Marange Resources (Private) Limited v Core Mining and Minerals (Private) Limited (In Liquidation) and Moses Chinhengo, (Retired Judge) N.O and President of the Law Society of Zimbabwe N.O and Attorney General of Zimbabwe N.O

### Preamble
1
HH 187-13
HC 3087-13
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MARANGE RESOURCES (PRIVATE) LIMITED

versus

CORE MINING AND MINERALS (PRIVATE) LIMITED

(IN LIQUIDATION)

and

MOSES CHINHENGO, (RETIRED JUDGE) N.O

and

PRESIDENT OF THE LAW SOCIETY OF ZIMBABWE N.O

and

ATTORNEY GENERAL OF ZIMBABWE N.O

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 30 May 2013 &14 June 2013

.

Urgent Chamber Application

Advocate, F .Girach, for the applicant

With Advocate, T. Mpofu

Advocate Ochieng, for the 1st respondent

With B. Mtetwa

C.  Mtangadura for the 4th respondent

DUBE J:  This is an urgent application for an Interim Interdict against the first, second and third respondents to stop them from constituting an arbitral panel and proceeding with arbitration proceedings. The applicant sought a provisional order in the following terms.

TERMS OF THE FINAL ORDER SOUGHT

“1.	That the arbitration proceedings between the applicant and the first respondent in this matter, currently pending before the second respondent be and are hereby stayed until the proceedings in Case No. HC 8410/2010 are concluded.

2.	That the first respondent pays cost of suit.

TERMS OF INTERIM ORDER SOUGHT

That pending final determination of Case No. HC 8410/10 and criminal trial  under case number CRB   /10, first, second, third and fourth respondents be and are hereby interdicted from instituting and proceeding with Arbitration Proceedings in terms of the Joint Venture Agreement and Shareholders Agreement between the applicant and the first respondent dated the 14 August 2009 that the applicant is a party”.

The second and third respondents did not oppose the application. The Interim Interdict is being sought pending the determination of an application brought by the first respondent and currently pending before this court on the validity or otherwise of a shareholder’s agreement under HC 8410/10 and a criminal trial pending before BHUNU J. The salient facts of this case are briefly as follows. A Joint Venture Agreement and Shareholders Agreement was entered into on 14 August 2009 between Marange Resources (Pvt) Ltd, (the applicant) the Zimbabwe Mining Development Corporation (ZMDC) and Core Mining and Mineral Resources (Pty) Ltd (the first respondent). A dispute arose between the parties over the participation of the first respondent in the affairs of the joint venture company. The applicant’s position is that the agreement between the parties is void .Following this dispute, the first respondent filed an application under HC 8410/10 seeking an order declaring the agreement signed by the parties valid. A director of the first respondent, Lovemore Kurotwi is being prosecuted on allegations of fraud arising out of this contract. On 10 February 2012 the first respondent was placed under a winding up order by a South African court and liquidators appointed.

Sometime in October 2010, negotiations for the appointment of an arbitrator commenced. These having failed, the third respondent, The President of the Law Society, was approached for assistance, resulting in the appointment of retired Judge, MOSES CHINHENGO as arbitrator. On 12 April 2013 a pre-arbitration meeting was convened. The applicant boycotted this meeting. The meeting proceeded and preliminary issues were identified and an order made directing the parties to file submissions by set dates and a date for the hearing set. The applicant subsequently filed this application on 23 April 2013.

When this urgent chamber application was initially placed before me, I declined to entertain the application citing that the matter was not urgent and that the applicant has other remedies available to it under the Arbitration Act. That the applicant had not exhausted domestic remedies available to it. I underscored that although the applicant had not been present when preliminary issues were defined, the applicant could still raise any other preliminary issues that it wished the arbitrator to consider. Aggrieved by this decision the applicant requested to have audience with the court to address it on the issue of urgency.  This request was duly granted.  The court had not dealt with application on the merits and in the exercise of its discretion I decided to hear the parties.  The court was not functus officio.

