NAME BONGANI KANDUNGURUZHI

SUBJECT FUNDEMENTAL PRINCIPLES OF ZIMBABWEAN LAW

REG NUMBER R211153U

LECTURER ARTHUR MARARA

The legal issue is whether or not the dispute in question is still arbitrable

Section 4(1) of the arbitration Act of Zimbabwe states that any dispute that the parties have
agreed to submit to arbitration may be determined by arbitration. Section 4 (2) of the same
Act further provided that “Subject to this section, any dispute which the parties have agreed
to submit to arbitration may be determined by arbitration.” Section 4 (2) of the aforesaid Act
provides that, the following matters shall not be capable of determination by arbitration:

 An agreement that is contrary to public policy

 A dispute which, in terms of any law, may not be determined by arbitration, or

 A criminal case; or
 A matrimonial cause or a matter relating to status, unless the High Court gives leave
for it to be determined by arbitration, or
 A matter affecting the interests of a minor or an individual under a legal disability,
unless the High Court gives leave for it to be determined by arbitration, or1

From the facts at hand and applying section 4 of the Arbitration Act, it is clear that the
dispute is an arbitrable one and recourse can be found within arbitration notwithstanding the
fact that the case once been thrown out of the High court. The dispute in question concerns
breach of contract by Mukumbiri who failed to pay what he owes to Twabam. The facts are
also clear that the parties through clause 10 of the arbitration agreement resolved that all
disputes should be resolved through arbitration

In Manduna v Alliance insurance 2 the judge held that where reference is made to the
arbitration through the arbitration clause, they ought to be observed and the dispute should
be resolved accordingly. This judgement shows the fact that the courts respects the freedom
of the parties to a contract by ensuring that parties desire to have disputes resolved through
desired settlement mechanism possible.

Furthermore, in Shell Zimbabwe Pvt Ltd v Zimsa Pvt Limited 20073 Makarau JP as she then
was held that the court is bound to give effect to arbitration clauses in agreements, it is not

1
Article 4 of the Arbitration Act of Zimbabwe Chapter 7;15
2
HH 147-16 HC 2016
3
2007 (2) ZLR 366
bound to do so in circumstances where arbitration is not the expressed or implied first choice
dispute resolution mechanism of the parties”.

Thus the courts have always respected the freedom of the parties to contract by ensuring
that their dispute settlement mechanism is respected

The UNICITRAL Model law on arbitration defines arbitration agreement defines arbitration
agreement an agreement by the parties to submit to arbitration all or certain disputes which
have arisen or which may arise between them in respect of a defined legal relationship,
whether contractual or not. An arbitration agreement may be in the form of an arbitration
clause in a contract or in the form of a separate agreement 4.In this case the parties had
agreed to submit all disputes that arise for arbitration through their clause10 which
constitutes the arbitration agreement

Article 7(2) further states the form in which an arbitration agreement should take it states
The arbitration agreement shall be in writing.

An agreement is in writing if it is contained in a document signed by the parties or in an

exchange of letters, telex, telegrams or other means of telecommunication which provide a
record of the agreement, or in an exchange of statements of claim and defence in which the
existence of an agreement is alleged by one party and not denied by another.

The reference in a contract to a document containing an arbitration clause constitutes an

arbitration agreement provided that the contract is in writing and the reference is such as to
make that clause part of the contract 5.From the above article it is clear that an arbitration
agreement must be in writing and in the case at hand this requirement is satisfied through
clause 10 of the agreement

Firstly, It is in no doubt that there was a valid contract between Twabam and Mukumbiri. The
former represents the offeror and the latter represents the offeree. An offer is defined as a
proposal put forward by one party with the intention that its mere acceptance, without more,
by another brings forth a contract. It is therefore a definite promise to be bound by the terms
being put forward6

4
Article 7 of The UNICITRAL Model law on Arbitration
5
Article 7(2) The UNICITRAL Model law on Arbitration
6
The law of Contract in Zimbabwe Innocent Maja page 36
Secondly it is in no doubt that there was breach of a contract. Breach of a contract arises
when one party to the contract fails to honour their obligations under a contract 7.The failure
to perfom contractual obligations will be arbitrable to a party to the contract.

