"As a result of the above, we advise you that your conduct is unacceptable, improper and directly undermines the basic tenets of corporate governance principles which we so cherish and adhere to. It contravenes the Zimbabwean laws and we reserve the right to report you for prosecution. Your conduct goes to the core of our relationship and as such we are no longer prepared to engage yourselves for negotiations to the next stage of a Joint Venture Agreement. In fact out relationship terminated for both platinum and nickel properties. "
"In the event of a dispute or disputes arising, such disputes, controversies or differences between the Parties, which may arise out of or in relation to the MOU, and which cannot be settled by the Board, the parties shall first try to resolve it amicably through negotiation. In the event that no settlement can be reached through negotiation in reasonable time, any Party may submit the dispute to the ICC International Court of Arbitration in Paris for arbitration in accordance with the procedural rules of arbitration of the said Arbitration Court in effect at the time of applying arbitration, the award of which shall be final and binding upon the Parties.The language in Arbitration shall be in English."
(1) pursuant to Article 8(2) of the Rules of Arbitration in force as from 1 January 1998 ("the Rules"), that the matter would be submitted to three arbitrators;
(2) pursuant to Article 14(1) of the Rules to fix Lusaka, Zambia, as the place of the arbitration.
(1) The principal amount of Amaplat’s main claim was reduced from US$127,000,000 to US$37,659,000;
(2) The principal amount of Amari’s main claim was reduced from US$9,400,000 to US$3,900,000;
(3) In the event that it is found that the Platinum MOU is invalid for any reason or that ZMDC was entitled to terminate it, Amaplat seeks payment of the principal sum of US$4,498,190 and interest by way of restitutionary relief (being the amount invested by Amaplat in the platinum assets owned by Zimari Platinum);
(4) In the event that it is found that the Nickel MOU is invalid for any reason or that ZMDC was entitled to terminate it, Amari seeks payment of the principal sum of US$578,559 and interest by way of restitutionary relief (being the amount invested by Amari in the platinum assets owned by Zimari Nickel).
(1) Richard Charles Macdonald Napier, who until March 2011 was the managing director of Amari Resources Holdings Ltd ("Amari Resources Holdings"), a holding company of Amaplat and Amari, and a director of Zimari Nickel and Zimari Platinum. Amari Resource Holdings’ principal shareholder is Amari BVI.
(2) Thabani Ndlovu, who between August 2005 and June 2008 was the Permanent Secretary at the Ministry of Mines.
(3) Janet Sakuerwa Mutasa, a chartered accountant and a director of JSM Consulting Private Ltd ("JSM"), a company that offers professional services for the maintenance of companies’ statutory records.
(4) Beauty Hwindizi, a consultant employed by JSM since 5 May 2008.
(5) Mr Summers, Amari Resource Holdings’ group financial director.
(6) Tichaona John Muhonde, a qualified lawyer practising in Zimbabwe who was employed at ZMDC in January 2007 as an assistant company secretary and legal advisor and who, in about June 2008, was made ZMDC’s company secretary and legal advisor.
(7) Mr Mubayiwa. Prior to being sent on forced leave in July 2010, Mr Mubayiwa had held the post of ZMDC’s Chief Executive Officer since May 2003. Before that, he had been ZMDC’s internal auditor between 1985 and 1987, the mine secretary between 1987 and 1989 and had then held positions as the corporate accountant, group chief accountant and finance director/financial controller until his appointment as the Chief Executive Officer.
(8) Mr Nunn, the executive chairman and a director of Amari BVI, the ultimate holding company of the Amari Group.
(9) Mr Rhys Ralph, Mr Nunn’s personal assistant from March to October 2008 in Amari Services (Pty) Ltd ("Amari Services"), a company owned by Mr Nunn and Mr Summers through family trusts which became part of the Amari Group in 2009.
(1) Mr Theart, an economic geologist employed by SRK Consulting (South Africa) (Pty) Ltd ("SRK") who co-authored a report commissioned by Zimari Platinum dated 6 October 2010. Mr Theart’s statement exhibited that report.
