Eucalyptus, pine and other oils for use in the extraction of gold and other minerals by the flotation process will attract a rebate alongside chemical substances, other than spirits, methylated spirits, fuel oils, lubricants and nitrate of lead, for use in any process for the concentration or refining of ore, or for assay or research purposes.
The previous rebate given according to section 120(1)(b) of the Customs and Excise Act (Chapter 23:02) as read with section 113(1) of Statutory Instrument 154 of 2001 (General Regulations) covered capital equipment certified by the secretary of the responsible ministry for that industry and approved by the Finance minister on importation.
Also to be attached will be a proforma invoice showing the full description and quantity of the goods to be imported under the rebate, end users certificate, a letter from the mining commission to confirm the existence of that mine and valid tax clearance.
At the time of the clearance of the goods, the importer shall be required to attach the rebate letter to the bill of entry form 21. The respective regional office shall issue a rebate letter specific to the products listed in the application and the proforma invoice, Zimra added.
ICLG - Construction & Engineering Laws and Regulations - Zimbabwe covers common issues including making construction projects, supervising construction contracts, common issues on construction contracts and dispute resolution in 21 jurisdictions
1.1 What are the standard types of construction contract in your jurisdiction? Do you have: (i) any contracts which place both design and construction obligations upon contractors; (ii) any forms of design-only contract; and/or (iii) any arrangement known as management contracting, with one main managing contractor and with the construction work done by a series of package contractors? (NB For ease of reference throughout the chapter, we refer to construction contracts as an abbreviation for construction and engineering contracts.)
The Construction Industry Federation of Zimbabwe (CIFoZ) established the National Joint Practice Committee (NJPC) Standard Contracts 2000, the main one being the NJPC Building Contract together with two sub-contracts (the NJPC contracts). These contracts are largely based on the Fdration Internationale des Ingnieurs-Conseils (FIDIC) Forms of Contract and have been endorsed by FIDIC. These contracts are essentially managing contracts. The main contract is between an employer and the principal contractor, administered through an administrator who is essentially a consultant. The first sub-contract regulates an arrangement between a main contractor and a sub-contractor, while the second sub-contract regulates the agreement between an employer and any sub-contractor nominee of his choice. The NJPC contracts are largely focused on construction works but make provision for design works in cases where the design function is given to the principal contractor. There are no design-specific standard contracts in Zimbabwe, nor are these common.
In large construction projects, parties are increasingly adopting the FIDIC Forms of Contract. Contracts which place both design and construction obligations upon contractors are not uncommon and reliance is placed in this regard on the FIDIC Yellow Book. Design-only contracts are not common. Most contractors in large construction projects are foreign companies who prefer to use the FIDIC Forms of Contract.
1.2 How prevalent is collaborative contracting (e.g. alliance contracting and partnering) in your jurisdiction? To the extent applicable, what forms of collaborative contracts are commonly used?
Collaborative contracting is quite common in Zimbabwe, depending on the size of the project. The standard contracts used are the NJPC contracts as well as FIDIC Forms of Contract as detailed in question 1.1 above.
1.4 What (if any) legal requirements are there to create a legally binding contract (e.g. in common law jurisdictions, offer, acceptance, consideration and intention to create legal relations are usually required)? Are there any mandatory law requirements which need to be reflected in a construction contract (e.g. provision for adjudication or any need for the contract to be evidenced in writing)?
The general concepts of offer and acceptance and the intention to create binding legal relations (animus contrahendi) are essential requirements to any valid contract in our jurisdiction. Generally, there is no requirement for contracts to be in written form. Verbal agreements are equally binding where the terms of same are clear or easily ascertainable. However, parties are generally advised to enter into written agreements, as it is easier to prove the terms in the event of disputes arising. The parties freedom to agree on the contractual terms is subject to certain statutes such as the Contractual Penalties Act [Chapter 8:04] and Consumer Contracts Act [Chapter 8:03], which impose consumer protectionism and thereby limit the freedom to contract. Although the general law of contract is Roman-Dutch Law, parties are free to prescribe a law applicable to their agreement (lex loci) as well as the dispute resolution mechanism. For instance, parties can agree to resolution of disputes through arbitration proceedings to be held at a place of arbitration in another jurisdiction under agreed arbitration rules.
