CITATION
HH403/16
NAME OF THE COURT
High Court of Zimbabwe
CITY AND COUNTRY
Harare, Zimbabwe
KEY WORDS
Arbitrator, jurisdiction, stay of proceedings
CASE SUMMARY
The applicant and the first respondent before the High Court executed a service agreement pursuant to which the applicant engaged the first respondent to collect debts owed to the applicant by residents falling within its jurisdiction. The agreement provided for dispute resolution through conciliation as between the parties. If conciliation failed, the agreement provided that the dispute would be referred to arbitration .A dispute arose between the parties following the applicant’s cancellation of the agreement. The first respondent suggested that the dispute be referred to arbitration with the second respondent as arbitrator. There was no response by the applicant to the proposal. The first respondent then wrote to the Commercial Arbitration Centre, Harare advising on the dispute and its proposal to the applicant to consider the choice of the second respondent as arbitrator. The Commercial Arbitration Centre, Harare went on to appoint the second respondent as arbitrator. There was no communication from the applicant either agreeing to or objecting to the appointment of the second respondent as arbitrator. The second respondent went on to convene a preliminary meeting which was attended by the first respondent. The applicant did not attend the preliminary meeting. When both parties appeared before the arbitrator on 30 May 2016,the applicant raised the preliminary issue of the arbitrator’s jurisdiction. The arbitrator did not give a pronouncement or ruling on his challenged jurisdiction before hearing the merits of the matter. The applicant then filed an urgent application seeking a provisional order that the arbitration proceedings be stayed pending the determination of the question of the arbitrator’s jurisdiction and a final order for the setting aside of the arbitration proceedings in so far as they were conducted without a determination on the point of jurisdiction.
Key holdings:
- An application that seeks to interdict a judicial or quasi-judicial officer, as in the case of an arbitrator, from continuing the hearing of a matter already commenced before him is non-suited for the court’s determination.
- Pursuant to Section 171 of the Constitution as read with Section 26 of the High Court Act, the High Court has inherent jurisdiction to supervise and /or review proceedings of any inferior court or tribunal or administrative authority within Zimbabwe. The High Court’s inherent jurisdiction to interfere with or stay proceedings will only be sparingly invoked and in exceptional circumstances.
- Article 16 of the Model Law gives the second respondent the power to rule on his jurisdiction. Where the point is taken as a preliminary question, the arbitrator should make a ruling. In this case, the applicant has proved that the proceedings before the second respondent have been conducted without due observance of the due process of the law and there is a prima facie well-grounded fear that justice will be a casualty if the proceedings are not interfered with. Accordingly, the interim relief was granted.Back to
