GRAIN MARKETING BOARD v BINGA GURU (PVT) LTD 1985 (2) ZLR 147 (H)

Flynote

Arbitration Act [Chapter 12] — s 6 — stay of proceedings in the face of a submission to arbitration — incidence and effect of onus — s 8 of Act — application where contract requires appointment of foreign arbitrator.

Headnote

Where an enactment requires a court to be satisfied that there is no good reason why a matter should not be referred to arbitration it is necessary for the person who opposes the referral to satisfy the court as required. The party seeking a stay of proceedings has the burden of showing that it has at all relevant times been ready and willing to assist in the conduct of the arbitration. Thereafter when consideration is given as to whether the stay should be allowed or not the onus shifts to the person who opposes the stay. However, if the court is satisfied that the matter should or should not be referred to arbitration it is unlikely that the burden of proof would have any effect on the court in arriving at that decision.

Where an agreement provides that an arbitrator "of a third country mutually agreed upon" may be appointed, that does not prevent s 8 of the Arbitration Act [Chapter 12] from being applicable, failing such agreement, in allowing recourse to the courts to seek the appointment of a local arbitrator. It would be anomalous if it were to be held that the Act only applies in respect of the appointment of an arbitrator in Zimbabwe.