Portnex International (Pty) Limited v Zimasco (Private) Limited & Kevin Terry N.O.

### Preamble
Judgment No SC 59/25
1
Chamber Application No SC 541/24
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REPORTABLE (59)

PORTNEX     INTERNATIONAL     (PTY)   LIMITED

v

ZIMASCO     (PRIVATE)     LIMITED     (2)     KEVIN     TERRY     N.O.

SUPREME COURT OF ZIMBABWE

HARARE: 15 OCTOBER 2024 & 11 JULY 2025

Ms A.S Ndlovu and Ms T. Shava, for the applicant

D .Tivadar, for the first respondent

No appearance for the second respondent

IN CHAMBERS

KUDYA JA:

[1]	The applicant seeks the reinstatement of its appeal which was automatically regarded as abandoned and deemed dismissed by the Registrar on 29 August 2024 for failure to pay security for costs in case No. SC 448/24.

[2]	It seeks the following order:

“1.	The application for reinstatement of an appeal in case number SC 448/24 be and is hereby granted.

2. The appeal in case number SC 448/24 be and is hereby accordingly reinstated.

3.	 The failure to pay security for costs in time in case number SC 448/24 be and is hereby condoned.

4. Leave be and is hereby granted for applicant to pay security for costs in case SC 448/24 out of time.

5. 	Applicant shall pay security for costs for case SC 448/24 within 3 days of granting this order.

6. 	There shall be no order as to costs.”

THE PARTIES

[3]	The applicant (lessee) is a South African incorporated company, which is registered as a foreign company under the laws of Zimbabwe.  It was placed under business rescue in South Africa on 5 March 2020 and is not trading in either of the two countries.  The first respondent (lessor) is a locally registered company. The second respondent is the arbitrator who presided over a dispute between the applicant and the first respondent.  In this judgment I will, where appropriate, refer to the applicant and the first respondent as the parties.

THE BACKGROUND FACTS

[4]	The facts are generally common cause.  I have also had regard to the more detailed content provided in Case No. SC 412/23, a voluminous matter encompassing some 1 460 pages, which was struck off the roll, on 17 October 2023. I did so in terms of the pronouncement articulated by the Court in Mhungu v Mtindi 1986 (2) ZLR 171 (S) at 173B that:

“In general, the court is always entitled to make reference to its own records and proceedings, and to take note of their contents.”

[5]	The parties consummated a Furnace Leasing Agreement (lease agreement) on 29 June 2017.  It was to subsist until 31 December 2020.  The lease agreement also covered various facilities and amenities. The full spectrum of fees chargeable under the entire agreement comprised lease fees, services fees, security fees and insurance fees.  An elaborate mechanism for computing these fees is set out in clause 8 of the lease agreement.

[6]    The lease fees were set at US$ 45 per metric tonne (MT) of saleable ferrochrome alloy produced by the lessee from the furnaces.  This amount was reviewable quarterly “based on the European Ferrochromium benchmark price.”  In terms of clause 8.9, on default of payment of any of the prescribed fees, the lessor was entitled, on 48 hours’ notice, “to take ownership of an equivalent tonnage of Portnex ferrochrome calculated from the first day of default of any payment.” An elaborate formula was provided in that clause for the valuation of the appropriated ferrochrome alloy.  The valuation was to be based, firstly, on the “Average Chinese Bid Price” computed from the preceding monthly average bid price of three named Chinese companies less certain prescribed costs and charges.  Secondly, on “the monthly average exchange rate in the preceding month as published by the Bank of China”.

[7]	On 22 February 2019, SI 33/19 drastically changed the monetary landscape in Zimbabwe. The change was entrenched on 24 June 2019, when SI 142/19 decreed the Zimbabwe dollar as the sole legal tender for all domestic transactions save for a few specified ones. On 21 August 2019, these preceding changes were retroactively validated by the Finance Act (No.2) Act 7 of 2019 (the Act).

[8]	On 3 April 2019, the lessor issued an invoice in the sum of US$281 059.09. The invoice comprised lease fees of US $58 425.50 and services fees in the sum of US $222 634.09. It was payable on 10 April 2019. It was however paid under the hand of Buckler Investments (Pvt) Ltd, the lessee’s agent, on 16 May 2019.

[9]	On due dates, the lessor duly issued rental invoices denominated in United States dollars for the subsequent months from April to August 2019 and in local currency until November 2019.  The invoices for each of these months were issued on the 4th, 6th or 7th day of the subsequent month.  The lessee defaulted in making payment.  The lessor duly took ownership of an aggregate of 4 507.55 tonnes of saleable ferrochrome alloy                    in lieu of the unpaid lease fees on 27 September, 11 October and 30 November 2019.

[10] 	Soon after the promulgation of SI 142/19, the lessee took legal advice on the effect of                   SI 33/19 on the lease agreement.  Negotiations between the parties on the payment of outstanding lease fees, the refund of US $281 059.09 and return of the 4 507.55 tonnes of ferrochrome alloy broke down.