(2) Mr Clarkson Mafirakureva Kamurai, a consultant financial mining engineer and the Amari Group’s country manager in Zimbabwe between June 2008 and about June 2010. Mr Kamurai gave both factual and expert evidence. He made an undated factual statement and an undated expert’s report which was only signed on 15 August 2012 during the course of his oral evidence
(3) Mr Neale Goddard, a mechanical engineer employed by DRA Mineral Projects (Pty) Ltd ("DRA") who, together with Ms Michelle Schroder, a process engineer employed by DRA, prepared the DRA scoping study report on the Serui platinum mine dated October 2010.
(4) Ms Schroder, who prepared the DRA Serui Pre-feasibility Study [6/p.l92].
(5) Mr Le Roux, an exploration geologist who until the end of 2010 was employed in the Amari Group and who was involved in the exploration and prefeasibility studies in relation to the nickel and platinum joint ventures pursued by the Amari Group with ZMDC. Mr Le Roux gave both factual and expert evidence.
(6) Mr Wixley, a chartered accountant with extensive experience of the provision of auditing and consulting services. Mr Wixley made statements signed on 15 August 2012.
(1) pursuant to Article 12(1) of the Rules to accept the resignation of Mr Mutizwa;
(2) pursuant to Article 11(3) of the Rules, to reject the challenges to Judge Joffe and Mr Isaacs QC;
(3) to invite the Respondents to nominate a co-arbitrator in replacement of Mr Mutizwa within 15 days from 28 September 2012.
(1) the arbitration proceedings would continue;
(2) its provisional view was that the proceedings should be conducted on the basis of the existing record of the proceedings at the August 2012 hearing and without the need for the oral evidence given at that hearing to be reheard but that it wished to have the benefit of further oral submissions from the parties’ counsel, in particular so that those members of the Tribunal who were not present at the previous hearing would have the opportunity to clarify directly with the parties any matters relating to the evidence given and legal submissions made and to afford the Respondents the opportunity to make submissions on the substance of the case;
(3) it required the Claimants to prepare a full hearing bundle for the hearing;
(4) it proposed to hold a hearing in London on 4 and 5 November 2013 and requested the parties to confirm their availability for that hearing and, if not convenient to them, to propose alternative dates/venue for the hearing.
The Tribunal requested the parties to provide their comments on its proposals by 2 September 2013.
(1) The Nickel MOU lapsed on 31 December 2007 pursuant to Article 9 thereof and became of no force or effect; and the arbitration provisions in Article 11 thereof are an integral part of the Nickel MOU which also lapsed and consequently became of no force or effect.3
(2) The MOUs are invalid and tainted with illegality under the laws of Zimbabwe for non-compliance with the mandatory provisions of the Act which required that any agreement entered into by ZMDC must be approved by the Minister of Mines and Mining Development ("the Minister"). To give effect to the arbitration clause of an agreement tainted with illegality is to grant specific performance of the illegal agreement and it is contrary to the public policy of the Republic of Zimbabwe effectively to grant such specific performance.4
(3) Clause 5 of the Deed of Novation confers exclusive jurisdiction on the courts of England and Wales in respect of disputes or claims arising out of or in connection with the subject matter of the Deed of Novation.5
(1) the Claimants are not shareholders in Zimari Nickel and Zimari Platinum;
(2) the absence of ZMDC board approval for the conclusion of the MOUs;
(3) the absence of ministerial approval for the conclusion of the MOUs;
(4) the failure to comply with the condition precedent in Article 9 of the Nickel MOU;
(6) the absence of any joint venture agreement;
(7) the MOUs were validly cancelled.
"THAT the MOU be and is hereby approved subject to management renegotiating the shareholding structure giving ZMDC a minimum of 40% and a maximum of 50%"
It is common ground that ZMDC did acquire a 45% shareholding.
"1.... authority for ZMDC to enter into a Platinum Joint Venture Agreement with Amaplat be and is hereby granted.
2. The Chief Executive Officer, Mr. Dominic L. Mubayiwa be and is hereby authorized to negotiate, conclude and sign the said Joint Venture Agreement. "
"15.... the board resolved to conclude the Nickel MOU... and authorised me to execute the Nickel MOU on its ZMDC’s] behalf.
16. I signed the Nickel MOU on 22 November 2007 and Nunn signed the MOU on behalf of Amari Holdings Limited on the same date.
17. The approval required by the board of the ZMDC as contemplated in article 9.1.1 of the Nickel MOU was obtained prior to 31 December 2007.