The matter was set down and arguments on the issues commenced.  There was a delay in the finalisation of this matter as initially parties had indicated that they would settle. Attempts to settle having failed, the matter was set down again for argument. In the interim, the arbitrator continued with the arbitration proceedings.  The court issued an order staying proceedings pending the outcome of this urgent application.

I am grateful to the parties for filing detailed heads of argument for my consideration.

A number of preliminary issues emerge from both the first respondent and the applicant’s submissions. These are summarised under the following headings.

The first respondent’s first preliminary point relates to the citation of the first respondent. Mrs Mtewa submitted as follows. The first respondent has been cited as Core Mining and Minerals (Pvt) Ltd (In Liquidation). The final winding up order from the South Gauteng High Court refers to a company cited as Core Mining and Mineral Resources (Pty) Ltd.  The address for service of the company is No 17 Durham Street Raedene, Estates Johannesburg, South Africa. This application was served at Messrs Mtetwa and Nyambirai ostensibly as representatives of the first respondent. She submitted that Core Mining and Minerals (Pvt) Ltd (In Liquidation) is not a party to these proceedings and is not represented by the said law firm. The first respondent is a South African registered company and it has been cited as Core Mining and Minerals (Pvt) Ltd (In Liquidation) instead of Core Mining and Mineral Resources (Pty) Ltd. Although it is apparent from communication regarding the arbitration proceedings that the company involved is Core Mining and Mineral Resources with a (Pty), the applicant cited the company as a (Pvt) company. The first respondent conceded that the citation of Core Mining as a (Pvt) company by the applicant was in error and that this is a common error as even the arbitrator made the same error in the pre-hearing meeting minutes. Mr Kurotwi, a director of the same company made the same error in his supporting affidavit to the opposing papers where the company is specified as a (Pvt) company. The respondent has no objection to having the error corrected. The applicant has declined the offer to rectify its papers and amend the citation. The first respondent submitted that the applicant has adopted the illogical position that its own self-created error in the citation of first respondent entitles it to the relief on the basis that there is no opposition before the court. The first respondent maintained that the application is a nullity on the basis that first respondent is a non-existent company and their intervention is to protect their client’s interests and is permissible under the rules of court.

The applicant submitted that it is erroneous to state that the application is a nullity on the basis that the first respondent is a non existant company yet it is the very first respondent that dragged the applicant to arbitration. If the present application is a nullity, then the proceedings before the arbitrator are a nullity as well and should be interdicted.

The first respondent’s second preliminary point relates to the issue of urgency. Its position is that this application is not urgent and urged the court to dismiss the application. Counsel for the first respondent gave a chronicle of the events leading to the appointment of the arbitrator. The process to appoint an arbitrator commenced with the correspondence of the 19th October 2012 from the first respondent to the applicant. The first respondent approached the Commercial Arbitration Centre on 27 November 2012 for the appointment of an arbitrator .The applicant became aware of this fact on 28 November 2012.If the applicant intended to stop the process, the duty to act arose from there. The court should refuse to entertain this application because the urgency is self-created as the applicant failed to take all necessary steps to stop that process and no reason has been given why nothing was done until some five months later when arbitration commenced.

The first respondent contended that there are 3 specific dates that should have triggered the present application and the applicant failed to approach this court for a remedy.  The dates are as follows;

1)	The 28th of November 2012, when the matter was first brought before the Commercial Arbitration Centre and when the issue of the appointment of the arbitrator became known.

2)	The 21st of December 2012 when the first respondent referred the appointment of an arbitrator to third respondent.

3)	The 18th of February 2013 when the third respondent appointed second respondent as

arbitrator.

The first respondent asserted that the cause of action has been on-going since November 2012 and the applicant conveniently chose to avoid placing this fact before the court. That the applicant has deliberately concealed and withheld material and relevant facts on the subject of the appointment of the arbitrator from the court, giving the impression that the issue only arose in April 2013. The court was urged to frown at the applicant’s attempt to snatch at relief.