1.5 In your jurisdiction please identify whether there is a concept of what is known as a letter of intent, in which an employer can give either a legally binding or non-legally binding indication of willingness either to enter into a contract later or to commit itself to meet certain costs to be incurred by the contractor whether or not a full contract is ever concluded.
The concepts of Letters of Intent, Expressions of Interest and Memorandums of Understanding are common in our jurisdiction. Subject to agreement between the parties, these can be binding or non-binding. Such arrangements can provide mechanisms for exit/termination of rights and obligations subject to certain circumstances. It is not uncommon for parties to provide for payment of costs incurred by the aggrieved party pursuant to the transaction in the event of the substantive contracts not being concluded for reasons attributable to the other party.
1.6 Are there any statutory or standard types of insurance which it would be commonplace or compulsory to have in place when carrying out construction work? For example, is there employers liability insurance for contractors in respect of death and personal injury, or is there a requirement for the contractor to have contractors all-risk insurance?
Yes. The construction industry normally requires all-risk insurance (including third-party liability) due to the high incidence of accidents in the construction sector. It is also common for professional consultants to obtain professional indemnity insurance. In large construction projects which are funded by international institutions, lenders have also started to request procurement of political risk insurance, and completion risk insurance. The contractors are also required to procure insurance cover for the workers involved in construction work under the National Social Security Authority (NSSA) Accident Prevention and Workers Compensation Scheme (Notice No. 68 of 1990).
1.7 Are there any statutory requirements in relation to construction contracts in terms of: (a) labour (i.e. the legal status of those working on site as employees or as self-employed sub-contractors); (b) tax (payment of income tax of employees); and/or (c) health and safety?
There are some statutory requirements in respect of certain construction contracts. Generally, the law in Zimbabwe requires every company involved in construction to comply with labour, tax, health and safety laws.
Generally, occupational health and safety laws that are applicable to all employers and employees across sectors are the Labour Act [Chapter 28.01] and the NSSA Accident Prevention and Workers Compensation Scheme (Notice No. 68 of 1990). At a secondary level, there are the Protection from Smoking (Public Health (Control of Tobacco)) Regulations S.I.264 of 2002 that prohibit smoking in enclosed public places including workplaces, the Labour Relations (HIV and AIDS) Regulations S.I.202 of 1998 which prohibit discrimination on the grounds of AIDS/HIV status, the Pneumoconiosis Act [Chapter 15.08], and the Factories and Works Act [Chapter 14.08] and its regulations.
Construction contractors are allowed to employ expatriate workers with specialised skills, subject to the granting of the relevant work permits and residency permits by the relevant governmental authorities. The Engineering Council Act (Chapter 27:22) provides that no person who is not ordinarily resident in Zimbabwe, nor foreign firms, are allowed to carry out any engineering work without being registered with the Council of Engineers. Every foreign firm that wishes to perform or engage in engineering work in Zimbabwe must first register with the Council and obtain a practising certificate before undertaking any engineering work, and such certificate may only be granted for specific projects that require expertise and specialised skills or technology that are not available in Zimbabwe.
Zimbabwes tax system is a source-based system. The contractor is obliged to deduct pay-as-you-earn (PAYE) tax from the salaries of all taxable employees and remit the same to the fiscal authorities.
Section 19A of the Income Tax Act provides for the taxation of non-resident companies that operate through a permanent establishment in Zimbabwe. A permanent establishment is widely defined and would include where a fixed place of business is established in Zimbabwe. A fixed place of business is defined widely, and includes a place of management, a branch, an office, a factory, a workshop, an installation or structure for the exploration of natural resources, a mine, an oil or gas well, a quarry or any other place of extraction of natural resources, a building site, or a construction or installation project.
All qualifying contractors are required to pay corporate taxes to the fiscal authorities. A new business is required to be registered with the Zimbabwe Revenue Authority (ZIMRA) within 30 days of incorporation. All companies must appoint a public officer of the company within one month of the establishment of such office or place of business. The public officer has to be approved by the Commissioner General and is answerable for all company tax matters.
Where a contractor is not registered for tax purposes, the employer is obliged to deduct withholding tax from any payment made to such contractor pursuant to the contract and remit same to the fiscal authorities.