18. The ZMDC board approved the Platinum MOU in the same manner as it approved the Nickel MOU. The following occurred:
18.5 After having received the Minister’s approval as required by law, the ZMDC board resolved to conclude the Platinum MOU and authorised me to do so on behalf of the ZMDC.
19. On 25 July 2008 I signed the Platinum MOU on behalf of the ZMDC and Nunn signed this agreement on behalf of Amaplat...."
"22.... The ZMDC board expressed their reservations regarding Morgan Hill obtaining a stake in the venture, which did not appear appropriate to the ZMDC board. The ZMDC board approved the conclusion of the MOU subject to management renegotiating the shareholding structure in terms of which the ZMDC obtained a minimum of 40% shareholding and a maximum 45% shareholding in the joint venture entity.
23. Subsequent to this meeting, Mubayiwa told me that the ZMDC’s shareholding had to be 45%.
24. I made the changes to the draft MOU presented to the board. I removed the references to Morgan Hill and changed the shareholding that ZMDC was to receive to 45%, with Amari to receive the remaining 55%.
25. I wrote a letter to Cockhead [Amari’s in-house legal representative] in which I informed her of the outcome of the ZMDC board meeting on 1 November 2007."
"20. With the approval of the Minister, to promote, establish or acquire companies or other undertakings and, in connexion with any such company or other undertaking-
(a) to manage it and act as secretary thereof;
(b) to appoint any person to act on behalf of the Corporation as a director thereof or in any other capacity in relation thereto.
21. With the approval of the Minister, to acquire an interest in, to provide any underwriting or otherwise to assist in the subscription of capital or to guarantee the obligations of a company, whether promoted by the Corporation or otherwise, engaged in or proposing to establish, expand or modernise any undertaking relating to the production, refining, smelting or processing of minerals."
"14. In accordance with the standard procedures followed at the ZMDC relating to the conclusion of joint venture agreements which I outlined previously, the board authorised Caroline Sandura ('Sandura'), the Chairperson of the ZMDC, to seek permission of the Minister of Mines and Mining Development, Amos Midzi at that time, for the ZMDC to conclude the Nickel MOU and hence for the ZMDC to acquire shares in the intended joint venture company.
15. The Minister granted the ZMDC the required approval. I was informed of this decision in a letter from the Minister. This letter was sent to me by Thabani Ndlovu ('Ndlovu'), the then Permanent Secretary in the Ministry of Mines and Mining Development on behalf of the Minister....
18. The ZMDC board approved the Platinum MOU in the same manner as it approved the Nickel MOU. The following occurred:
18.3 The ZMDC board authorised Sandura to seek the approval of the Minister to conclude the Platinum MOU and hence to acquire shares in the intended Joint venture vehicle.
18.4 The Minister granted the ZMDC the required approval. I was informed of this decision in a letter from the Minister. This letter was sent to me by Ndlovu, the then Permanent Secretary in the Ministry of Mines and Mining Development...."
"The Minister told me to write a letter to the ZMDC and I wrote a letter to the effect that the Minister had approved the MOU for the joint venture between ZMDC and Amari, and I did that and sent the letter to ZMDC and then gave a copy to the Minister and kept another copy in my office... in the file that was marked ZMDC Correspondence.... What I wrote in the letter was to the effect that in terms of the ZMDC Charter [the Act], the Minister had approved of the joint venture between ZMDC and Amari. And therefore they could proceed and put all the processes in place."19
He further stated that the same was done in relation to the Platinum MOU.20 In cross-examination, he also referred to an affidavit by Mr Mutzi made in the Zimbabwe High Court Proceedings, of which a copy was in the hearing bundles in the present proceedings, in which Mr Mutzi himself expressly confirmed that he approved the MOUs.
"8. DA TE OF COMMENCEMENT AND DURATION
This MOU shall commence on the Effective Date and supercedes [sic] any other prior documents relating to the matters specified herein and shall, subject to the provisions of this MOU:
8.1 be binding on the Parties upon signature hereof by each of the Parties; and
8.2 be superseded by comprehensive subscription and shareholder/joint venture agreements which shall incorporate the terms and conditions contained herein.