The first respondent submitted further that the applicant has been given an opportunity to argue the veracity or otherwise of its arguments before the second respondent and has declined to take up the offer.  It asserted that this application amounts to a blatant abuse of process. That the applicant has failed to explain why nothing has been done to set down Case No HC8410\10 for argument. The first respondent contended that a litigant who has slept on its rights for a period of over two and a half years when the rules  of court offer it recourse cannot approach the court on an urgent basis to frustrate an independent process brought by a third party who is not even before the court. The court was referred to the case of Chidawu & 3 Ors v J Shah & 4 Ors SC 12/13 for this approach.

In its response the applicant submitted that the first respondent had initially agreed to settle this matter. That the first respondent cannot consent to the grant of the provisional order and when the parties fail to agree on the terms, turn around and say the matter is not urgent. It urged the court not to allow the first respondent to approbate and reprobate a step taken in the proceedings. That the first respondent can only do one or the other. The applicant referred the court to the case of S v Marutsi 1990 2 ZLR 370 SC for this approach. The applicant urged the court in its determination of the issue of urgency, to determine whether there are prima facie valid arbitration proceedings, because if there are not, no other relief will be available save the grant of the interdict.

The applicant submitted that apart from absence of an alternative remedy available to it, the matter is urgent on the well-known principles of urgency. The approach is that a matter is urgent if it satisfies the two requirements of time and consequence. That a matter is urgent if at the time to act, the matter cannot wait. The applicant contended that the court cannot require the applicant to participate in a nullity. That as the first respondent is under liquidation, and has no wherewithal to meet the applicant’s costs, the applicant will suffer economic harm if these proceedings go ahead. The costs cannot be recovered particularly in view of the fact that the liquidator has not been recognized. The applicant contended that there was no need to act before the arbitration proceedings were instituted as there was nothing to interdict. That when the matter was placed before the arbitrator and the applicant had expressed its reservations, he gave the impression that the arbitration would only proceed after the parties had dealt with the issues of concern.

The issue of the jurisdiction of the arbitrator is closely linked with the issue of urgency. The applicant submitted that there is no valid shareholders agreement and that being the case, the so called arbitration clause cannot survive an agreement which is void. It was argued that the arbitrator does not have any right to grant any remedy or to sit in judgement over the issue as clause 28 is not an arbitration clause and that there is no arbitration to talk about. That this court‘s position is that a clause which obliges the parties to negotiate first before they arbitrate is not an arbitration clause. The applicant insisted that as the clause is not an arbitration clause but a negotiation clause, there is no bar to the court  dealing with the application. The applicant further submitted that for an arbitrator to be validly appointed, the agreement in terms of which he is appointed must be a valid one  and therefore that he cannot make a determination on the validity of the agreement. The applicant contended  that the question of the validity of the agreement is never a preliminary issue that can be determined by an arbitrator in terms of the law. The court was referred to the book, Commercial Arbitration Mustill & Boyd- Butterworths for the proposition that the arbitrator cannot make a binding award as to the initial existence of the contract. The applicant argued that  the arbitration clause is not wide enough to cover a dispute relating to the  validity of the agreement. The court was also referred to  the cases of  Croplink (Pvt) Ltd  1966 (1) ZLR 514 Sentrate Kunsmis Karparasie (Edms) Bkp v Van Heerden and Ors 1972 (2) SA 729 (W) and Heyman v Darwins Ltd 942 all ER at p 353 and Seroin Brothers Company Limited and Ors 1943 AD at 400 where the court remarked as follows:

“I am of the view, therefore that, where it is said a contract is voidable and has been voided because it was induced by fraud or false misrepresentation, that dispute does not fall to be dealt with in terms of the arbitration clause unless the clause specifically says.  This must be so because if the contract is voidable on this type of ground, it is voidable ab initio  and hence that clause falls away.  The present clause, as we have seen, is very wide but its wording does not include a dispute as to the voidability ab initio of this contract.”

