Edmore Taperesu v International Export Trading Company and Catherine Chitiyo

### Preamble
1
HH 509-18
HC 1064/17
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EDMORE TAPERESU

versus

INTERNATIONAL EXPORT TRADING COMPANY

and

CATHERINE CHITIYO

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 10 July, 2018 & 4 September 2018

Opposed application

H Tsuro, for the applicant

G. Nyengedza, for the 1st respondent

No appearance for the 2nd respondent

MANGOTA J: What started as an ordinary maize growing contract which the applicant and the first respondent signed developed into a bruising legal battle between them. They signed it on 30 September, 2013. They earmarked it for the 2013/2014 farming season.

In terms of the contract, the first respondent advanced inputs and cash to the applicant. It advanced the equivalent of $147 627.44 in cash and kind.

The advanced inputs and money aimed at enabling the applicant to grow and deliver to the first respondent 650 metric tonnes of maize. This was to be delivered on or before 31 July, 2014. The date of delivery of the maize was verbally extended to 30 August, 2014 by the parties.

At the end of the 2013/2014 farming season, the applicant delivered 108.834 metric tonnes of maize to the first respondent. The first respondent claimed the sum of $211054.74 which it said was the value of the undelivered 541.166 metric tonnes of maize.

The applicant denied liability.  He insisted that the first respondent breached the contract in that it took out a wrong insurance policy on his behalf. The policy, he said, did not have appropriate cover which was applicable to him. He averred that the first respondent further breached the contract, in that it did not take out credit risk insurance. He said he owed nothing to it.

The first respondent’s claim created a dispute between the parties. The dispute centered on whether or not the applicant was liable to the first respondent in the sum claimed or in any sum at all.

The parties referred their dispute to arbitration. They invoked clause 12 of their agreement in the mention regard. The reference of the dispute to arbitration roped the second respondent into the equation. She was, with the consent of them, appointed the arbitral tribunal.

The second respondent heard the parties’ dispute during the period which extended from 24 May, 2016 to 26 October, 2016. She made a determination in favour of the first respondent. It is that determination which constitutes the applicant’s cause of action in casu. He is moving the court to have the same set aside on the grounds which he set out in the application.

Before I deal with the substance of the application, however, it is pertinent for me to highlight the intensity of the parties’ litigation as follows:

in HC 9657/16 the applicant applied for the recusal of the second respondent;

in HC 900/17 the first respondent successfully applied for the registration of the arbitral award;

in HC 2543/17 the applicant applied, through the urgent chamber book, for stay of execution of HC 900/17;

in HC 2857/17 the applicant applied for rescission of HC 900/17 - and

in HC 1638/18 the first respondent successfully applied for dismissal of HC 2857/17 for want of prosecution.

HC 1064/17 is the current application which the applicant filed on 6 February, 2017. He filed it in terms of Article 34 of The Arbitration Act [Chapter 7:15]. He, as has already been stated, is moving the court to set aside the arbitral ward which the second respondent entered in favour of the first respondent on 26 October, 2016. He advanced four grounds which he says support his motion. These, he insists, are that:

the second respondent was incapable of impartially and independently presiding over the matter;

the parties’ dispute could not be settled through arbitration;

the arbitral award was/is in conflict with the public policy of Zimbabwe-and

the second respondent failed to treat the parties who were before her equally.

The first respondent opposed the application. The second did not. My assumption is that she intends to abide by the decision of the court.

The first respondent dealt with each of the applicant’s above-mentioned four points in detail. It admits, in regard to the first matter, that the second respondent is a partner in the law firm in which her colleague, one Innocent Chagonda who sits on the board of Zimnat, its insurers, is also a partner. It insists, however, that the stated matter did not affect the second respondent’s capacity to discharge the functions of her office as the parties’ arbitrator in a fair and impartial manner. It urges the court, on the applicant’s second matter, to focus its attention on the substance of the parties’ contract as opposed to deciding the same on technicalities which it said the applicant is persuading the court to go by. It states that the applicant drew down on the inputs and funding which it advanced to him. It submits that, in advancing the inputs and cash to him, it performed its own side of the contract. It argues that its performance of the contract led to an equal obligation on him to perform his own side of the same. He, it insists, failed to live up to his commitment as per the provisions of the contract. It denied, in so far as the third and fourth matters which the applicant raised are concerned, that the arbitral award is in conflict with the public policy of Zimbabwe and/ or that the second respondent did not treat the parties equally.