Under the Workers Compensation Scheme, the employer is liable for any amounts due in respect of the workers contributions to the scheme until such time as the contractor is assessed by NSSA. The employer is entitled to recover any amounts paid to NSSA pursuant to this.
1.8 Is the employer legally permitted to retain part of the purchase price for the works as a retention to be released either in whole or in part when: (a) the works are substantially complete; and/or (b) any agreed defects liability period is complete?
This normally depends on the provisions of the contract. In practice, provision is normally made for retention money, which is money that is withheld until the taking over of the works or the end of the defects liability period, whichever the parties agree to. The NJPC contracts allow for a retention of monies paid by an employer as security for completion of the works and the making good of defects. The NJPC issues, from time to time, a recommended scale of retention percentages to be used. The amount to be retained by an employer shall be the retention percentage of the value of the work and materials. The exact amount of the retention money, and when the retention money is payable, will depend on the terms of the contract.
It is not uncommon for parties to agree to the release of part of the retention money upon the taking over of the works, with the balance being paid upon expiration of the agreed defects liability period. Typically, payments will be made by the employer to the contractor at intervals based on the production of progress certificates, which must state the amount payable. The contract normally provides that a certain percentage of each of these payments stated in the certificate be withheld as the retention money.
1.9 Is it permissible/common for there to be performance bonds (provided by banks and others) to guarantee the contractors performance? Are there any restrictions on the nature of such bonds? Are there any grounds on which a call on such bonds may be restrained (e.g. by interim injunction); and, if so, how often is such relief generally granted in your jurisdiction? Would such bonds typically provide for payment on demand (without pre-condition) or only upon default of the contractor?
Performance bonds, insurance, bank and parent company guarantees are used extensively in construction projects. The nature of such bonds and guarantees is a matter of contract between employer and contractor. There are no restrictions on the nature of such bonds or guarantees. Performance bonds are mandatory in government and state-owned enterprise construction projects, especially in cases where advance payments are made to the contractor. The courts can grant an interim injunction to restrain calls on such bonds if the contractor proves to the court that the call is not warranted or there are disputes under the construction contract which have been referred to arbitration. The court ruled in one case that paying on the performance bond on demand when there are disputes between the parties would constitute denying the contractor the right to be heard and the courts will be inclined to grant the injunction pending a determination of the main dispute.
Company guarantees are permissible but not common in Zimbabwe. Whether such guarantees would be acceptable is a matter that largely depends on the agreement of the parties having regard to the stature of the holding company issuing the guarantee. Bank and insurance guarantees are generally preferred as they carry low risks of default in the event that there is a call on the guarantee.
1.11 Is it possible and/or usual for contractors to have retention of title rights in relation to goods and supplies used in the works? Is it permissible for contractors to claim that, until they have been paid, they retain title and the right to remove goods and materials supplied from the site?
It is possible for contractors to have retention of title rights in relation to goods and supplies used in the works, depending on the terms of the agreement regulating the relationship. In principle, it is permissible and normal for contractors to have retention of title rights in relation to goods and supplies used in the works, and to remove goods and materials from the site if payment is not forthcoming.
However, it should be noted that our common law of property recognises the principle of accession. If the materials permanently accede to the structure and the land, they become part of the structure and cannot be removed if such removal will cause damage to the structure. It is also not possible to contract out of the common-law principles relating to accession.
Zimbabwean law also recognises a builders or contractors lien, which operates by law and is a form of enrichment lien. The lien (ius retentionis or right of retention) entitles the holder thereof, in this case the builder, to retain possession of the property until the expenses incurred by the builder in respect of the property which are recoverable by the builder are paid to the builder. A lien is discharged after the claim is satisfied.
2.1 Is it common for construction contracts to be supervised on behalf of the employer by a third party (e.g. an engineer)? Does any such third party have a duty to act impartially between the contractor and the employer? If so, what is the nature of such duty (e.g. is it absolute or qualified)? What (if any) recourse does a party to a construction contract have in the event that the third party breaches such duty?