The applicant submitted that it is for the court to make a determination on the validity of an arbitration agreement in terms of Article 8 of the Uncitral Model Law and that is why it is important for HC 8410\10 to be allowed to run its full course. That the court cannot pass on the responsibility to make a determination and the existence of an arbitrator cannot be a basis for holding that the matter is not urgent.

The applicant also argued that the matter is urgent as the time table set between the first and second respondent does not allow the applicant to approach the court by way of ordinary application. If the arbitration is allowed to continue, the arbitration will be concluded before the finalisation of HC 8410/10 and the Criminal proceedings before BHUNU J.  That the balance of convenience favours the granting of the interdict and there is no prejudice that will be suffered by the respondents if the relief sought is granted.  That the applicant stands to suffer irreparable harm as its rights will be made subject to an arbitration process and award wholly premised on a disputed shareholder’s agreement.

The applicant urged the court to determine whether there are prima facie valid arbitration proceedings because if there are not, no other relief will be available save the grant of the interdict. The applicant argued that the issue of urgency cannot be dealt with outside the consideration of the matter on the merits.

The first respondent maintained that the arbitrator has wide powers in terms of Article 17 and 18 to deal with preliminary issues ranging from challenges to jurisdiction and issues of costs.  That the applicant is seeking to avoid submitting itself before the arbitral tribunal.

The applicant’s preliminary point is to the effect that there is no valid opposition before the court filed on behalf of the first respondent and further that there is no appearance for the first respondent. Consequently, that there is no one to argue in support of the urgency point. That the position is simplified by Mrs Mtetwa who indicated that she holds no brief from the first respondent. The applicant urged the court to treat the matter as unopposed. In support of this proposition the applicant further submitted that there is no valid opposition in that Mr Lovemore Kurotwi, a former director of the first respondent, purported to file an affidavit in opposition to the urgent chamber application on behalf of company that is wound up by the court. That he deposed to the affidavit on the basis that he is a shareholder and director in the first respondent and has authority to act in place and stead of first respondent in this matter. The applicant requested the court to determine whether Mr Kurotwi being a former director in first respondent has the right to file any opposition on behalf of the first respondent . The applicant maintained that a shareholder or director of a company that has been placed under an order of liquidation cannot represent the company without the liquidator’s authorisation. As soon as a winding up order is made the company is no longer in the control of the directors as control passes to the liquidator upon his appointment  That Mr Kurotwi does not have the power to oppose the application much as he has no power to institute arbitration proceedings. That when a company is wound up by the court the directors are divested of all powers and control of the company  passes to the liquidator upon his appointment. The applicant asserted that the first respondent has not opposed the relief sought as the purported opposition constitutes a fatally defective pleading incapable of cure, condonation or amendment. The applicant submitted that this is a straight forward matter that resolves this application.

The respondent submitted that the bald averment as to Mr Kurotwi’s authority  does not turn this matter into an unopposed application as there is no obligation for a respondent in an urgent application to file opposing papers given the time constraints. The notice of opposition was not essential to bring itself before the court. The first respondent submitted that whilst the averment that he had authority to depose to the affidavit may be wrong in law, that fact should not render the affidavit inadmissible. He has an interest in the criminal case just as the Attorney General has. It would be a breach of the audi altram partem rule if he was not heard. Mrs Mtetwa submitted that the first respondent has an interest in the application and relief sought and is entitled to intervene to protect their client’s interests.

The next point raised by the applicant in its heads of argument is whether the liquidator ought to have been cited in these proceedings. The applicant submitted that there was no need for the liquidator to be cited in these proceedings because the first respondent has not disclosed the fact that it is under liquidation. The applicant submitted that the citation of the first respondent (in liquidation) is sufficient and that it is not the liquidator who must be cited but the company in liquidation. Further that the applicant has cited a party who purports to be before the arbitrator. The applicant argued that even if there had been need to join the liquidator, there would be no basis for the failure of the matter. That rule 87 cures the defect. The rule provides as follows.