THE ARBITRAL PROCEEDINGS

[11]	Resultantly, the parties referred the dispute to arbitration.  By consent of the parties, the arbitrator determined the dispute in two stages.

[12]	The sole issue for determination at the first stage, in the arbitrator’s own words, “was solely one of interpretation of the effects of SIs 33, 142 and 212 of 2019 on a contract of lease entered into between the parties on 29 June 2017.” To wit, the arbitrator rendered a “Partial Award” on 2 March 2020. It reads:

“(a).	That the Claimant is successful in its claim that the amounts owed in terms of the contract of lease were affected by SI 33/19 and that from the effective date became payable in RTGS dollars.

(b).	That the respondent is ordered to pay the claimant’s costs on a legal practitioner and client scale.

(c).	That this partial award will be converted into a final award if no further matters relating to the dispute are referred to me before 31 March 2020.”

[13]	On 27 March 2020, the lessee proceeded to seek the refund of the rentals paid in United States dollars in the sum of US$ 281 059.99 and the return of 4 508.33 tonnes of ferrochrome alloy appropriated by the lessor in lieu of unpaid rentals.  It premised its claim on the condictio indebiti.

[14]	On 20 May 2020, the lessor, in turn, sought the setting aside of the partial award in the High Court, in Case No. HC 2446/20.  During its pendency, the lessor further sought the recusal of the arbitrator on 20 August 2020 in Case No. HC 4335/20.  The application for setting aside was dismissed with costs on 29 January 2021 in judgment No. HH 34/21 on the basis that the court could not interfere with unterminated arbitral proceedings. At p 6 of the cyclostyled judgment the High Court concluded the application thus:

“The parties are directed to deal with all the issues which they placed before the arbitrator with the result that only one arbitral award which is divided into two parts is allowed to come out of the proceedings.”

The application for recusal was struck of the roll with no order as to costs on 28 April 2021 in judgment No HH 205/21 on the basis of issue estoppel arising from judgment No. HH 34/21.

[15]	At the resumed hearing before the arbitrator, the lessee called the evidence of                                 Mr Malandu. The lessor led the evidence of Mr Mpofu.  Mr Mpofu further produced detailed schedules of the lessee’s outstanding indebtedness, which after factoring in the lessee’s claims, stood at US$3 738 704.

[16]	The arbitrator rendered his “Final Award” on 4 February 2022. He made the following findings of fact. The lessee had not settled its post 22 February 2019 indebtedness to the lessor in local currency, even after it had received an opinion from its legal practitioners on the effect of SI 33/19.  It consciously elected to discharge its obligations in United States dollars before 24 June 2019. The payment in kind was sanctioned by the lease agreement, which passed ownership of the appropriated ferrochrome to the lessor. The payment in cash and kind did not fully discharge the lessee’s indebtedness. Even after making these two payments, the lessee remained indebted to the lessor.

[17]	The arbitrator adverted to and applied the three essential elements of a condictio indebiti, which are set out in the case of Georgias & Anor v ZDB Financial Services Ltd 2000 (2) ZLR 447 (H) at 450A.  The lessee failed to show on a balance of probabilities that it made the payments under an inadvertent or mistaken belief that performance was due. The arbitrator stated that:

“I therefore find that there is sufficient doubt as to whether the payment was made in error and as a result, that the claimant is not entitled to relief under the condictio indebiti.”

[18]	In keeping with the directions given by the High Court in case No. HC 2446/20, the arbitrator made a single “final” award which incorporated the “partial award.” The award reads as follows:

“1.	The Claimant is successful in its claim that the amounts owed in terms of the contract of lease were affected by SI 33/19 and that from the effective date became payable in RTGS dollars.

2.	I however find that the claimant is not entitled to reimbursement of the amount of US $281 059.99 as the claimant was not able to show that the relief sought under the condictio indebiti was available to it.

3.	I find that the claimant is not entitled to the return of the quarantined crushed clean ferro alloy.

4.	I have considered the cost award made in the partial award and consider that although it was unduly and likely incorrectly punitive against the respondent, it should remain as such in the light of the respondent’s legal stratagem that I have referred to above.

5.	As far as the balance of matters now covered in this Final Award, I award costs in favour of the respondent. In addition, I award costs on a legal practitioner and client scale to the respondent for the wasted costs occasioned by the withdrawal of the “Supplementary Claim” also referred to above.”

He thus dismissed the claims for the refund of the United States dollars paid on 16 May 2019 and the return of the appropriated ferrochrome with costs.

[19]	Unhappy with the award, the lessee sought its vacation in the court a quo on 20 April   2022.  It did so on the basis that it was contrary to the public policy of Zimbabwe, in violation of Article 34 (2) (b) (ii) of the Arbitration Act [Chapter 7:15].

THE PROCEEDINGS IN THE COURT A QUO

[20]	The court a quo dismissed the application with costs.  On p 4 of its judgment the court set out what a condictio indebiti entails in the following way:

“Pursuant to the partial ward (sic), applicant filed a claim for the refund of US                  $281 059.99 it claimed was erroneously paid to the first respondent (condictio indebiti) and return of 4 580.33 metric tonnes of ferro alloy quarantined by the first respondent.” (My underlining for emphasis).