Yes, it is common for employers to engage project managers to supervise their projects. Generally, all public procurement work is subject to monitoring by the Procurement Board as constituted in terms of the Procurement Act (Chapter 22:07). In private contracts, subject to agreement, third parties usually act as an employers representative, in which case they will interface with the contractor, supervise compliance with the terms of the construction contract and take remedial action if necessary, and give instructions to the contractor on behalf of the employer. Alternatively, the third party could play a limited advisory role where it will monitor the contractors performance, report and make recommendations to the employer who will engage the contractor itself. The third-party project manager/supervisor must exercise its duties professionally and, to the extent possible, impartially, in order to ensure compliance with the terms of the contract and applicable laws and by-laws. If the third party acts as the employers agent, it is up to the employer to terminate the appointment in the event of breach.
It should be noted that there are also regulatory requirements for every construction site to be inspected/supervised by State/local government authorities (as part of the authorisation for construction works). In supervising construction projects, the respective government authorities may suspend construction contracts where there is a breach of law, construction norms or regulations, and only through a petition to the courts or using the courts administrative means. However, in doing so, they will be acting on behalf of the relevant local government authority or administrative institution. Each local government authority has by-laws that regulate the standards to be observed in carrying out the construction works.
2.2 Are employers free to provide in the contract that they will pay the contractor when they, the employer, have themselves been paid; i.e. can the employer include in the contract what is known as a pay when paid clause?
The construction contract, like any commercial contract, records the terms agreed to by the parties who are at liberty to agree on any terms and conditions which are not prohibited by law and which do not offend public policy. In this vein, depending on the circumstances of the case, the parties may agree that the employer will pay the contractor when the employer itself has been paid.
2.3 Are the parties free to agree in advance a fixed sum (known as liquidated damages) which will be paid by the contractor to the employer in the event of particular breaches, e.g. liquidated damages for late completion? If such arrangements are permitted, are there any restrictions on what can be agreed? E.g. does the sum to be paid have to be a genuine pre-estimate of loss, or can the contractor be bound to pay a sum which is wholly unrelated to the amount of financial loss likely to be suffered by the employer? Will the courts in your jurisdiction ever look to revise an agreed rate of liquidated damages; and, if so, in what circumstances?
It is permissible for the parties to agree in advance to the quantum of liquidated damages or penalties payable by the contractor to the employer in the event of particular breaches, e.g. liquidated damages for late completion. This is usually fixed as a percentage of the contract value, and is normally capped at 10%. These liquidated damages or penalties are, however, subject to the provisions of the Contractual Penalties Act [Chapter 8:04] where applicable. The court can reduce the penalty in cases where the penalty is out of proportion to the loss or damage suffered at the invitation of the other party. The party seeking to reduce the agreed damages must present evidence before the court to show that the actual damages or loss suffered by the party concerned are far less than the amount agreed to in the contract. This is a matter entirely in the discretion of the court.
Parties may agree on the contractual penalty being payable in case of a breach of the parties obligations under the construction contract. Zimbabwean law does not require that the amount determined as a penalty must be a genuine pre-estimate of loss. Invariably, the agreed damages are capped at amounts far less than the actual loss incurred.
Section 88 of the Procurement Act (Chapter 22:07) stipulates the manner in which such liquidated damages shall be provided in public procurement contracts where the parties have agreed to make provisions for liquidated damages.
The main requirement is that the penalty rate must be agreed by both parties in the contract and should be in the frameworks prescribed in the law (minmax). However, if the intent of the party is to compensate the financial loss, the amount must be evidenced by facts.
Normally this is to be stipulated or addressed in the contract, which ordinarily prescribes the nature and scope of the allowable variations and the procedure to be adopted where a variation to the agreed works is sought. If the contract does not provide for variations to the works, any variation of the scope of work may be performed only on the basis of an additional agreement signed by both parties in accordance with the contracts non-variation clause. Variations from design documentation require additional approval from State authorities.
It is normal for parties to agree to omission of certain works for various reasons. Such agreed omissions should preferably be recorded in the construction contract. The omitted works can be completed by the employer or a third party engaged by the employer.
Where the parties have not specifically addressed this, certain terms are implied into a construction contract by law or practice. For instance, all contracts must comply with applicable laws, and the contractor shall be obliged to follow construction norms, health, safety and environmental rules, and any other law imposed by the State, at all times.
Normally, general principles of contract apply in this regard. Certain terms, which necessarily arise from the contractual relationship between the employer and the contractor, or which are necessary in the business sense to give effect to the contract, will be implied. Implied terms may include that the employer will co-operate with the contractor, or that the employer will not deprive the contractor of possession of the construction site save in accordance with the terms of the agreement.
