MTEMWA HOLDINGS (PVT) LTD & ANOR v MUTUNJA & ANOR 2016 (2) ZLR 262 (H)

Flynote

Arbitration: " award " setting aside of " grounds " award contrary to law C of Zimbabwe " arbitrator in mining matter ordering transfer of mining claims " such order may only be given by High Court or mining commissioner " order set aside " allegation that arbitrator had violated principles of natural justice " arbitrator's conduct entirely proper " no ground for setting aside whole award

Headnote

A dispute as to the transfer of mining claims had been referred by agreement between the parties for arbitration by an arbitrator agreed by the parties. The arbitrator needed to decide whether an agreement had existed between the parties, whether it had been cancelled and whether aspects of the applicants conduct was tainted by fraud. He confirmed the cancellation of the contract which the parties had concluded and directed the reversal of all the mining claims which the respondent had transferred to the applicants and awarded costs against the applicants. The applicants applied for the arbitral award to be set aside, alleging it was in conflict with the public policy of Zimbabwe. It was further alleged that the arbitrator had violated the principles of natural justice and failed to disclose aspects which were likely to give rise to justifiable doubt as to his impartiality before the arbitration commenced.

Held, that the arbitrator was correct in his findings that the agreement between the parties had been properly cancelled by the first respondent because the applicants had failed after due notice to make a required payment.

Held, further, that it was not permissible for the first respondent to raise before the court aspects which had been abandoned before the arbitrator.

Held, further, that the arbitrator was incorrect in ordering the reversal of the mining claims, as this could only be done by the High Court or the Mining Commissioner.

Held, further, that as the fraud allegation by the first respondent was not established, each party should pay its own costs and split the arbitrator's fee equally.

Held, further, that the arbitrator had been selected by both parties, had acted entirely properly and there was no evidence at all to suggest that he had violated the principles of natural justice or that he had failed to disclose any circumstances which were likely to give justifiable doubts as to his impartiality.