Arbitration is supposed to provide the parties with a quick and most inexpensive way of resolving their disputes. It is for the mentioned reason, if for no other, that the parties who submit to arbitration are, more often than not, encouraged to:

agree on the person/official who will arbitrate the dispute;

agree on the form, substance and procedure which the arbitration will take;

agree not to be strictly bound by such matters as relate to admission of evidence, rules of procedure which the ordinary courts remain bound by-as well as

agree on the length of time that the dispute which they refer to arbitration should take.

Many agreements which parties conclude do contain a clause which stipulates that, in the event of a dispute arising between them, they refer such to arbitration. A number of them contain a further clause which states that the decision of the arbitrator remains final and binding as between them. The clause aims at finality of the parties’ dispute.

The finality clause’s presence in the contract notwithstanding, however, many respondents against whom the arbitrator makes a decisions take refuge in Article 34 of the Arbitration Act. They invariably apply, under the mentioned Article, to have the arbitral award set aside. They advance a number of reasons in support of their application.

Article 34 of the Arbitration Act [Chapter 7:15] [“the Act”] spells out the circumstances under which an arbitral award may be set aside. It reads, in the parts which are relevant to this application, as follows:

“ (1) 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.

(2) An arbitral award may be set aside by the High Court only if-

(a) the party making the application furnishes proof that-

(i) ……….  the said agreement is not valid under the law to which the parties have subjected it or …. under the law of Zimbabwe; or

(ii) the party making the application…. was  otherwise unable to present his case; or

(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submissions to arbitration, or….

(iv) ……….

(b) the High court finds that-

(i) the subject matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe, or

(ii) the award is in conflict with the public policy of Zimbabwe.

(3) ……………………….

(4) ……………………….

(5) For the avoidance of doubt, and without limiting the generality of paragraphs 2 (b) (ii) of this article, it id declared that an award is contrary to the public policy of Zimbabwe if-

(a) the making of the award was induced by fraud or corruption;

or

(b) a breach of the rules of natural justice occurred in connection with the making of the award” [emphasis added]

The above-cited sections and paragraphs of the Article constitutes the context in terms of which an application of the present nature must be determined. The determination does, in a large measure, depend on the proof which the applicant is able to establish as read with the court’s finding on the same. It follows that where the applicant fails to prove his allegations the court will be stretching its mind too far if it makes a finding which is based on nothing.

It is mentioned in passing that in considering an application such as the present one the court will not be reviewing the work of the second respondent. Nor will it be sitting as a court of appeal which tests the correctness or otherwise of her decision. Its main focus will be to evaluate and determine if the second respondent, in arbitrating on the parties’ dispute, made substantial compliance with the provisions of the Act.

My views in the abovementioned regard find fortification from what the Supreme Court stated in ZESA v Maposa, 1999 (2) ZLR 452 (D) wherein Gubbay CJ remarked as follows:

“An award will not be contrary to public policy merely because the reasoning or the conclusions of the arbitrator are wrong in fact or law. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequality that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to the public policy to uphold it. The same consequences apply where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned.” [emphasis added]

Many applications which parties make under Article 34 of the Act are anchored on para (2) (b) (ii) of the mentioned Article. The applicants, more often than not, state that the arbitral award was/is in conflict with the public policy of Zimbabwe. It is for the mentioned reason, if for no other, that the Legislature saw it appropriate to define, in para (5) of the article, the phrase in conflict with the public policy of Zimbabwe to refer to an award which emanated from the arbitrator’s fraudulent or corrupt conduct or one which arises out of his breach of the rules of natural justice like where the arbitrator vacated his office and refused to accord a fair treatment to parties who are before him and/or where he denies one of the parties a chance to be heard. The phrase which appears in para (5) of Article 34 is specific. It states, in clear and categorical terms, that the definitions which appear in subpara (s) (a) and (b) of para (5) of Article 34 of the Act are not the alpha and omega of the phrase in conflict with the public policy of Zimbabwe. It leaves the door which relates to the same open so that it would cover all unmentioned malpractices into which the arbitrator should not indulge.

