NAME OF CASE
Makonye v Ramodimoosi and 2 others
NAME OF THE COURT
High Court of Zimbabwe
CITY AND COUNTRY
Arbitration, natural justice, public policy , breach
SUMMARY OF CASE
The background giving rise to the dispute between applicant and the 1st respondent involved the termination of a lease agreement entered into by the parties on 6 September 2011. The parties had agreed that the 1st respondent would occupy the leased premises on 1 November 2011. The premises were under renovation, and applicant gave an assurance that the renovations would be complete by the date of occupation. 1st respondent paid a sum of US$16 800-00, being a deposit and six months’ rent in advance, to the applicant. Both parties submitted voluminous written statements to the arbitrator with applicant, as the respondent, on 31 December 2011. Second respondent, the letting agent, also submitted a written statement to the arbitrator, on 9 February 2012. The arbitrator found that the rental amount had been assessed based on the size of the kitchen, which the applicant had promised to extend and make bigger according to 1st respondent’s specifications. This is the reason why 1st respondent had agreed to pay six months’ rent in advance. Applicant was unable to complete the renovations by the agreed date of occupation. The parties entered into further negotiations which broke down after applicant demanded more money which first respondent refused to advance. On 1 November 2011, the date of occupation, the premises were still under renovation. First respondent terminated the lease agreement and claimed a refund of the US$16 800-00 that had been advanced. The arbitrator found that the applicant’s inability to renovate the kitchen by the agreed date went to the root of the lease agreement, and confirmed that the lease agreement had been correctly terminated, and ordered that the applicant refund the monies advanced to him by first respondent. The applicant applied for the award to be set aside on the ground that he had not been given a chance to present his case, and the award was against public policy.
The issues for determination were whether the applicant’s right to be heard had been violated and whether the award was against public policy.
- Based on the provisions of Article 19 of the Model Law, it was entirely proper and permissible for the applicant and the first respondent to agree on the procedure to be followed. The arbitrator was at liberty, to conduct the arbitration in such manner as it considered appropriate if the parties failed to agree on which procedure could be used (Article 19 (2). The power conferred on the tribunal included the power to: “determine the admissibility, relevance, materiality and weight of any evidence.” There is nothing in the papers filed of record which suggests that the arbitrator did not have these powers. The evidence placed before this court, via copies of electronic mail communication between the parties, clearly shows that applicant consented to the matter being determined on the basis of written submissions placed before the arbitrator. Applicant is on record as celebrating the advantages of this course of action as being cheaper and less time consuming. To turn around now and ask this court to find that the arbitral award was made without affording applicant an opportunity to be heard is downright dishonest, and dishonorable.
- Article 24 of the Model Law gives the arbitrator the power to override any agreement between the parties themselves in regards to how the matter should proceed, and stipulates that the arbitral tribunal shall decide whether to hold an oral hearing or whether the proceedings shall be conducted on the basis of documents or other materials. In essence the conduct of the hearing is entirely at the tribunal’s discretion. There is no onus on the tribunal to hear oral submissions. The onus on the tribunal relates to notification of the hearing, and an arbitrator has exclusive jurisdiction, contrary to the parties’ wishes to decide how to collate evidence. There is no provision to compel the arbitrator to hear oral evidence. What is required is for all the parties to be notified of the hearing, to be given an opportunity to present their case as stipulated by the arbitrator, and to have sight of the submissions made by the other parties, if in writing.