[21]	The ratio decidendi of the court a quo appears at pp 4-5. It reasoned that:

“As regards the second claim in respect of the refund, the arbitrator found against the applicant, to wit, that it was not entitled to a refund as it was unable to show that the relief under the condictio indebiti was available to it. He also found that applicant was not entitled to the return of the quarantined ferro alloy.  He did not interfere with his award of costs against the first respondent in the partial award but awarded costs against applicant in the final award.  He did not go outside the terms of reference.

It is clear from a reading of both the partial and final awards that the issues placed before the arbitrator were different. In the first award the issue as alluded to earlier was the interpretation and effect of the said statutory instruments (SI 33/19,                           SI 142/19 and SI 212/19) whereas the second award was a claim for the refund of money and other items. Whilst I am alive to the fact that I am not hearing an appeal, I find from a reading of the final award that, contrary to applicant’s contention the arbitrator did not fail to appreciate to align the final award with the partial award. A reading of the entire award shows that the arbitrator was well versed with the requirements of condictio indebiti. He considered them vis a vis the “evidence” placed before him and made the finding he did. The same goes for the refund of the quarantined ferrochrome.

Can it be said to be so outrageous, irrational and hence against the public policy of Zimbabwe to make a finding that: “if the claimant, with full knowledge of the changes in legislation, had nevertheless decided to make a payment in US$ for whatever reason, then the condictio indebiti, is not available as a cause of action. Simply saying ‘we paid in US$ and we needn’t have’ is insufficient to discharge the onus”. I agree with the respondent that it is not. Equally so it does not offend public policy to hold that the applicant cannot insist on the return of the alloy when it has not led any evidence that the alloy is still in respondent’s possession two years later, and that there was no real attempt to claim substitution of similar alloy, and further that first respondent legally exercised its rights in terms of the contract. It was a term of the contract that for failure to pay the lease fees first respondent takes an equivalent of the ferrochrome.

In my considered view, the award does not make justice and one’s sense of justice spin on its head. There is nothing outrageous about the arbitral award to warrant its setting aside.” (my emphasis)

[22]	The court a quo found that the partial award and the final award dealt with different issues. It proceeded to dismiss the application with costs on the twin bases that the lessee had not established, firstly, that the payment for the March 2019 rentals in United States dollars was either a mistake or was not due. Secondly, that the relief of specific performance sought by the return of the quarantined ferrochrome alloy was still a viable option some two years later.  It therefore held that, the factual findings of the arbitrator, being consonant with our adjectival law, could not be construed as being contrary to the public policy of Zimbabwe.

THE APPEALS TO THE SUPREME COURT

[23]	The applicant appealed the refusal to vacate the arbitral award in case No. SC 412/23. The matter was struck off the roll at the hearing on 17 October 2023 because the notice of appeal did not comply with the provisions of r 37 (1) (e) of the Supreme Court Rules, 2018.  The relief sought was not exact.  Thereafter, in case No. SC 638/23, the applicant sought condonation and extension of time within which to appeal the refusal to set aside the arbitral award.  The application was, after contest, duly granted with costs on 17 July 2024.

THE PRESENT APPLICATION

[24]	The applicant duly filed a new notice of appeal on 23 July 2024 under case No.                             SC 448/24.  On 25 July 2024 the lessor’s erstwhile legal practitioners proposed security for costs in the sum of US$3 500.  By letter dated 29 July 2024, the lessee’s legal practitioners undertook to take instructions and respond before 6 August 2014.  They did so on 14 August 2024 and attached a receipt issued by Messrs Atherstone and Cook for security for costs paid on 12 July 2024, for a different matter between parties.  On 26 August 2024 the lessor’s legal practitioners enquired whether the security for costs had been paid.  To wit, they were requested to set the amount.  On 29 August 2024, at the instance of the lessor’s legal practitioners, the registrar invoked the provisions of r 55 (6) of the Supreme Court Rules, 2018. She regarded the appeal in case No. SC 448/24 as abandoned and deemed it dismissed.

[25]	The registrar’s notice prompted the applicant to file the present application under r 70 (2) of the Supreme Court Rules, 2018, within the prescribed 15 days, on 17 September 2024. The lessor contests the application.

THE LAW

[26]	The requirements for an application for reinstatement are settled. It is an indulgence granted on good cause shown.  Rule 70 (2) of the Supreme Court Rules, 2018 prescribes that:

“(2) The appellant may, within 15 days of receiving any notification by the registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause shown.”

[27]	The import of the subrule was pronounced in Conju Incorporated (Pvt) Ltd v Registrar of the Supreme Court SC 28/20 at p 6 thus:

“In an application for the reinstatement of an appeal that was regarded as abandoned and deemed to have lapsed the applicant must show good cause for the default. In doing so, the applicant is required to satisfy the court firstly, that he or she has a reasonable explanation for the delay in question and secondly, that his or her prospects of success on appeal are good.” (Underlining for emphasis).

