In Zimbabwe the legislation enacted to give effect to domestic and international arbitration agreements is the Arbitration Act (Chapter 7:15). This statute and the regulations made thereunder also govern enforcement of foreign arbitration awards or mediated settlements issued under a different legal system. The Civil Matters (Mutual Assistance) Act (Chapter 8:02) and the regulations made thereunder governs enforcement of foreign court judgments. Since two different legal regimes apply, enforcement of arbitration awards and foreign court judgments is going to be dealt with separately in this paper.
Enforcement of foreign court judgments
This is governed by Civil Matters (Mutual Assistance) Act (Chapter 8:02) (to be referred to as the Act) and the regulations made thereunder. Section 3 of this Act extends the application of the Act to the judgments of any international tribunal designated for that purpose. The word “judgment” is defined in section 2 of the Act to mean “a judgment or 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”.
In terms of section 5 of the Act, a judgment creditor under a judgment from a designated country may apply to an appropriate court for the registration of that judgment in the appropriate court within six (6) years from the date of judgment or a determination of any proceedings by way of appeal or review where such proceedings have been instituted in respect of the judgment. In terms of Civil Matters (Mutual Assistance) (Designated Countries) Order, 1998 (SI 65/98) as read with statutory instrument 360/98, 9/99 and 129/2003, the designated countries are as follows:
Australia, Dominica, Germany, Ghana, Portugal, South Africa, Italy, Zambia, Slovak Republic, Bulgaria.
It becomes apparent that only judgments from designated countries can be registered for enforcement in terms of the Act. Foreign court judgments from other countries can only be registered in terms of common law. A foreign judgment constitutes a separate cause of action1.
Zimbabwe courts tend to adopt a narrow definition of a judgment in terms of the Act. In Gramara (Pvt) Ltd & Another vs. Government of the Republic of Zimbabwe & Others 2010 (1) ZLR 59 (H) (the Gramara case) the Applicant had approached the court seeking registration of a judgment obtained in the now defunct Southern African Development Community Tribunal (the Tribunal) in the case of Mike Campbell (Pvt) Ltd & Others vs. The Republic of Zimbabwe Case No. SADC (T) 2/2007, for the purposes of enforcement in Zimbabwe. The court held that the judgment that the applicants sought to register was essentially declaratory and injunctive in nature and is not one sounding in money. On this basis, registration in terms of the Act was refused. The court further held that decisions of the SADC Tribunal are not registrable or enforceable in terms of Chapter 8:02 for the simple reason that the Tribunal had not been specifically designated under the Act.
However the court seems to have been amenable in enforcement of foreign judgments in the Gramara case (supra) when regard is had to its construction of section 25 of the Act. The court stated that section 25 expressly acknowledges that the Act does not derogate from other laws and provides that:
“This Act shall be regarded as additional to, and not as limiting the provisions of any other law relating to the recognition and enforcement of foreign judgments, the service of process or the taking of evidence, whether on commission or otherwise.”
This appears to leave room for the operation of common law in enforcement foreign court judgments. This is in line with the canon of interpretation that that the common law cannot be ousted except by clear language or in express terms. In English and South African jurisdictions foreign judgments are recognised and enforced under common law as well2.
The requirements for recognition and enforcement of foreign judgments in terms of common law are as follows;
- the court which pronounced the judgment had jurisdiction to entertain the case according to the principles recognised by local law with reference to the jurisdiction of foreign courts,
- the judgment is final and conclusive in its effect and has not become superannuated,
- the recognition and enforcement of the judgment by our Courts would not be contrary to public policy,
- the judgment was not obtained by fraudulent means,
- the judgment does not involve the enforcement of a penal or revenue law of the foreign State3,
Zimbabwean authorities do not seem to diverge from the South African position. Proceedings for the recognition and enforcement of foreign judgments are usually instituted in the High Court. The application for registration must be accompanied by a certified copy of the judgment to be executed. If the judgment is in a foreign language, it must be translated and certified by the Registrar of the issuing Court confirming that such judgment is final and enforceable together with a brief of the facts leading to the judgment.
Enforcement of foreign arbitral awards
This is governed by the Arbitration Act (Chapter 7:15) and associated regulations. Zimbabwe applies the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on the 21st June, 1985. It has also ratified and domesticated the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in New York on the 10th June, 1958. The legislation giving effect to the Convention is the Arbitration Act.
Recognition and enforcement of foreign arbitral awards is dealt with under CHAPTER VIII Article 35 (1) of the First Schedule to the Arbitration Act. This Schedule contains the United Nations Commission on International Trade Law (UNCITRAL) Model Law, with modifications. It provides that an arbitral award, irrespective of the country in which it was made, shall be recognised as binding and, upon application in writing to the High Court, shall be enforced subject to the provisions of this article and of article 36.
The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language4.
In Josam Enterprises (Pvt) Ltd v Svenhe & Anor 15-HH-714 the court held that the provisions of Article 35 does not apply to awards made in labour disputes sought to be registered at the Magistrates Court.
*By Brighton Mahuni (LLB. Hons, Partner)