The applicant’s temporary exclusion from the hearing of the first respondent’s first witness’s evidence-in-chief would appear to be conduct which is in conflict with the public policy of Zimbabwe. However, the same should be viewed in its context. The exclusion, it was submitted, was not as a result of the second respondent’s intention to ensure that the ends of justice should be compromised in favour of the first respondent.

The record of the arbitration proceedings deals with the above-mentioned matter at p 38. It reads:

“At commencement of hearing Arbitrator ruled that resp (i.e. applicant in casu) exit proceedings-he being a witness yet to testify. He did so under protest, but res attorney Hungwe was present. CL’s first witness (Muhlwa) gave evidence in chief in respondent’s absence.”

It should be stated, for purposes of clarification, that the applicant was the respondent in the arbitration proceedings. He was represented by Mr Hungwe. The first respondent was the claimant and Mr Nyengedza was its legal practitioner.

The abovementioned ruling was preceded by the directive which the second respondent made before she heard the parties. The directive was to the effect that a witness may not sit in the arbitration proceedings during the hearing and before he had testified. It appears at p 36 of the record and under the heading which reads opening remarks. She made the ruling on 24 May, 2016.

The submission which the parties made on 1 June, 2016 aimed at correcting the applicant’s temporary exclusion from the hearing. These appear at pp 43 – 44 of the record. They commence with the applicant’s legal practitioner, Mr Hungwe to whose submissions the respondent’s legal practitioner Mr Nyengedza stated to the contrary. The discourse of the matter on the point reads:

“1 June, 2016:

In limine

Hungwe: Respondent is a party/litigant not just a witness. He should attend all the proceedings, else it will be akin to trying him in his absence.

Nyengedza: It is because respondent is both a litigant and a witness that he should not be present.

Hungwe: This arbitration hearing should be just like any other court hearing where there is a defendant or respondent. So too is Mazambani a litigant. That is fair and set practice. A litigant is entitled to be present when his matter is being heard. Equally we have no objection to claimant’s representative sitting in—

Arbitrator’s ruling:

I do not disagree with Mr Hungwe. I will give both parties my preliminary notes in  respect of claimant’s witness Mr Muhlwa’s (BTM) evidence in chief. Each party may read these, whereafter  we will resume the hearing.” (emphasis added)

It is evident, from the foregoing, that it was not the intention of the second respondent to muzzle the applicant from being heard. The temporary exclusion of the applicant from hearing the evidence-in-chief of the first respondent’s first witness was a result of the arbitrator’s misconstruction of the law and the rules of procedure. She, in earnest, must have entertained a genuine, but mistaken, view that the presence of the applicant during the evidence-in-chief of the first respondent’s first witness would constitute an unfair advantage to him over the first respondent.

The fact that the second respondent allowed the applicant’s legal practitioner to remain in attendance and to take notes of the evidence-in-chief of the first respondent’s first witness dispels any unfair advantage having been suffered by the applicant. Further when the applicant’s legal practitioner revisited the matter of the temporary exclusion of the applicant from the hearing with the second respondent, the latter readily agreed with him. Not only did she make the concession she also availed her notes to the applicant and adjourned the arbitration proceedings to allow the applicant the opportunity to acquaint himself with what the witness had told the second respondent in his absence.

Such matters as have been stated in the foregoing paragraph corrected the applicant’s cause of complaint to a point where no further complaint of the same remains warranted. The amount and quality of cross-examination which the applicant mounted in regard to the witness’s evidence shows in unambiguous terms that he appreciated what the witness had said. He did real and substantial justice to his case on the witness’s evidence. His complaint on the same is, therefore, without merit.