[28]	The requirements were articulated in more detail in Maheya v Independent Africa Church 2007 (2) ZLR 319 (S) at 323B-C in the following manner:

“The question for determination is whether the applicant has shown a cause for the reinstatement of the appeal. In considering applications for condonation of non-compliance with its Rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice.  Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefore; the prospects of success on appeal; the importance of the case; the respondent’s interests in the finality of the judgment; the convenience to the court and the avoidance of unnecessary delays in the administration of justice.”

See also Doves Funeral Assurance (Pvt) Ltd v Harare Motorway (Pvt) Ltd & Ors, SC-64-23 at p 5, Makoni v ZEC SC 123/21 at p7-8; Forestry Commission v Moyo 1997 (1) ZLR 254 (S), Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S), Machaya v Munyambi SC 4/05; Ester Mzite v Damafalls Investments (Pvt) Ltd SC 21/18.

[29]	Both Ms Ndlovu for the applicant and Mr Tivadar for the first respondent argued the application on the basis of the extent of the non-compliance with the rules, the reasonableness of the explanation thereof and prospects of success.

[30]	The condonation and extension of time relates to the failure to pay security for costs in the period prescribed in r 55 (5) of the Supreme Court Rules, 2018. The extent of the non-compliance and the reasonableness of the explanation thereof therefore concern the condonation in question. The prospects of success are common to both the condonation and the reinstatement.

THE EXTENT OF THE DELAY AND THE REASONABLENESS OF THE EXPLANATION THEREOF

[31]	It is common cause that the security for costs ought to have been paid by 23 August 2024.  The present application was filed on 17 September 2024.  There has been a delay of three weeks.  I agree with Ms Ndlovu that this is not an inordinate delay.

[32]	The explanation proffered by the applicant and supported by its erstwhile instructing legal practitioner Ms Shava in her supporting affidavit is that it was an inadvertent administrative error.  The explanation calls into question the manner in which the legal practitioner in question handled the particular file in question.  It is ordinarily expected that a legal practitioner would direct all correspondence concerning a particular case to its appropriate file.  There is no explanation on whether this was done.  Nor is there an explanation on the fate of the correspondence exchanged with the first respondent’s legal practitioners between 25 July 2024 and 14 August 2024.  If such correspondence was in the particular file relating to this matter, it is inconceivable that the legal practitioner in question would have attached as proof of payment of security for costs a receipt that was receipted before she even filed the appeal in case No. SC 448/24.  Again, had she applied her mind to the correspondence dated 25 July, 29 July and 14 August 2024, she would hardly have requested the first respondent to set the amount for security for costs.  Further, had she received the security for costs requested in the letter of 25 July 2024, as she asserted in her supporting affidavit, one would have expected her to produce proof of such receipt, either by attaching a copy of a receipt as she did in respect of the amount paid to Messrs Atherstone and Cook or by reference to her Trust account. I agree with Mr Tivadar that the explanation proffered by the applicant for the delay is highly unreasonable. Like Patel JA (as he then was) in Merchant Bank of Central Africa v Manzini & Ors SC 58/17 at p 5 I hold that:

“Despite her candour and apparent contrition surrounding her cavalier conduct, there is no doubt that Ms Shava’s explanation for non-compliance in casu cannot pass the test of reasonableness measured by any objective standard”. (Highlighted replacements for gender and name of the legal practitioner in that case).”

THE PROSPECTS OF SUCCESS

[33]	The adjectives that have preceded the requisite prospects of success have variously been “arguable”, “reasonably arguable” as in S v Tengende 1980 ZLR 445 (S) at 447B; S v Mutasa 1988 (2) ZLR 4 (S) at 9B , “good”, “reasonable”, “some” “strong” such as in           Tel-one (Pvt) Ltd v Communication and Allied Services Workers Union of Zimbabwe 2006 (1) ZLR 143 (S) at 145C; Kereke v Maramwidze SC 86/21 at p.10 and Synohydro Zimbabwe (Pvt)Ltd v Townsend Enterprises (Pvt) Ltd & Ors SC 27/19 at p 9;    The locus classicus case invariably cited by judges of this Court in recent times is the South African Supreme Court of Appeal case of Essop v S  2016 ZASCA 114 at p 6, that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a different conclusion to that of the trial court.  In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.  More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless.  There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

[34]	To similar effect was Ebrahim JA in the case of S v McGown 1995 (2) ZLR 81 (S) at 83H-84A where he stated that:

“In my view in whatever way one wishes to formulate the test, it comes to much the same thing. Clearly it would be appropriate to refuse an application that has little or no prospects of success or one that is frivolous. But where there is substance in the argument, there must ipso facto be a reasonable prospect of success.”

[35]	Again in the case of S v Mutasa 1988 (2) ZLR 4 (S) at 9B, this Court emphasized that the test for prospects of success is one of reasonable prospects of success. It said:

“In my opinion, the test to be applied when considering an application for leave to appeal under r 19 (8) of the Rules of the Supreme Court is whether the applicant has a reasonable prospect of success on appeal. If he has, then leave to appeal should be granted. If he has not, then leave to appeal should be refused.”