From the facts at hand, Mukumbiri had borrowed $50000 from Twabam on 10 th August 2014
on the understanding that the the payment will be done by 31 January 2014.Mukumbiri failed
and this amounted to breach of a contract. We are further told that after the default Twabam
through his lawyers Magweta Pano wrote a letter of demand to Mukumbiri and he came
forward on the understanding that he will pay the debt beginning March 31 2015 on 10000
instalments until July 31 2015.Again he did not come forward thus breaching the contract
once more.

Since the dispute was initially destined for arbitration, the dispute is still capable of being
referred back to arbitration and in case that any party is unsatisfied by the arbitration award
then they can appeal to the courts of law.

Article 30 of the Unicitral model deals with the arbitral award. The arbitral award has the
force of any judgement of the court. Article 30(1) states that If, during arbitral proceedings,
the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if
requested by the parties and not objected to by the arbitral tribunal, record the settlement in
the form of an arbitral award on agreed terms8

Article 30 (2) states that an award on agreed terms shall be made in accordance with the
provisions of article 31 and shall state that it is an award. Such an award has the same
status and effect as any other award on the merits of the case. The effect of this provision is
that parties can decide to reach a settlement before the arbitration award is made. Once
they do, the settlement can be recorded and it will have the force of law just like any other
dispute

Chapter V11 of the Unicitral model law provides for recourse against the arbitration award.
Thus in the event that Twabam is unsatisfied with the decision of the arbitral tribunal then
only can he seek recourse from the High court of Zimbabwe. Usually parties state in their
arbitration agreement that all appeals shall be determined by the court. Thus the judge in
this case rightfully deliberated on the case when they threw out of the court.

7
The law of Contract in Zimbabwe Innocent Maja page 115
8
Article 30 of the UNICITRAL model law on arbitration
If he had decided on the case, then he would have interfered with the freedom of the parties
to contract they had opted for arbitration. Authority for that is article 34 (1) of the Unicitral
model law that provides that Recourse to a court against an arbitral award may be made
only by an application for setting aside in accordance with paragraphs (2) and (3) of this
article. The provision states that an arbitration may be set aside by the high court if a party
proves that

 There is incapacity of a party to arbitration or invalidity of the agreement under the

law of Zimbabwe
 If party was not given proper notice of arbitrator, its proceedings or was unable to
represent their case or
 Dispute was not the subject of an issue subject to arbitration or it deals with matters
beyond scope of arbitration
 If composition of arbitral tribunal/ procedure was not in accordance with what parties
agreed unless their agreement is in opposition of the model law or if
 The High court finds the matter not arbitrable subject to the law of Zimbabwe and if
award
 Is in conflict with public policy

Thus where parties agree that a dispute should be heard before arbitration, it should go for
arbitration and the court is always available to provide recourse whether on appeal or in form
of enforcement of an arbitration award

Conclusion
In a nutshell the legal issue is whether or not the dispute can still be subject to arbitration
after having had been referred back for arbitration by the High court. Section 4 of the
arbitration Act outlines matters that are not capable of arbitration. The said section does not
exclude contracts. Thus the contract between Mukumbiri and Twabam can rightfully be
heard before an arbitration tribunal

The specific issue is that there was breach of contract when he initially failed to pay money
due by 31 January 2015.He further breached the contract after having had promised to pay
the money due again on 31 July 2015.The fact that the issue was once brought before the
High court does not extinguish the jurisdiction of the arbitration tribunal conferred to it by the
arbitration agreement
The judge thus rightfully brought back the issue for arbitration. The rationale for the ruling is
premised on the respect of the freedom of the parties to contract. The principle for the
respect of the freedom of the parties to contract was upheld in the case of Manduna v
Alliance insurance9 and Shell Zimbabwe Pvt Ltd v Zimsa Pvt Limited 10. Thus Twabam
should pursue the dispute under arbitration and recover his money.

BIBLIOGRAPHY

9
HH 147-16 HC 2016
10
2007 (2) ZLR 366
BOOK
The law of Contract in Zimbabwe, Innocent Maja 2015

STATUTES
Arbitration Act of Zimbabwe, Chapter of the Laws of Zimbabwe

CASES
Manduna v Alliance insurance HH 147-16 HC 2016

Shell Zimbabwe Pvt Ltd v Zimsa Pvt Limited 2007 (2) ZLR 366