It may also be an implied term that the contractor will do the work in a good and workmanlike manner, use suitable material and perform his obligations in such a way as to conform to the applicable building regulations. These are just examples of implied terms. These can of course be express terms in the construction agreement.
3.4 If the contractor is delayed by two concurrent events, one the fault of the contractor and one the fault or risk of his employer, is the contractor entitled to: (a) an extension of time; and/or (b) the costs arising from that concurrent delay?
Under the NJPC, in the event of a concurrent delay attributable to both parties, the contractor would normally be entitled to an extension of time that takes into account the delay caused by the contractor. The contractor would normally not be entitled to recover costs in respect of the concurrent delay. In all instances, however, regard must be had to the facts, as there are cases where it is appropriate for the costs to be shared.
As a general rule, the limitation period for prescription of a claim (usually debts) for disputes arising from contracts is three years. The prescription period starts to run from the date the cause of action arises, that being the time from which the claimant became aware of all the facts which are necessary to enable it to prove its cause of action. Ordinarily, the limitation period starts upon final acceptance of the works (taking over), even if the contract provides for partial acceptances. However, if the contract provides for a warranty period longer than the prescription period then claims under such warranty can be made at any time during the subsistence of the warranty.
Normally, construction is carried out on the basis of design documentation. A geotechnical survey is required to be done before the construction works begin. If such survey is provided by the employer, the contractor acts on the basis of relied-upon information. Contractors are usually permitted to verify the information before a construction contract comes into effect. After it comes into effect, the contractor bears the responsibility for unforeseen ground conditions save where the failure to foresee same was a consequence of the professional negligence of the persons conducting the geotechnical survey. In any event, the obligations in the event of unforeseen ground conditions must be addressed in the construction contract.
Since changes in law affecting contractual relations are regarded as force majeure circumstances, both parties will bear the risk. However, in big construction projects of national interest which are funded by international institutions, the Project Company usually enters into an Implementation Agreement pursuant to which the government undertakes to provide relief to the Project Company where it is adversely affected by such changes in law.
Yes, the contractor is entitled to suspend works when the employer fails to fulfil its obligations under the construction agreement, such as payment, failure to provide materials, equipment, or technical documentation as may be applicable.
3.10 Are there any grounds which automatically or usually entitle a party to terminate the contract? Are there any legal requirements as to how the terminating partys grounds for termination must be set out (e.g. in a termination notice)?
A contract is usually terminated through performance, novation, release, delegation, settlement, set-off, merger, prescription, supervening impossibility and on notice given by an aggrieved party in accordance with the relevant contractual provisions if the other party has committed a material breach of the contract.
In addition, the construction contract often provides for the employers right to terminate the contract if there is a significant delay in the contractors execution of the works, or for defaults listed in the contract.
It is generally preferable to expressly set out the termination rights, and the consequences of such termination in the contract, although failure to do so does not take away the aggrieved partys termination rights at law.
3.11 Do construction contracts in your jurisdiction commonly provide that the employer can terminate at any time and for any reason? If so, would an employer exercising that right need to pay the contractors profit on the part of the works that remains unperformed as at termination?
Construction contracts generally provide for the right of the employer to cancel the contract for cause. Cancellation by the employer may be done in the event of insolvency, neglect or failure to complete work timeously resulting in the works being materially affected, or suspension of work without cause on the part of the principal contractor. Cancellation for no cause is uncommon. As termination is done due to cause, no payment is due to the contractor in respect of the work that remains unperformed unless there is a specific provision in the contract for this.
3.12 Is the concept of force majeure or frustration known in your jurisdiction? What remedy does this give the affected party? Is it usual/possible to argue successfully that a contract which has become uneconomic is grounds for a claim for force majeure?
Yes, the use of force majeure clauses in commercial contracts, including construction contracts, is common practice in Zimbabwe. Force majeure circumstances provide full release from liabilities under the commercial contract after a specified period. Force majeure events may widely be defined as extraordinary, unpreventable and unforeseeable circumstances caused by a natural phenomenon (such as an earthquake, landslide, hurricane, drought and others) or social and economic circumstances (such as war, blockade, import and export bans in the State interest and others) which are not controllable by the will or action of either party and due to which the parties cannot perform their contractual obligations. The mere fact that a contract has become uneconomic is not sufficient grounds for a claim for force majeure. The parties are also free to agree on the events or circumstances constituting force majeure and how such events or circumstances shall be treated.