[36]	The test of reasonable prospects of success therefore postulates the dispassionate decision based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different from the trial court. See Smith v S 2012 (1) SACR 567 (SCA).

[37]	The prospects of success require an evaluation of the averments embodied in the founding affidavit, the judgment sought to be impugned and the intended grounds of appeal. See Prosecutor General v Intratek & Anor 2019 (3) ZLR 106 (S) at 114.  A judge engaged in this exercise is obviously not determining the intended appeal but is merely considering whether an applicant has demonstrated reasonable prospects of success in an application of this nature.

[38]	The intended appeal will seek the setting aside of the arbitral award made by the arbitrator on 4 February 2022.  Courts in this jurisdiction construe public policy in arbitration cases restrictively. Two related principles underpin this position. Firstly, arbitration, is an expeditious and inexpensive alternative dispute resolution method that underlies the parties’ freedom of contract.  Secondly, such agreements invariably underscore the finality of an arbitrator’s decision.  It will therefore be an ineffective process if it were made a part of the appeal process characteristic of ordinary litigation.  See Alliance Insurance v Imperial Plastics (Private) Limited and Anor SC 30/17 at p 10 and ZESA v Maposa 1999(12) ZLR 452 (S) 465D and 466 E-G.  In the Maposa case, Gubbay CJ said:

“An award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or in law. In such a situation the court would not be justified in setting the award aside.

Under article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair-minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it.

The same consequence applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”

[39]	In my view, Makarau JA (as she then was) pithily captures the import of these words in TN Harlequin Luxaire Ltd & Anor v Quest Motors Manufacturing (Pvt) Ltd SC 30/18 at p 10 para [40] and Jogi v Bulchimex GmbH Import-Export Chemikalen Und Produckte & Ors SC 47/21 at p 8 when she stated that:

“It must make justice and one’s sense of justice spin on its head.”

[40]	It is also settled that when a court assumes jurisdiction under the Arbitration Act              [Chapter 8:13] it does not exercise appeal powers.  See Ropa v Rosemart Investment (Pvt) Ltd & Anor 2006 (2) ZLR 283 (S) 286 B-D and Peruke Investments (Pvt) Ltd v Willoughby’s Investments (Pvt) Ltd & Anor 2015 (1) ZLR 491 (S)

[41]	The reasoning of the court a quo that the applicant intends to impugn is set out in paras 20 and 21of this judgment.

[42]	The applicant intends to rely on the following grounds of appeal:

“1.	The court a quo erred in not coming to the conclusion that the final award rendered by the arbitrator was substantively contradictory to the partial award that gave rise to it and was for that reason at variance with public policy.

2.	The court a quo misconstrued the matter placed before it and erred in finding that the determination on whether the lease obligations had been affected by S.I 33 of 2019 was divorced from the claim for the reimbursement of monies paid on the erroneous basis that such obligations had not been so affected.

3.	A fortiori, the court a quo erred in arriving at a conclusion that upholds an arbitration award that is fundamentally contrary to provisions of statute and negates them in their effect.

4.	The court a quo erred in upholding the arbitrator’s abdication from his responsibilities in finding as he did that the dissipation of the alloy during the proceedings, disentitled appellant from pursuing relief before an adjudicating authority.

5.	The court a quo erred in not making a determination on the material issues that were raised before it and on which its decision was required before the matter could be properly resolved.”

RELIEF SOUGHT

TAKE FURTHER NOTICE THAT appellant seeks the following relief:

1. That the appeal is allowed with costs.

2. That the judgment of the court a quo is set aside and in its place is substituted the following:

“1. 	The final award issued by second respondent on the 4th of February 2022 is set aside on the basis that it is contrary to public policy.

2.	Costs shall be borne by first respondent”

SUBMISSIONS BEFORE ME

[43]	Mr Tivadar for the first respondent attacks the first ground of appeal on the basis that it is vague in nature and is therefore not clear and concise.  He contended that this ground of appeal erroneously compares the final award with the “partial award”, yet the “partial award” is directly incorporated into the final award. He also argued that the ground of appeal does not specify the finding of fact or law made by the court a quo that the applicant seeks to impugn nor indicate why such a finding is wrong.  Ms Ndlovu properly conceded the point.

[44]	I am satisfied that the prospective first ground of appeal is meaningless.  There is in reality a single unitary award granted by the arbitrator subsequent to the order of the High Court in Case no. 26640/20 referred to in para 14 of this judgment. In addition, the ground is merely a statement of fact and does not impugn a specific finding of law or fact made by the court a quo. The fate of such an intended ground of appeal is articulated in Kunonga v The Church of the Province of Central Africa SC 25/17 at para 35.  It must be struck out.

