Enforcement of a Foreign Judgment in Zimbabwe.

The law that regulates enforcement of foreign judgments in Zimbabwe?

The enforcement of foreign judgments in Zimbabwe is regulated by the Civil Matters (Mutual Assistance) Act [Chapter 8:02] (the Act) i.e., the special regime as read with Rule 77 of the High Court Rules, 2021. A judgment creditor who has obtained a judgment in a designated country may apply for the registration of a foreign judgment in Zimbabwe.

The recognition and enforcement of foreign judgments in Zimbabwe which falls outside the scope of the special regime is dealt with under the common law. see Tiiso Holdings (Pvt) Ltd v Zimbabwe Iron and Steel Co Ltd 2010 (2) ZLR 100 (H).

What constitutes a foreign judgment in Zimbabwe?

Section 2 of the Civil Matters (Mutual Assistance) Act [Chapter 8:02] defines the term “judgment” in the context of an order given or made by any court or tribunal requiring the payment of money, and includes an award of compensation or damages to an aggrieved party in criminal proceedings.

The term “tribunal” in the context of enforcement of foreign judgments in Zimbabwe includes any tribunal, commission, body or authority, which performs a judicial function of a judicial nature or by way of arbitration, conciliation or inquiry.

The term “international tribunal” means, any court or tribunal, which in pursuance of any international agreement or any resolution of the General Assembly of the United Nations.

From the above it is clear that, declaratory and / or injunctive i.e., interim, conditional, provisional foreign judgments cannot be recognized and enforced in terms of the Civil Matters (Mutual Assistance) Act [Chapter 8:02]. Thus, the Zimbabwe courts are in terms of the Act concerned with the registration and enforcement of foreign judgments sounding in money. see Gramara (Pvt) Ltd & Another v Government of Zimbabwe and Others 2010 (1) ZLR 59 (H).

What are the requirements for the enforcement and registration of a foreign judgment in Zimbabwe?

The requirements for the registration of a foreign judgment in Zimbabwe are as follows:

(a) The foreign court (tribunal) must have had international jurisdiction or competency according to Zimbabwean law;

(b) The foreign judgment must be final and have the effect of res judicata according to the law of the jurisdiction in which it was pronounced;

(c) The foreign judgment should not have been obtained by fraudulent means;

(d) The foreign judgment does not entail the registration and / or enforcement of a penal law or revenue law of the foreign state;

(e) The foreign judgment must not be contrary to the public policy of Zimbabwe;

(f) The foreign court must have observed the minimum procedural standards of justice in arriving at the judgment.

On what grounds can the recognition or enforcement of a foreign judgment be refused in Zimbabwe?

The Zimbabwean courts will not recognize and / or enforce a foreign judgment if the court is satisfied that:

The foreign court or tribunal did not have jurisdiction;

(b) The foreign judgment is not final and conclusive;

(c) The foreign judgment could not be wholly or partly enforced in the country it was given;

(d) The foreign judgment has been set aside;

(e) The foreign judgment has been wholly satisfied;

(f) The foreign judgment has become prescribed under the law of the designated country it was given;

(g) The foreign judgment would be contrary to any law or the public policy in Zimbabwe;

(h) The foreign judgment is for the payment of any tax, rate or similar charge;

(i) The foreign judgment is the for payment of a fine or other penalty;

(j) The foreign judgment is for the maintenance of any person

(k) The foreign judgment was obtained by fraud

(l) The applicant is not a judgment creditor vested with a right to seek enforcement of the judgment;

(m) The judgment debtor was not able to appear and defend the proceedings because they did not receive notice.

Whether there are any special enforcement regimes applicable in Zimbabwe to foreign judgments from certain countries?

Yes. There are special enforcement regimes applicable to certain countries in Zimbabwe in terms of the Civil Matters (Mutual Assistance) (Designated Countries) Order, 1998.

The following are the designated countries with regards to the enforcement of foreign judgments in Zimbabwe:

(a) Commonwealth of Australia;

(b) Bulgaria

(c) Dominica;

(d) Federal Republic of Germany;

(e) Republic of Ghana;

(f) Italy

(g) Portugal;

(h) Slovak Republic;

(i) Republic of South Africa; and

(j) Republic of Zambia.

Recognition and enforcement of arbitral awards in Zimbabwe

The Arbitration Act [Chapter 7:15] (the Act) governs arbitration in Zimbabwe. The Act adopted the 1985 Model Law on International Commercial Arbitration in Zimbabwe.

The Act also domesticated the Convention and Enforcement of Foreign Arbitral Awards (the New York Convention) on the 13 th September 1996 in the country.

The Act applies the Model Law to all types of arbitrations, whether commercial or otherwise, domestic or international. See Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (SC) 463.

Neither the Act, the Model Law nor the New York Convention define the term “award”. However, Article 31(7) of the Model Law as it applies to Zimbabwe recognises different types of awards such as interim, interlocutory and partial awards. Consequently, a domestic and / or foreign arbitral award (including an interim, interlocutory and / or partial award) irrespective of the country in which it was made, can be recognised as a binding arbitral award in Zimbabwe upon application to the High Court.

Requirements for an arbitral award to be recognised and enforced in Zimbabwe

Subject to Article 35 and Article 36 of the Model Law, and the applicable rules of the court, the High Court will register an award whether commercial or otherwise, domestic or international on the application of any person who seeks the recognition and enforcement of the award.