“(1) 	No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may in  any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties in the cause or matter.”

The applicant submitted that certain preconditions have to be met before a foreign liquidator could be cited in proceedings. That if these preconditions have not been met, there can be no obligation to serve the liquidator. The applicant relies for this proposition on Rule 19(1) 0f the Companies (Winding) Up Rules of 1972. The rule requires that where a foreign company has been placed in liquidation outside Zimbabwe, the liquidator may apply for an order recognizing his appointment and declaring that he be entitled to the sole administration of all the assets of the company in this country. The applicant submitted that this has not been done and that there is no basis upon which the applicant could be required to serve the liquidator. The applicant contends that the liquidator could not have given authority for the institution of those proceedings before his recognition.

The respondent submitted that the application is a nullity because the liquidator is not cited and that the liquidator was not served with the application as the application was not directed to the registered office of the first respondent. Mrs Mtetwa submitted that the legal practitioners on whom service was effected have no locus standi and that they are entitled to intervene as they have an interest in the application and the relief sought to protect their client’s interests.

Mr Mtangadura raised the same concerns as the applicant regarding Mr Kurotwi’s locus standi to bring arbitration proceedings on behalf of a company in liquidation. He also submitted that the High Court would be failing in its duties if it arrogates to a tribunal duties which it can address. He maintained that the court has inherent jurisdiction to deal with the application despite the competence of the adjudicating authority to decide  the same issues.

I have decided to deal with the point concerning the citation of the first respondent first because I have to satisfy myself that the parties are properly before me.

CITATION OF 1ST RESPONDENT

The first respondent’s contention is that Core Mining and Mining Resources (Pty) Ltd was not properly cited and served. It urged the court to dismiss the application on this basis alone. Where a party to legal proceedings has not been properly cited in circumstances where the misdescription complained of does not leave in doubt the identity of the party intended to be sued, the misdescription may be corrected by amendment at any stage of the proceedings. In Mhanyami Fishing And Transport Co-operative Society Limited And 2 Ors v The Director General Parks And Wildlife And 2 Ors, HH92/11, the court dismissed an application on the basis that the applicants had brought non-existent entities before the court. The citation of the first respondent as a (Pvt) company instead of (Pty) company is a misdescription because the company is not correctly described resulting in an existing company being incorrectly cited. The first respondent is cited as a ‘Private’ company as opposed to a’ Proprietary’ company. The description ‘’Proprietary” is identified with a company registered in South Africa and ‘Private,’ a Zimbabwean company.  The citation of the company gives the impression that the company sought to be interdicted is a Zimbabwean company when first respondent is a South African company. The court also  notes that the citation does not include the  “Resources” part of the  company description. There is no dispute that the party intended to be cited  and interdicted is Core Mining and Mining Resources (Pty) Ltd. The reality is that the applicant seeks an interdict against the company that instituted proceedings with the arbitrator that is the (Pty) company. This misdescription appears to be a genuine and common mistake .It is not only the applicant which has made the mistake. The arbitrator and even one of the directors is guilty of the same lapse. This is the sort of misdescription which can be corrected.  Even though the first respondent has been incorrectly described, the applicant cannot not be denied the opportunity to correct the error and continue with the proceedings. Allowing the application to proceed as it is would result in an absurdity as if an order should be granted against Core Mining and Mining (Pvt) Ltd, the order would not be enforceable against Core Mining and Resources (Pty) Ltd or at all.