3.13 Are parties, who are not parties to the contract, entitled to claim the benefit of any contractual right which is made for their benefit? E.g. is the second or subsequent owner of a building able to claim against the contractor pursuant to the original construction contracts in relation to defects in the building?
Contracts made for the benefit of a third party are binding if accepted by a third party for whose benefit they were made. As a general rule, during transfer of title to the property (building), the new owner acquires rights and obligations related to such property. In the circumstances, subsequent owners of a building may be able to claim against the original contract in relation to defects in the building only if such defects were revealed during the defects liability period provided by the original contract.
3.14 On construction and engineering projects in your jurisdiction, how common is the use of direct agreements or collateral warranties (i.e. agreements between the contractor and parties other than the employer with an interest in the project, e.g. funders, other stakeholders, and forward purchasers)?
These are quite common in large construction projects which are funded by international lenders. This allows the third parties with interest in the project to step in, in the event of issues with the employer.
Set-off is recognised under common law in Zimbabwe. A debt qualifies for set-off if it is admitted or if it is capable of easy and speedy proof. In other words, only liquidated debts may be set off. Furthermore, set-off is only possible if the debts are both due and payable at law. The parties can regulate the question of whether set-off should apply in their contract.
3.16 Do parties to construction contracts owe a duty of care to each other either in contract or under any other legal doctrine? If the duty of care is extra-contractual, can such duty exist concurrently with any contractual obligations and liabilities?
Parties to a construction contract generally owe a duty of care to each other. Should either of the parties commit a delictual act, as opposed to a breach of the contract, such delictual act could give rise to a damages claim. A delict is a breach of a general duty imposed by law which will ground an action for damages in the suit of the person to whom the duty was owed and who has suffered harm in consequence of the breach. A typical delictual claim will arise where a party has suffered damages as a result of the negligence or other unlawful conduct of the other party. The parties are free to limit the circumstances in which such liability may arise.
The normal rule is that, when interpreting a contract, the language used in the contract must be given its ordinary, grammatical meaning. If this creates ambiguity, our courts have developed various rules setting out how contracts may be interpreted. The purpose of these rules is to establish the true intention of the parties. The courts are guided, in construing contractual provisions, by judicial precedent. Parties generally regulate what common rules should apply in the interpretation of the contract.
A construction contract, like any commercial contract, records the terms agreed to by the parties, who are at liberty to agree on any terms and conditions which are not prohibited by law and which do not offend public policy. Generally, construction contracts are unenforceable if they are against any applicable laws or are against public policy and morality (contra bonos mores). The parties must therefore exercise care in ensuring that the contract does not make provision for something that is expressly prohibited by law. In large construction contracts, care must be taken to ensure that the employer has secured the relevant exchange control approvals to enable payment to contractors outside Zimbabwe.
3.19 Where the construction contract involves an element of design and/or the contract is one for design only, are the designers obligations absolute or are there limits on the extent of his liability? In particular, does the designer have to give an absolute guarantee in respect of his work?
The designer bears the risk for his design, but the extent of his liability can be limited contractually. It must be borne in mind, however, that the liability of the designer to a third party cannot be excluded contractually and in the event of the designer being guilty of a delict, such as negligence, and such delict causing damage to a third party, the designer will be liable to that third party.
Disputes can be resolved either by approaching a court or through alternative dispute resolution, such as mediation, arbitration or referral to an expert. Construction agreements typically contain mediation and arbitration clauses in terms whereof parties will submit to arbitration in the event of a dispute. The parties are free to provide the details of the processes applicable to the resolution of any disputes, as long as such processes are not against the law of Zimbabwe. For instance, a clause allowing one party to resort to self-help in the event of a dispute will not be enforceable.
4.2 Do you have adjudication processes in your jurisdiction (whether statutory or otherwise) or any other forms of interim dispute resolution (e.g. a dispute review board)? If so, please describe the general procedures.