The applicant’s contention is that the second respondent did not have the capacity to deal with the parties’ case in a free, fair and impartial manner. He attached to his application Annexure B. The annexure, he insists, is proof of the fact that the second respondent’s partner in the law firm which operates under the name and style of Atherstone & Cook legal practitioners is a director of Zimnat Lion Insurance which were the insurers of the first respondent. His complaint on the matter is that the second respondent did not disclose the stated fact to the parties when she was appointed to arbitrate their dispute.

Paragraph (1) of Article (12) of the Act places an obligation on the arbitrator to disclose to the parties any circumstances which may give rise to justifiable doubts as to his impartiality or independence. It reads:

“12 (1) when a person is approached in connection with his possible appointment as an 	arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his 	impartiality or independence. An arbitrator from the time of his appointment throughout the 	arbitral proceedings, shall without delay disclose any such circumstances to the parties unless 	they have already been informed of them by him.”

The above-cited provision of the Article is mandatory. It does not offer a discretion on the arbitrator to disclose, or not to do so, any circumstances which may give rise to justifiable doubts as to his impartiality or independence.

The shortcoming of the provision, however, is that it does not provide a sanction in respect of an arbitrator who fails to comply with it. All it does is to exhort the arbitrator to make full disclosure of such circumstances as are mentioned in the Article and leave the matter at that.

The case of Musonzoa (Pvt) Ltd v Standard Fire & General Insurance Co & Anor 2002 (1) ZLR 555 (H) fills in the gap which Article 12 (1) left unattended. It states that failure by the arbitrator to disclose circumstances which give rise to justifiable doubts as to his impartiality or independence may be indicative of the fact that the arbitrator was biased against the applicant. It states, further, that a court which is seized with such a matter as the present one will make an inquiry in the course of which it will apply the reasonable man test as a standard of measuring the arbitrator’s conduct. It will, in other words, impute knowledge of the alleged circumstances to the reasonable man and decide whether there was a real danger on the part of the arbitrator unfairly to regard with favour the case of a party to the issue which is before him. See Leopard Rock Hotel Co (Pvt) Ltd & Anor v Wallenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) and R v Gough [1993] 2 ALL ER 724 (HL).

The applicant does not state the date that he became aware of the contents of Annexure B. He states that he became aware of the same after the arbitration proceedings had commenced. He says he attempted to apply for the second respondent’s recusal on the strength of the discovery which he had made.

The long and short of the applicant’s statement is that he became aware of the annexure whilst arbitration was in progress. The annexure is dated 2 December 2015. The stated matter is in sync with the applicant’s statement which is to the effect that he became aware of the contents of the annexure during the arbitration.

Given the above stated position, therefore, the applicant was at liberty to invoke Article 12 (2) of the Act. He had every opportunity to challenge the status of the second respondent as soon as he became aware of what he is alleging against her. Clause (2) of the Article accords to him the leeway to do so. It reads:

“12 (2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable 	doubts as to his impartiality or independence or ---- A party may challenge an arbitrator appointed by him, or in whose appointment he has participated only for reasons of which he becomes aware 	after the appointment has been made.”

The record indicates at p 74 that Mr Hungwe made a verbal application to challenge the second respondent’s continued hearing of the parties’ case. He did so on 20 July 2016. The relevant text which relates to the applicant’s attempt at challenging the arbitrator reads:

“20 July, 2016

Hungwe: Verbal application to challenge arbitrator in terms of Article 12.2 of Arbitration Act. 	There are justifiable doubts as to the arbitrator’s impartiality.

Basis:  Series of events being;

24 May – Initial exclusion of Resp. from proceedings;

12 July – cl. permitted to file Zimnat insurance policy (p 86 – 106 cl:s

Bundle, despite it being apparent forgery;

19 July – Resp required to attend hearing without his attorney, contra s 69 Cstn.

19 July – cl.s attorney Nyengedza was granted postponement for 25 July with no requirement to 	provide proof of court hearing date, as Hungwe has been required.

Hearing stood down to allow parties to seek to agree procedure in light of challenge. 	Parties 	could not agree.

Therefore way forward is in terms of Article 12.2 i.e Hungwe to make written submissions 	to challenge arbitrator within 14 days (The 14 days expire on 4 August 2016).