The applicant cannot benefit from its own wrong doing. The applicant has not amended its papers despite an invitation by the first respondent to do so. This is to its detriment. I find the applicant’s position that it is entitled to the relief on the basis that there is no opposition awkward and senseless. The same approach was adopted by HLATSHWAYO JA in Mudzengi & Ors v Hungwe & Anor 2001 (2)ZLR175@182-D-E  where the court expressed similar sentiments as follows:-

“I find this to be a rather startling and unusual objection coming as it did from a party that had itself cited the respondents in the first place as having the locus standi to defend the application. Surely, an applicant who cites a party lacking in legal capacity cannot rely on that incapacity to have the matter resolved in its favour. Rather, if the applicant knowingly cites a party lacking in locus standi, then the matter will not be properly before the court and it must be dismissed with costs on a higher scale’’

The first respondent was improperly cited, the other respondents have not opposed the

application because they have no real interest in the outcome of the application. The real dispute is between the applicant and the first respondent and consequently there is no first respondent before me as that entity does not exist. The matter is improperly before me. The applicants deserve to be mulcted with an order of cots on a higher scale.

Assuming that I am wrong in this respect, I would still reach the same decision in respect of the question of urgency for the following reasons.

URGENCY

The certificate of service is most inadequate. The application does not give the background to the matter, choosing to chronicle events from 10 April 2013 onwards. The applicants failed to disclose in their application the various correspondences that took place subsequent to the appointment of the arbitrator in their application. The applicant had a duty to  make full disclosure of all material facts. An applicant must  always act in good faith and disclose  all material and relevant information that will assist in the determination of the matter. In the event that a court faced with such an application decides to deal with the matter on the papers, this results in prejudice to the respondent and ultimately the court is misled. The courts should frown at such conduct. The same approach was adopted in Graspeck Investments (Pvt) Ltd v Delta Operation (Pvt) Ltd 2002 (2) ZLR 551 @ 554 where the court remarked as follows:-

‘If the court had chosen the exparte route, which is competent, it would have been misled by the applicant. In applications of this nature, utmost good faith must be shown by the applicant…..It is the duty of the applicant to lay all relevant facts before the court, so that it may have full knowledge of all the circumstances of the case before making its order.”

I agree with these sentiments. It is the duty of the courts to discourage applications that are characterised by material non disclosures especially where it appears that the non – disclosures were deliberate.

The certificate does not explain the reasons why the application was not made as soon as it was realised that an arbitrator had been appointed and further why it was made after the commencement of the arbitration. I do not think that Fanuel Francis Nyamayaro who certified the matter as urgent would have done so had he had knowledge of the background and the correspondences that took place between the parties up to the time the application was made. He seems to have been a victim of the nondisclosures complained of. If he was aware, then he abused the urgent application procedure and this reflects on him as an officer of this court.

As regards the issue of irreparable harm, averments were made to the effect that:

“The commercial urgency of the matter is overwhelming. The applicant will suffer extremely high losses if the illegality by the first and second respondents is not  interdicted.”

What high losses? It does not seem like the person who certified the proceedings as urgent applied his mind fully to the requirements of urgency. The applicant has not canvassed the nature of the harm that it is likely to suffer if the arbitration proceedings proceed and further if this harm is irreparable and why. The certificate of urgency does not disclose urgency. An urgent application stands or falls on the basis of averments made in the certificate of urgency. I am  not satisfied  that if the arbitration proceeds, irreparable harm will occur.

The applicant has not treated this matter with urgency. This matter has been going on since October 2010, a period  of over two years.  The applicant has always known that the first respondent intended to have the matter referred to arbitration and did nothing to stop the arbitration.  There is a number of correspondences between November 2012 and the filing of this application. These deal with the appointment of the arbitrator and the setting up of a mutually convenient date for the proceedings. Events during this period, especially the appointment of the arbitrator on 18 February 2013 ought to have triggered this application. This did not happen.  The applicant seeks to rely on the pendency of the case under HC 8410\10 for the relief of an interdict and yet it has  not done anything to have the matter set down for argument so that the dispute is resolved. That is most inappropriate. Where a party fails to assert its rights within the time it is expected to act, it cannot bank on an urgent application to get redress. This position was clearly enunciated in Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 @ 193E-H follows:

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non- timeous action if there has been any delay.’’