Yes, provided the contracts make provision for this. The NJPC Building Contracts make provision for adjudication. The administrator would refer the dispute to adjudication by an adjudicator appointed by the NJPC. The adjudication will be dealt with in terms of the rules of the NJPC. The adjudicator will invite submissions from both parties and has power to review and revise any action or inaction of the administrator relating to the dispute. The adjudicator also has the power to review and revise any decision, opinion, instruction, valuation, certificate or notice and to order such measurement and valuations as he may determine. No reference to adjudication is permitted later than 10 days after the issue of the final payment certificate, save in relation to matters concerning defects and the release of the retention.
Construction contracts in Zimbabwe commonly have arbitration clauses providing for referral of disputes to one or more arbitrators appointed either by agreement between the parties or, failing that, by some other body such as the Commercial Arbitration Centre of Zimbabwe or a relevant professional body such as the Engineering Council of Zimbabwe, the Valuers Council of Zimbabwe, etc. The parties are free to provide in the construction contract how the arbitration process is to be regulated in relation to the number of arbitrators to be involved, the seat of the arbitration, rules of procedure, the language to be used, and the period during which the arbitrator is required to render his decision, failing which the procedure to be followed in arbitration proceedings is as stipulated in the Arbitration Act [Chapter 7:15].
4.4 Where the contract provides for international arbitration, do your jurisdictions courts recognise and enforce international arbitration awards? Please advise of any obstacles (legal or practical) to enforcement.
Yes. Zimbabwe ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States which was incorporated into Zimbabwean law by the Arbitration (International Investment Disputes) Act [Chapter 7:03].
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards requires courts of contracting states to give effect to private agreements to arbitrate and to recognise and enforce arbitration awards made in the contracting countries. In terms of Article 3 of the Convention, each contracting state shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon.
Under the Convention, an arbitration award issued in any contracting state can generally be freely enforced in any other contracting state (save that some contracting states may elect to only enforce awards from other contracting states the reciprocity reservation).
Additionally, Zimbabwe adopted (with amendments) the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985, to give effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in New York on 10 June 1958. Awards from international arbitration proceedings are recognised and enforced in Zimbabwe subject to compliance with the procedures in the Model Law.
4.5 Where a contract provides for court proceedings in your jurisdiction, please outline the process adopted, any rights of appeal and a general assessment of how long proceedings are likely to take to reduce: (a) a decision by the court of first jurisdiction; and (b) a decision by the final court of appeal.
Where there are no factual disputes, a party can approach the court by way of a Court Application instituted by way of notice of motion accompanied by supporting affidavits. If, however, there is a factual dispute, the correct procedure to follow is to approach the court by way of action, which is instituted by summons. Ordinary actions or applications are usually resolved by the court of first instance within six to 14 months. Depending on the urgency of the matter, a party can bring an application to court on an urgent basis, in which case the rules of court relating to time periods are relaxed. This procedure is usually resorted to in cases in which one party desires, for instance, to obtain an interdict or an injunction against the other party.
Appeals against decisions of the High Court may be directed to the Supreme Court and it normally takes six to 12 months for an appeal to be heard and determined. Where the issue raises a constitutional question, it may be directed to the Constitutional Court.
All decisions and proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions may be taken on review in the High Court, in respect of grave procedural irregularities or illegalities occurring during the course of such proceedings.
4.6 Where the contract provides for court proceedings in a foreign country, will the judgment of that foreign court be upheld and enforced in your jurisdiction? If the answer depends on the foreign country in question, are there any foreign countries in respect of which enforcement is more straightforward (whether as a result of international treaties or otherwise)?
Section 3 of the Civil Matters (Mutual Assistance) Act [Chapter 8:02] allows judgments given in designated countries to be registered by the High Court of Zimbabwe and enforced as if they were judgments of the High Court of Zimbabwe. The designated countries will be deemed so in terms of a statutory instrument issued by the responsible Minister. The process is therefore straightforward in respect of these designated countries. Decisions from countries outside of the Designated Countries List can still be enforced. The decision of the foreign court would be taken as the cause of action on the basis of which fresh proceedings are commenced in Zimbabwe.
Thank you very much for sending us the International Comparative Legal Guide to International Arbitration 2016.We find the guide very informative and comprehensive.Sergey Kuznets, Deputy Head of the Legal Department - GazpromGet in Touch with Mechanic