & ANOR 2012 (1) ZLR 58 (H)

Flynote

Arbitration — award — setting aside of — agreement between parties that decision of the arbitrator be final — no bar to proceedings before High Court to set aside award

Arbitration — award — setting aside of — award contrary to public policy — applicant has to establish that the award is contrary to public policy even if award is incorrect in order to succeed.

Arbitration — award — setting aside of — failure of applicant to comply with award before commencing proceedings — no need for applicant to do so

Practice and procedure — parties — "clean hands" — requirement to come to court with — applicability — application to set aside arbitral award — applicant not having complied with award — no requirement to comply with award before approaching court for relief under Arbitration Act [Chapter 7:15]

Headnote

Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15] allows for the setting aside of an arbitral award by the High Court in very restricted circumstances. The court is empowered to set aside an arbitral award if the applicant who wishes to have it set aside establishes that the award is in conflict with the public policy of Zimbabwe. In an application in terms of art 34 to set aside an arbitral award, the applicant raised three main points. He alleged, firstly, that the arbitrator had acted outside the provisions of the enabling agreement between the parties; secondly, that he had wrongly rejected the argument that the respondent's claim had prescribed; and thirdly, that the arbitrator had failed to have regard to certain bilateral and reciprocal obligations which, the applicant alleged, existed in terms of the agreement, as well as the principles of unjust enrichment. In respect of each of these points, the applicant submitted that the public policy of Zimbabwe had been infringed and that the award, as a consequence, should be set aside. In response thereto, the respondent drew attention to the agreement, which was concerned with the supply of heavy vehicles by the applicant for use by the respondent for delivery purposes, and submitted that none of the respondent's points were in any way in conflict with the public policy of Zimbabwe. It was the respondent's argument that the applicant wanted the award set aside upon the simple basis that the arbitrator (so it was alleged) had come to the wrong conclusion on the facts and on the law and that the applicant's case was no more than a disguised review.

In addition, in its opposition on the merits, the respondent also took two points in limine. It argued firstly that the applicant should not be heard until it had complied with the arbitrator's award. Until it had done so, its hands were dirty. In its second point in limine, the respondent referred to clause 18 of the agreement between the parties. That clause provided that the decision of the arbitrator would be binding on each party in respect of any dispute arising out of or in connection with the agreement. Accordingly, so argued the respondent, the applicant could not have recourse against the award in the present proceedings. E Held, that in regard to the respondent's first objection in limine, the applicant could not be expected to comply with the arbitrator's award before commencing proceedings in the High Court. To do so would defeat the object of article 34 of the Model Law which bestows upon a party the right to apply for the setting aside of an arbitral award upon the grounds set out therein. Held, further, that in regard to its second objection, the respondent could not avail himself of the provisions of clause 18 of the agreement between the parties. Notwithstanding that clause, once the parties had referred the dispute to arbitration and the award had been made, the jurisdiction of the High Court was unfettered. It was seized with an application for setting aside the award and it had jurisdiction to decide the matter on its merits. Held, further, and on the facts, that the applicant had failed to establish that the award given in favour of the respondent, even if incorrect, was contrary to the public policy of Zimbabwe in any of the respects alleged. That being the case, the application to set aside the award must be dismissed with costs on the ordinary scale.