Background
The Appellant [ZESA Holdings (Private) Limited] contracted 1^st Respondent [Clovegate Elevator Company (Private) Limited] to supply, fix and maintain 4 elevators at its premises. The 1^st Respondent only supplied and fixed one elevator prompting the Appellant to cancel the contract. 1^st Respondent was aggrieved by the cancellation and referred the matter to arbitration in terms of clause 10 of the contract. The Arbitrator cited as 2^nd Respondent, found the cancellation to be unlawful, reversed it and reinstated the contract. He however did not relate to the alternative claim relating to specific performance.

The Appellant applied for the setting aside of the arbitral award on the basis that it was contrary to public policy. The 1^st Respondent also applied for the registration of the award. The two applications were consolidated. The Application for setting aside the award was dismissed and that of registration was granted.

The full case case can be downloaded here.

Arbitration
The 1^st Respondent sought compliance of the Appellant and was advised that the work had been completed by a third party. The parties could not agree on the Appellant’s liability and consequential damages and as a result the 1^st Respondent applied to the Arbitrator for Quantification of the Registered Arbitral Award. The failure to agree prompted the 1^st Respondent to file an application to the Arbitrator entitled: “Application for Quantification of Registered Arbitral Award” on 31 July 2020. It sought the payment of contractual damages and damages for loss of business.

The Appellant opposed the 1^st Respondent’s claim and raised preliminary points relating to jurisdiction, functus officio, finality to litigation and that the relief sought was incompetent.

 On 2 December 2020, the Arbitrator in dismissing the preliminary points held that he had the jurisdiction to determine the quantification of damages in lieu of his earlier arbitral award against the Appellant for specific performance that had been registered by the High Court on 10 June 2020. He also found out that he could re-open the case. Consequent upon assuming jurisdiction, the Arbitrator further directed the Appellant to file further affidavits and submissions in response to the 1^st Respondent’s replication on the quantification of damages within a prescribed period, failing which he would proceed to determine the claim on the merits.

High Court
Aggrieved by the determination, the Appellant applied to the High Court for the setting aside of the interim arbitral award in terms of Article 34 of the Arbitration Act [Chapter 7:15]. It also sought and obtained an interim interdict against the continuation of the Quantification proceedings pending the application for setting aside. In turn the Arbitrator filed a withdrawal of award relating to the registered award.

The High Court dismissed the application for setting aside of the interim award on the basis that the Arbitrator was not functus officio, had jurisdiction and the direction for replication was an order of an interlocutory nature.

Supreme Court
The Appellant then appealed to the Supreme Court seeking the setting aside of the High Court judgment. The Supreme Court under judgment number SC 69/23 in allowing the appeal held that the Arbitrator could not revive his jurisdiction nor amend his earlier order as he purported to do as he had fully and finally exhausted his jurisdiction. The Arbitrator did not have jurisdiction to reopen the case. The exercise of jurisdiction by the Arbitrator in the circumstances of this case was therefore contrary to the public policy of Zimbabwe. He could only do so with the Appellant’s consent, which as is apparent from the proceedings, was never given. The Arbitrator should have upheld the Appellant’s preliminary point on jurisdiction. The court a quo, in turn, should have found the finding of the Arbitrator to have been in breach of the public policy of Zimbabwe.


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