The applicant did nothing during the period it was expected to act and to assert its right to be heard. The applicant waited for the day of reckoning. It  sat on its laurels and waited until the appointment of the arbitrator.  This urgency is self- created and is clearly an abuse of court process. Such  conduct is inexcusable.

As regards the issue of the jurisdiction of the arbitrator and the availability of an alternative remedy, the Arbitration Act [Cap 7;15], (the Act) provides in article 16 as follows.

“Article 16

Competence of arbitral tribunal to rule on its jurisdiction

The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract…...”

The arbitrator has power and competence to determine any challenge raised in respect of his jurisdiction and any objections with respect to the existence or validity of the arbitration agreement. The  Arbitration Act  provides  for a remedy  to resolve this dispute. The applicant contends that the arbitrator has no power to determine the validity of the agreement. The applicant may well be correct. Whether the arbitrator has power to deal only with the narrow issue of the validity of the arbitration clause or the validity of the whole contract is the issue that should have been taken up with him. The parties were required to raise their preliminary issues with  the arbitrator for his determination. There  are a number of authorities that have been referred to by both parties with regards this issue. All the arbitrator is saying is, address me on the preliminary issues and I will make my ruling. The applicant is misconstruing the invitation to make submissions on the issue of jurisdiction with the actual arbitration proceedings over the validity of the contract. The issue regarding whether  the arbitrator has power to rule on whether  there is an agreement has a bearing on the  issue of his jurisdiction and  should have  been  taken up with the arbitrator for his determination. The applicant should have complied with the directive to file submissions on preliminary issues and let the arbitrator make a ruling on the matter. The appellant has not exhausted the domestic remedies provided for in the Act. There was an effective remedy  available capable of  providing  effective redress for the applicant’s concerns. The applicant should have exhausted this remedy before approaching this court. See Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 234 (S) at 249 D and Djordjevic and The Chairman of the Practice Control Committee of the Medical and Dental Practitioners Council of Zimbabwe & Anor HH 110/09 for this approach.

The arbitrator also has power to order interim measures in terms of Article 17 (1) and  (2)(a) of the Act. He also has power to grant interdicts in terms of Article 17 (2(a). My observation is that the arbitrator can do exactly what the High Court is being asked to do by the applicant. The applicant has not exhausted the domestic remedies available to it. I am aware that arbitration proceedings have commenced with the arbitrator reportedly hearing preliminary issues and reserving judgement. In the event that the arbitrator decides to proceed with the actual arbitration on the merits and comes out with an award not favourable to the applicant, the applicant is not without a remedy. The applicant can apply to have the award set aside by the High Court in terms of Article 34(1) of the Act. There is no reasonable apprehension of harm as any harm likely to ensue is curable.

I have considered all the arguments advanced by the applicant on the jurisdiction of the arbitrator.  I am not going to deal with the merits of these arguments and have decided that as the arbitrator has jurisdiction to determine and “rule on its own jurisdiction”, he is the best person to determine this question and any other preliminary points arising.  I do not wish to pre-empt the arbitrator  He is also best placed to determine whether or not the liquidator was properly cited and served for the arbitration proceedings and if indeed the liquidator should be part of the proceedings before him.  The arbitrator is capable of dealing with all the preliminary issues raised by the applicant.

The points I have dealt with on urgency dispose of the application. I am not satisfied that the matter is urgent .This application fails. It will not be necessary to decide all the other  issues raised.

In the result the application is dismissed with costs on an Attorney and Client scale.

Chambati & Mataka Attorneys, applicant’s legal practitioners

Mtetwa & Nyamirai, 1st respondent’s legal practitioners

Criminal Division of the AG’S Office, 4th respondent’s legal practitioners