Arbitrator challenge submissions also to be served on claimant, who will submit a reply.”

In ruling as she did, the second respondent was acting in compliance with Article 13 of the Act. It deals with the procedure of challenging an arbitrator.

It reads:

“(1) …..

(2) …. A party who intends to challenge an arbitrator shall within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in Article 12 (2), send a written statement of the reasons for the challenge to the arbitral tribunal ---. The arbitral tribunal shall decide on the challenge.

(3) If the challenge …. under the procedure of para (2) of this Article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the High Court to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator may continue the arbitral proceedings and make an award.”

Two matters emerge from the above stated set of circumstances. The first is that Annexure B does not form one of the grounds for the challenge. The second is that the applicant did not submit any written statement as the law requires him to have done. All what he did was to leave the challenge in the oral form which his legal practitioner had presented it to the second respondent on 20 July 2016. His reasons for not complying with Article 13 (2) of the Act remain unknown.

The applicant’s second challenge of the arbitrator appears at p 81 of the record. He mounted it on 12 September 2016. He made it orally and not in written form as the law requires him to have done. Annexure B did not, once again, form one of his grounds for the challenge. He, for reasons known to himself, did not, once again, pursue his challenge of the second respondent’s continued hearing of the case.

The applicant’s third challenge is under case number HC 9657/16. He filed it on 26 September 2016. He did so in terms of Article 13 (3) and not Article 3 (2) of the Act which procedure he should have followed. He offers no explanation at all for having circumvented Article 13 (2) which is mandatory. He did not aver, in HC 9657/16, that he challenged the second respondent under Article 13 (2). Nor did he state that his challenge was unsuccessful. He filed HC 9657/16 in complete defiance of the law.

The fact that it is only in HC 9657/16 that Annexure B was mentioned as a reason for his challenge made it necessary for him to proceed in terms of Article 13 (2) and not 13 (3)   of the Act. He should have given the second respondent the opportunity to be informed of the reason for the challenge and for her to make an informed decision on the same. He, no doubt, deprived her of the chance to state her position on the matter. He, as it were, engaged in an ambush form of justice. His conduct in the mentioned regard leaves a lot to be desired. His realization of the fact that he had flouted the law persuaded him to withdraw HC 9657/16 before it was heard and determined. He withdrew it unconditionally and tendered wasted costs.

The unprocedural manner in which the applicant dealt with Annexure B makes it hard, if not impossible, for me to ascertain if the second respondent’s relationship with Innocent Chagonda influenced her to look at the applicant’s case with disfavour as he alleges. That is so as the second respondent’s views on the said relationship remain unknown. They would have been known if the applicant had followed the procedure which is laid down in Article 13 (2) of the Act.

The only way in which the alleged bias can properly be considered as well as ascertained occurs, in my view, on an examination of some aspects of the record of the arbitration proceedings. Among the relevant aspects of the same are all the circumstances in which the applicant or his legal practitioner or both engaged into a discourse with the second respondent.

The first such discourse relates to the events of 24 May, 2016 wherein, as a result of the second respondent’s directive, the applicant was temporarily excluded from, and later included in, the arbitration proceedings. The second such discourse relates to the events which cover the period which extends from 20 July, to 1 September, 2016. They appear at pages 74 to 77 of the record respectively.

I will, for the avoidance of doubt, narrate the events which pertain to the second discourse. I would proceed to ascertain from them the existence or otherwise of bias which the applicant alleges the second respondent harbored against him as a result of, as he put it, her relationship with Innocent Chagonda.

The second respondent, the record reveals, made every effort to bring the matter back on track after Mr Hungwe’s verbal challenge of her position on 20 July, 2016. She, during the period which extended from 10 to 16 August, 2016 e-mailed the parties proposing further dates for hearing. The first respondent’s legal practitioner gave his dates. Mr Hungwe advised that the proposed dates were not suitable. The second respondent requested him to furnish her with proposed hearing dates. He did not respond.