THE APPLICANT’S SUBMISSIONS

[45]	Ms Ndlovu submitted that there were strong prospects of success on appeal. She argued that para 1 of the award effectively meant that the lease fees, which were denominated in United States dollars in the lease agreement, were converted to local currency at the parity rate of one is to one between the United States dollar and the RTGS dollar on                    22 February 2019.  This meant, so she argued, firstly, that any subsequent lease fees became payable in the constant and frozen amount fixed on 22 February 2019.  Secondly, that any invoices issued by the lessor post that date could only be legally issued in local and not in foreign currency.

[46]	Ms Ndlovu further argued as follows.  The payment of the claimed amount was made in ignorance of the law.  It was also made under the mistaken belief that an invoice denominated in foreign currency was a valid receipt.  As it was invalid, the demand for payment stated therein was also invalid.  The invalidity also arose from the conversion of the lease fees payable into local currency on 22 February 2019.  Only lease fees payable in local currency were due.  Those sought by an invoice denominated in foreign currency was for that reason not due.  The payment was made under the mistaken belief that it was due. It ought to have been refunded.

[47]	Counsel further contended that the appropriated alloy was similarly affected and for that reason, it ought to have been returned.  She also argued that the alloy being res litigiosa, could not be dissipated.  Further, that the arbitrator could not have rewarded the lessor for wrongfully dissipating it during the subsistence of the arbitration. Lastly, she contended that the effect of the award was that the applicant should not have paid in United States dollars.

THE FIRST RESPONDENT’S SUBMISSIONS

[48]	Per contra, Mr Tivadar submitted that the lessee’s prospects were hopeless. He made the following contentions.  The refusal to refund and return flowed from the first para of the award.  The first para merely indicated that lease fees which became due and payable after the 22 February 2019 would be payable in local currency. However, during the period between 22 February 2019 and 24 June 2019 payables and receivables denominated in foreign currency were not prohibited. They were, except for specified transactions, prohibited as from 24 June 2019. Again, between 24 June 2019 and 27 September 2019, the denomination of an invoice in foreign currency was not prohibited. It was only prohibited on 27 September 2019. The factual findings of the arbitrator, which were the basis upon which the condictio indebiti was dismissed were not impugned by the lessee in the court a quo. They stand. One such finding was that payment was made after it received legal advice.  In any event the United States dollar was legal tender at the time of payment, so the payment for an amount that was due was not a mistake.  The witness Mr Malandu conceded that the lease fees were due and that even after the payments in cash and in kind, the lessee still owes the lessee.  The condictio indebiti is a common law concept. It formed the applicant’s cause of action.  SI 33/19 was not his cause of action. In any event SI 33 was not violated.  The lessor did not approach the arbitrator seeking any relief under SI 33/19.  Rather, it was the lessee who did so. A dismissal based on the application of the facts to the requisites of a condictio indebiti cannot by any stretch of the imagination be contrary to public policy.

[49]	In regards to the alloy, counsel maintained that the basis upon which the arbitrator dismissed the claim was correct.  In terms of the lease agreement, the ownership of the alloy passed to the first respondent on appropriation.  The first respondent could thereafter deal with it as it pleased.  It constituted payment in kind and could not be returned.  In the circumstances it could not be res litigiosa. In any event, the applicant could not seek to vacate the award on the basis of an obiter dictum, arising from the arbitrator’s expressed uncertainty as to whether the alloy was in existence at the commencement of the arbitral proceedings.

THE INTENDED ISSUE FOR DETERMINATION ON APPEAL

[50]	The sole issue that would arise on appeal from the grounds of appeal and the submissions is whether or not the court a quo erred in finding that the arbitration award was not contrary to public policy.

ANALYSIS

[51]	The lessee’s reasonable prospects of success on appeal are gravely affected by the answer to the question: whether the application before the court a quo was genuinely based on Article 34 or was merely a disguised appeal.

[52]   In the present application the deponent to the lessee’s finding affidavit averred that:

“36. In his final award, second respondent dismissed the claim for repayment and return of the alloy, which led applicant to appeal against the decision on the grounds that it was contrary to his findings in the partial award.

Further, the counsel who settled the lessee’s heads of argument in the court a quo, contended in para. 1.2 (i) that:

“(i). The claim became the subject of the final award. Instead of giving effect to his own partial award, the arbitrator dismissed the claim, incomprehensibly finding that it was not established. In doing so he misunderstood the law as well as the case placed before him.”

[53]	It seems to me that the lessee was in the court a quo challenging the correctness of the arbitrator’s decision.  Put differently, the lessee was impugning the arbitrator’s application of the facts he found on the condictio indebiti to his earlier interpretation of SI 33/19.  As expressly stated in para 36 and impliedly conveyed in para 1.2 (i) in para 52 of this judgment, the lessee was appealing against a part of the award. It is trite that an arbitral award cannot be appealed.  See Delta Operations (Pvt) Ltd v Origen Corporation (Pvt) Ltd 2007 (2) ZLR 81 (S) at 85 B-E and Muvuti Investments (Pvt) Ltd v Old Mutual Property Investments (Pvt) Ltd & Anor HH 422/18 at p 5.