9. CONDITION PRECEDENT
9.1 This MOU excluding 9 and 11, is subject to fulfilment or waiver of the following condition precedent;
9.1.1 the Parties obtaining necessary board and/or shareholder approval to this MOU.
9.2 The parties shall use their best endeavours to fulfil or waive the above conditions precedent on or before 31 December 2007 in full, or such later date as the Parties may agree in writing, failing which the MOU will lapse and be of no force and effect and no Party shall have a claim against the other as a result of the failure of such condition precedent."
"37.1 With a board approved loan from the ZMDC, I was building a new house in Zimbabwe. The loan was approved because it was thought that it would be more appropriate for the CEO of the ZMDC to live in a better area than the area in which I was previously living.
37.2 I needed to purchase tiles for my new house and could not find tiles that I liked in Zimbabwe. As I was travelling frequently to South Africa, I thought I would look for tiles in South Africa.
37.3 Whilst I was on a business trip to Johannesburg in May 2008, I told Nunn that I wanted to look for tiles for my house. Nunn said I could phone Rhys Ralph, his personal assistant, to drive me around to look for the tiles.
37.4 I contacted Ralph and made arrangements to meet him.
37.5 I met up with Ralph and we went to Union Tiles and to CTM. I could not find tiles that I liked at either of these places. Ralph then telephoned his mother to ask for suggestions of other places to source tiles. She suggested Italtile, where I found Fabian Bianco tiles that I liked.
37.6 I was unable to purchase the tiles there and then. I only had with me US$9000 and a relatively small amount of South African Rands. I was under time pressure to get to the airport and did not have lime to exchange these dollars for rands. Furthermore, Italtile could not tell me whether they had stock of the 200 square meters I required. They said that they would have to try and source these tiles from their other stores. The price that I would have to pay would obviously depend on the quantity of tiles [that] were available. Italtile said that they would contact Ralph and tell him whether they could successfully source the tiles.
37.7 Before I left Johannesburg, I explained to Nunn what had happened at Italtile. I gave him the US$9000 to cover the cost of the tiles and the R25 000.00 that he had advanced to me.
37.8 Ralph later informed me that Italtile had sourced the quantity of tiles that I wanted.
37.9 Nunn said to me not to worry about the transport of the tiles because he was sending a container to Zimbabwe in any event.
37. 10 The price of the tiles was R41 819.05 from Italtile."
"38.1 After I had found the tiles and subsequent to meeting with Nunn, I was being taken to the airport by Ralph. I wanted to purchase a present for my daughter and Ralph took me to a doll shop where I bought a doll for my daughter. The doll was called Dindy and it came with a birth certificate. I paid for the doll with Rands that I had on me."
"If one looked at the drilling spacing and information, this resource would have been able to be classified at a much higher level of confidence, most probably at least at an indicated level but we only to classify it as inferred because the information available is old information and we didn't do all the necessary work to date to verify the old information although all the information that - all the additional that we did proved that the information is correct, we needed to do additional work to prove that. So I will be happy that this resource is an inferred resource."
"Decision as to the Costs of the Arbitration
1. The costs of the arbitration shall include the fees and expenses of the arbitrators and the ICC administrative expenses fixed by the Court, in accordance with the scale in force at the time of the commencement of the arbitration, as well as the fees and expenses of any experts appointed by the arbitral tribunal and the reasonable legal and other costs incurred by the parties for the arbitration.
3. The final Award shall fix the costs of the arbitration and decide which of the parties shall bear them or in what proportion they shall be borne by the parties."
(1) declares that it has jurisdiction over the parties’ dispute;
(2) orders ZMDC to pay Amaplat damages in the sum of US$42,882,000;
(3) orders ZMDC to pay Amari damages in the sum of US$3,900,000;
(4) orders the Respondents to pay the Claimants’ legal and other costs and expenses in the sum of US$2,220,583.74;
(5) orders the Respondents to pay the Claimants the costs of the arbitration referred to in paragraph 225 above in the sum of US$900,000;
(6) orders ZMDC to pay interest on the damages referred to in (2) and (3) and on the Claimants’ legal and other costs and expenses referred to in (4) above and the costs of the arbitration referred to in (5) above at the rate of 5% per annum from the date hereof until payment;
(7) dismisses all other claims and counterclaims.