On 16 August, 2016 the second respondent ruled that the challenge had prescribed. She proposed that the arbitration resume on any of the following dates 17, 18, 24 August, 2016.

On 17 August, 2016 the second respondent sent an email to Mr Hungwe. She requested him to propose further three dates for hearing as he had advised that he was not available on 17, 18, 24 August, 2016. Mr Hungwe did not respond.

On 19 August, 2016 the second respondent issued a notice of hearing for 29, 31 August and 1 September, 2016. She e-mailed the dates to the parties’ legal practitioners.

On 1 September, 2016 the applicant appeared at the arbitration place alone.  His legal practitioner Mr Hungwe was absent. The applicant’s sentiments on the matter read:

“Mazambani re my legal representation status.

Hungwe is still representing respondent but respondent is equally baffled by his 	attorney’s non-	availability and non-responsiveness for arbitration. I could have looked 	for another lawyer in 	the interim and am reluctant to seek your indulgence to do so. In my opinion it’s an act of 	misconduct by Hungwe. I have decided this morning to part ways with Mr Hungwe. He is not 	interested in my case, especially re-challenge. He has not respondent (sic) to Arbitrator’s emails, 	as l see from the file which l demanded from his office.

Way forward: I am requesting today, and tomorrow to look for a new lawyer. I want to co-	operate with this arbitration, it has been a totally (sic) unnecessarily long time, caused 	mostly 	by my 	side due to my first lawyers. That’s why l dropped my first lawyer, but 	there have been 	further 	delays caused by my second lawyer.

In hindsight, can we not just make written submissions to complete this matter more 	speedily.”

Nyengedza: “I note that there is effectively no challenge to arbitrator. Secondly, the point 	of arbitration is to be cheaper and quicker. This has not been the case here. There is no 	summary of evidence from respondent, though requested by the Arbitrator from both 	parties. The summaries could have enabled us to proceed on the papers. Respondent has 	had enough time to put his house in order. Enough case law that your lawyer’s negligence 	can be visited on client. We should proceed.”

Arbitrator Ruling. “We will proceed today, stand-down for 1 hour to allow respondent to 	get notes from his lawyer Hungwe. Arbitrator will guide respondent where necessary and 	recap where we left off. I note that respondent is still technically represented but lawyer 	(sic)	absent. However, there has been so much delay, mostly at the instance of 	respondent, ref my schedule of dates itemizing the delays. It is not fair to the claimant. If 	Mr Hungwe is 	no longer representing respondent, he should renounce agency”[emphasis 	added]

I have already made my comments in regard to the events of the first discourse. I shall not, therefore, repeat myself on the same.

The events of the second discourse are very revealing. They show the extent to which the second respondent went to accommodate the applicant. They show, in clear and categorical terms, that she harboured no bias at all against him. She, if anything, bent over backward in her dealing with him and his very difficult legal practitioner. The applicant laments having engaged Mr Hungwe as his legal practitioner in the case. He made concessions which were to the effect that the delay to finalise the arbitration was attributable to no one else but to his legal practitioner and him. He cannot, by any stretch of imagination, be heard to suggest, as he is doing, that the annexure which is under consideration in this part of the judgment incapacitated the second respondent to handle his case in a fair and impartial manner. The arbitrator did her best under very difficult circumstances.

On the reasonable main test which the court enunciated in Musonzoa (Pvt) Ltd v Standard Fire & General Insurance Co (Pvt) Ltd (supra), therefore, no amount of bias can, on the circumstances of the events of 24 May 2016 and 20 July to 1 September, 2016 be imputed on the second respondent at all. She dealt with the case of the parties who were before her judiciously. She, if anything, leaned more in favour of the applicant than she did for the first respondent. Her association with Innocent Chagonda did not have any influence at all on her work as the parties’ arbitrator. She conducted herself in a very fair and professional manner. She refused to depart from the ethics which is normally associated with the work of a sound judicial officer. She did all what was judicially possible to ensure that real and substantial justice is visited upon the parties who were before her.

It is on the basis of the foregoing matters that l remain of the firm view that the applicant’s criticism of the second respondent’s work, premised on the contents of the annexure, is unwarranted. It lacks merit.