[54]	On reasonable prospects of success arising from the prospective second ground of appeal, Ms Ndlovu submitted that the court a quo misconstrued the case before it by finding that the issues dealt with under the first stage (partial award) and the final award were different.  The essence of her submission was that the court a quo ought to have found that the issue on the interpretation of SI33/19 was singularly connected to the issue of the refund and return. By this she meant that the court a quo should have found that, as the first finding was in the lessee’s favour, the second finding ought also to have been in its favour.

[55]	It is correct that the court a quo held that the issues for determination by the arbitrator were different.  It is however incorrect to contend that it found the issues were divorced one from the other.  The court a quo stated at p 4 of its judgment that:

“It is clear from a reading of both the partial and final awards that the issues placed before the arbitrator were different. In the first award the issue as alluded to earlier was the interpretation and effect of the said statutory instruments (SI 33/19, SI 142/19 and SI 212/19) whereas the second award was a claim for the refund of money and other items.  Whilst I am alive to the fact that I am not hearing an appeal, I find from a reading of the final award that, contrary to applicant’s contention the arbitrator did not fail to appreciate to align the final award with the partial award. A reading of the entire award shows that the arbitrator was well versed with the requirements of condictio indebiti. He considered them vis a vis the “evidence” placed before him and made the finding he did. The same goes for the refund of the quarantined ferrochrome.”

[56]	Now, the arbitrator, like the court a quo, was alive to the connection between the two findings. In the prologue to his “Final Award” he wrote:

“In this matter before me the parties agreed that it would proceed in two parts. The first an interpretation of the effect of SI’s 33, 142 and 212 of 2019 on the contract of lease entered into between the parties. The second the potentially resultant claim by the claimant. This award follows on from a partial award in respect of the first part made by me on 2 of March 2020.

In the original claim filed in January 2020, claimant sought reimbursement of an amount of US $515 927, which it claimed it had overpaid by mistake, not realising the impact of the SIs referred to above and the return of 4616 tonnes of ferrochrome alloy, which had been quarantined and separately kept by the respondent……..In order for the claim of the  reimbursement of the amount paid in error because of the effect of the ruling I made in the partial award, the claimant has to rely on the condictio indebiti, ”

Indeed, in its supplementary statement of claim filed in on 5 March 2021, the lessee based the claims for refund and return on the condictio indebiti and not on SI 33/19.

[57]	The submission that the court a quo found the two findings were divorced from each is incorrect.  So is the conclusion that “such obligations had not been so affected”.  The court simply adverted to the different issues before the arbitrator, the way he reasoned and the conclusions he reached. The court a quo correctly remarked that the contention on misalignment constituted a ground of appeal, whose consideration was beyond its Article 34 jurisdiction.

[58]	Again, this lamentation by the court a quo further demonstrates that the lessee was in fact appealing against the decision of the arbitrator.

[59]	Ms Ndlovu’s further submission that the award was contrary to public policy because it in effect rewarded the lessor for wrongfully raising in April 2019, an invoice for March 2019 lease fees is difficult to fathom. In dealing with the legality of a bill of taxation denominated in United States dollar that was presented on 8 July 2019 in the case of Zizhou v The Taxing Officer & Anor SC 7/20 at pp 3-4 Makarau JA had this to say:

“The bill was presented for taxation on 8 July 2019. By that date, S.I 33 of 2019 was part of the law, having been published on 22 February 2019. The statutory instrument introduced the RTGS dollar as a currency and legal tender, and placed it on par with the bond note and the United States dollar. Although not of direct relevance to the determination of this review, S.I.33 of 2019 also decreed that all assets and liabilities denominated in United States dollars prior to the publication date were to be deemed to be in RTGS dollars at a rate of one-to one with the United States dollar. It also declared that every enactment in which an amount was stated in United States dollars was to be construed as stating the amount in RTGS dollars, at parity with the United States dollar. In addition, and more relevant to the determination of this matter, at the time the draft bill was presented for taxation, S.I. 142 of 2019 was also in force, having been published on 24 June 2019. Whilst S.I 33 of 2019 introduced the RTGS dollar as legal tender alongside the bond note and other currencies, S.I 142/19 made the local currency as set out in S.I. 33 of 2019 the sole legal tender in all transactions in Zimbabwe.”

The learned judge concluded at p 4 that:

“In light of the prevailing legal position at the time the bill was taxed, its denomination in United States dollars was in contravention of the law. The first respondent therefore erred in passing under his hand a bill that contravened the law. Accordingly, and on this basis alone, the bill cannot stand. It is the settled position at law that anything done in direct conflict with a statute is a nullity.”

[60]	I extrapolate two principles from the Zizhou case, supra.  The first is that the charging and payment of an obligation in United States dollars between the promulgation of SI33/19 and SI142/19 was not illegal. This is because the United States dollar (and all other recognized foreign currencies) was still legal tender together with the RTGS dollar. The second is that SI 33/19 declared that every enactment in which an amount was stated in United States dollars was to be construed as stating the amount in RTGS dollars, at parity with the United States dollar.  A bill of taxation, in my view has its source in an enactment as defined in s 3 (3) of the Interpretation Act [Chapter 1:01], such as the Rules of court.  It might for that reason qualify as an enactment.  A lease agreement, however, is certainly not an enactment.