A party applying for the registration of an arbitral award in Zimbabwe i.e., the recognition and enforcement of an arbitral award in Zimbabwe in terms of Article 35(2) is required to file a court application and furnish the court with the following:

(a) A duly authenticated original arbitration award / or duly certified copy thereof;

(b) A duly authenticated original arbitral agreement / or duly certified copy thereof;

(c) If the original arbitral award or arbitration agreement is not in English, a duly certified translation of the arbitral award and / or arbitration agreement (or both).

The grounds for refusing recognition or enforcement of an arbitral award in Zimbabwe

The recognition or enforcement of an arbitral award (domestic or international) may be refused by the High Court in terms of Article 36 of the Mode Law if:

(a) The party to the arbitration agreement was under some incapacity; or the arbitration agreement was not valid under the law to which the parties subjected it;

(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present its case;

(c) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration i.e., terms of reference, or it contains decisions on matters beyond the scope of the submission to arbitration;

(d) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place;

(e) The arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made;

(f) The subject-matter of the dispute is / was not capable of settlement by arbitration under the law of Zimbabwe;

(g) The award is / would be contrary to the public policy of Zimbabwe.

In Zimbabwe, an award would be contrary to public policy if the award was induced or effected by fraud or corruption e.g., the arbitrator was fraudulently misled or bribed by a party. An award will also be contrary to public policy in Zimbabwe, if there has been a breach in the rules of natural justice in connection with the making of the award. The rules of natural justice embrace the requirement that there must be fairness in the procedure (including the equal treatment of parties).

The effect of recognition and enforcement of an arbitral award

Different types of arbitral awards can be registered under the Model Law and the New York Convention in Zimbabwe. Whether commercial or otherwise, domestic or international, the Zimbabwean courts will normally recognise and enforce arbitral awards in terms of Article 35 and 36 of the Model Law.

An award can be recognised without being enforced. The purpose of enforcement goes a step further than recognition, and gives res judicata effect to an award. Put differently, an award is not self – executing.

Once an award has been registered i.e., recognised by the High Court in Zimbabwe it has the following effects:

(a) The recognised / registered award has the same effect as a civil judgment;

(b) The recognised award has the effect of a civil judgment for the purposes of execution;

(c) The recognised / registered award has the same effect as a final judgment of the High Court;

(d) Proceedings may be taken on a recognised / registered award.

Cases decided concerning Article 35 and 36 of the Model Law in Zimbabwe

There are a plethora of reported cases in the Zimbabwe Law Reports (ZLR) as well as unreported judgments by the superior courts in Zimbabwe on the question of recognition and enforcement of arbitral awards.

Zimbabwean courts are pro – arbitration. In the country, arbitral awards whether commercial or otherwise, domestic or international will only be refused recognition to the extent delimited by the Model Law. The courts have held that parties who submit to arbitration should respect the process and should not circumvent their agreement just because it is unfavourable to them. Consequently, the result of arbitration in Zimbabwe is respected. Herein below are some of the leading reported cases on recognition and enforcement of arbitral awards in Zimbabwe.

• Muneka & Others v Manica Bus Co 2013 (1) ZLR 81 (H);
• Trust Me Security Organisation v Mararike & Others 2014 (1) 789 (H);
• Matthews v Craster International (Pvt) Ltd 2015 (2) ZLR 374 (H);
• Botha v Gwanda Rural District Council 2018 (1) ZLR 652 (H);
• Transcom Sharaf Mozambique Lda v Manyame Milling Co (Pvt) Ltd 2019 (2) ZLR 102 (H).

Are there any treatise or reference materials which practitioners can consult to learn more about arbitration in Zimbabwe?

The main treatise and reference materials on arbitration in Zimbabwe are the following:

(a) Davison Kanokanga, Commercial Arbitration in Zimbabwe (Juta & Co, Cape Town, 2020); and

(b) Davison Kanokanga and Prince Kanokanga, UNCITRAL Model Law on International Commercial Arbitration: A Commentary on the Zimbabwean Arbitration Act [Chapter 7:15] (Juta & Co, Cape Town, 2022).

Recognition and enforcement of Investment Awards in Zimbabwe

Zimbabwe is a signatory to the Convention on the Settlement of Investment Disputes between States and Nationals of Others States (ICSID Convention). In fact, Zimbabwe ratified the ICSID Convention on the 20 th May 1994.

The Arbitration Act [Chapter 7:15] which gave effect to the Model Law on International Commercial Arbitration and the New York Convention in Zimbabwe on the 13 th September 1996 does not apply to ICSID arbitrations.

The Arbitration (International Investment Disputes) Act [Chapter 7:03] provides for the recognition and enforcement of investment awards i.e., ICSID awards in Zimbabwe.

Registration of ICSID Awards in Zimbabwe

Section 4 of the Arbitration (International Investment Disputes) Act [Chapter 7:03] governs the registration of ICSID Awards in Zimbabwe. Thus, a party can apply to the High Court for the registration of an ICSID Award in Zimbabwe. In order to succeed in an application for registration of an investment award in Zimbabwe, a copy of the award concerned, certified by the Secretary – General of the International Centre for Settlement of Investment Disputes (the Centre).

Section 4 of the Arbitration (International Investment Disputes) Act [Chapter 7:03] governs the regAn investment award may be registered for the reasonable costs of and incidental to registration, including the cost of obtaining a certified copy of the award, in addition to any other amount which is payable under the award. In at the date of the application for registration of an investment award in Zimbabwe, the award has been partly satisfied, the award may nevertheless still be registered, albeit in respect of the balance remaining at that date.