The position which l take of the applicant’s first ground for this application disposes of his fourth ground of the same. The second respondent, it has already been established, treated the parties who were before her fairly and equally. The applicant, it has further been established, failed to prove that the award is in conflict with the public policy of Zimbabwe. The temporary exclusion from arbitration which he endured at the commencement of the same was as a result of the second respondent’s genuine but  mistaken misconstruction of the law as well as the rules of procedure. She corrected that position as soon as she realised her mistake in the mentioned regard. She handed her notes to the applicant and allowed him to go through the same with his legal representative before he cross-examined the first respondent’s first witness who had testified in his absence. At any rate, his legal practitioner who remained in the hearing during his temporary absence from the same was able to assist him to appreciate the evidence of the first respondent’s witness. The applicant did not, therefore, suffer any prejudice at all under the stated set of circumstances.

The applicant’s second ground which is to the effect that the parties’ dispute could not be settled by arbitration is more far-fetched than it is real. What was before the second respondent is the contract which the parties signed. Clause 12 of the same enjoined the parties to refer disputes which arose between them to arbitration. The dispute which the second respondent had to resolve was captured in clause 11.2 of the parties’ contract. The clause reads:

“11.2 In the event that the farmer fails to deliver 650 metric tonnes of maize to the 	company on or before the 31st of July 2014 in terms of clause 5.15, for any reason 	whatsoever, the farmer shall forthwith be liable to pay to the company the full value of 	the total 	volume of undelivered maize as at that date calculated using the purchase price 	that would have 	been payable to the farmer by either the Grain Marketing Board or the 	company for maize 	delivered on the 30th June 2014 ….” (emphasis added).

It is common cause that the applicant was contracted to grow and deliver to the first respondent, on 31 July 2014, 650 metric tonnes of maize. He grew and delivered 108 834 metric tonnes of maize to the first respondent. The quantity of the undelivered maize stood at 541.166 metric tonnes as per the first respondent’s claim.

Maize was selling at the Grain Marketing Board price of $390 per tonne at the time that the applicant delivered the same to the first respondent. The first respondent claimed the full value of the total volume of the undelivered maize. It claimed the sum of (541.166 tonnes x $390 per ton) $211 054.74. The stated sum constituted the parties dispute which they referred to arbitration.

The second respondent remained alive to the issues which were before her. She applied her mind properly. She made a finding which related to the quantity and value of the maize which the applicant delivered to the first respondent. Her finding reduced the figure of the total volume of the undelivered maize from 541.166 to 539.215 metric tonnes. The same reduced the first respondent’s claim, in monetary terms, from $211 054.74 to $210 293.85 which she factored into the arbitral award.

The issue for the arbitrator was that of ascertaining the applicant’s liability to the first respondent. The issue cannot be said to have been falling outside the scope of arbitration as the applicant is persuading the court to believe. He admits that he received inputs in cash and kind from the first respondent. He admits that he did not deliver 650 metric tonnes of maize to the first respondent as he was contracted to do.

The arbitrator did not, therefore, have any difficulty in ascertaining the applicant’s liability towards the first respondent. The matter which was before her turned on the extent to which the applicant had breached the contract. She acquitted herself well in the mentioned regard. She applied her mind well to the issues which were before her

The applicant was, in my view, the author of his own misfortunes. He engaged not less than six firms of legal practitioners, each in turn, in the case. The rapidity with which he picked and dropped firms of legal practitioners did more harm to his case than good. The tendency of those losing track of what the other law firm had accomplished or did not accomplish became more real than it was fanciful. The old adage which states that “a rolling stone gathers no morse” holds true in so far as his case is concerned. He shot himself in the foot, so to speak.

None of the grounds which the applicant advanced qualify to have the arbitral award set aside. All the four grounds lack merit. He, on his part, failed to prove his case on a balance of probabilities. The application is, therefore, dismissed with costs.

Takaindisa Law Chambers, applicant’s legal practitioners

Scanlen & Holderness, 1st respondent’s legal practitioners

Atherstone & Cook, 2nd respondent’s legal practitioners