[61]	The contention by Ms Ndlovu that the raising of an invoice denominated in United States dollars on 3 April 2019, by the lessor, and its satisfaction by the lessee on 16 May 2019 were unlawful cannot be correct.  This finding would dispose of the further argument that the lease fees for March 2019 to which the invoice related were not due.  Mr Malandu, the sole witness called by the lessee conceded that he paid the money because it was due. He further conceded that he was not mistaken when he did so.

[62]	It will be recalled that it was the lessee who claimed the refund on the basis of the condictio indebiti. It was its counsel of choice who provided the arbitrator with all the requisite authorities on this concept such as the seminal case by Chatikobo J of Georgias & Anor v ZDB Financial Services Ltd, supra and the further case City of Harare v Zimucha 1995 (1) ZLR 285 (S) at 292E.  In the latter case the Court stated that:

“The condictio indebiti arises where the payer pays believing that the payment was due, but that belief, though reasonable, was mistaken. See [Willis Faber Enthoven (Pty Ltd v Receiver of Revenue] 1992 (4) SA 202 (A).”

[63]	The arbitrator duly applied the essential elements of a condictio indebiti to his factual findings and found that they were not met.  The court a quo upheld the finding. It held that the award did not turn justice on its head nor was it outrageous or immoral.

[64]	In respect of the alloy, the lessee did not aver that appropriation was preceded by invoices raised in United States dollars. It did not avail the arbitrator with any such invoices. There are emails in Case No. 412/23, which show that commencing on 19 September 2019, before appropriation started on 27 September 2019, the lessor was demanding payment in local currency.  What certainly emerges from the record is that appropriation was provided for in clause 8.9 of the lease agreement.  Ownership of the alloy passed to the lessor on appropriation.  Once such ownership passed, the lessor was at liberty to dissipate the alloy.  The assertion that the alloy was available at the time of arbitration was not supported by any evidence.  While the lessee asserted the existence of the alloy in its statement of claim filed on 15 January 2020, the lessor averred in its statement of defence that the alloy was no longer in existence. Indeed, Mr Malandu, who testified for the lessee could not establish the availability of the alloy. As correctly submitted by                            Mr Tivadar, the arbitrator could not order the return of alloy which had been dissipated. The alloy could not therefore have been res litigiosa.

[65]	In the circumstance it will be remiss of the lessee to impeach the decision of the court                   a quo on the basis that the arbitrator was wrong to refuse it a return of the alloy, which had been properly taken and was in any event was not available.

[66]	I have gone to great lengths to analyse the prospective grounds of appeal in a bid to show that the intended appeal is so hopeless that it is unlikely to succeed. I, therefore agree with Mr Tivadar that there are no reasonable prospects of success on appeal.

PREJUDICE AND FINALITY

[67]	There must be finality to this matter. The sentiments expressed by Mathonsi J (as he then was) in the case of Harare Sports Club v Zimbabwe Cricket et al HH 398/19, which were quoted with approval by the Court in Legacy Hospitality Management Services Ltd v Africa Sun Ltd & Anor SC 43/22 at p 12 are apposite.  The learned judge said:

“After all, it is the parties who voluntarily submit to arbitration as an instrument for the speedy and cost-effective means of resolving their dispute. The courts are therefore more inclined to deprecate conduct of a party intent on disrespecting the agreement by undermining the process of arbitration agreed upon by the parties. Fanciful defences against registration of arbitral awards and frivolous applications seeking to set aside an award by inviting the court to plough through the same dispute which has been resolved by an arbitrator in the forlorn hope of obtaining a different outcome will not be entertained.”

[68]	The lessor is obviously incurring costs to defend the many applications lodged by the lessee, despite the evidence before the arbitrator that shows that the lessee remains indebted to it in excess of U$3m.  The lessee cannot be rewarded for dragging the lessor to court in the forlorn hope of achieving a different outcome.

COSTS

[69] The applicant indeed has the right to seek recourse in the highest court on non-constitutional matters. Its intended appeal, however, is so hopeless that I regard the present application as a complete abuse of the first respondent and the court process.  This is a proper case for imposing punitive costs.

DISPOSITION

[70]	The extent of the delay in seeking the present application is not inordinate.  However, the explanation for the delay is not reasonable. The application before the court a quo was a disguised appeal which appears to have been dismissed on a proper basis. I do not find any reasonable prospects of success. The appeal appears to me to be hopeless. It is unlikely to succeed.  It is also prejudicial to drag the first respondent to court on an appeal with very little hope of succeeding.  There must be finality to litigation.

[71]	In the circumstance the following order will issue:

“The application be and is hereby dismissed with costs on a legal practitioner and client scale.”

Madzima Chidyausiku Museta Legal, applicant’s legal practitioners.

Gill Godlonton & Gerrans, first respondent’s legal practitioners.