Alvestone Estate (1985) (Private) Limited v Tracy Mutinhiri and Honourable N. T. Mtshiya (Retired) N.O. (Arbitrator)

The respondent, Dr Tracy Mutinhiri, held an offer letter to a portion of Waltondale Farm in Marondera and defaulted on a US$340,000 loan to CBZ Bank by early 2018. On 5 May 2018, the parties entered into a Land Utilisation and Debt Repayment Agreement whereby the respondent made the farm available to the applicant, Alvestone Estate (1985) (Pvt) Ltd, to manage farming operations for a fixed term of ten years in exchange for the applicant providing inputs and repaying the bank loan. The Agreement expressly provided that any variations or amendments required written consent from both parties. The applicant repaid the bank debt within three years. After debt settlement, the respondent demanded that the applicant vacate the farm and began interfering with farming operations, despite the Agreement still being in force. The applicant referred a dispute to arbitration at the Commercial Arbitration Centre, Harare, seeking a declaration that the Agreement remained extant and an interdict restraining the respondent from interference. The arbitrator found the Agreement extant but ordered the parties to renegotiate new terms and imposed provisions for automatic termination if renegotiation failed. The applicant applied to set aside paragraphs 24(2) and 24(3) of the arbitral award under Article 34(2)(iii) of the Arbitration Act.

• Whether the arbitrator exceeded his mandate by ordering renegotiation of the Agreement and inserting new provisions not contemplated by the parties, thereby falling outside the scope of the submission to arbitration
• Whether paragraphs 24(2) and 24(3) of the arbitral award should be set aside under Article 34(2)(iii) of the Arbitration Act [Chapter 7:15]
• Whether the respondent's lack of legal representation, claims of undue hardship, or unjust enrichment provided grounds to uphold the disputed portions of the award
• Whether partial severance of an arbitral award is permissible under Article 34(2)(iii)

1. Paragraphs 24(2) and 24(3) of the arbitral award are set aside. 2. Paragraphs 24(1) and 24(4) are amended accordingly to remove the provisions ordered in paras 24(2)–(3) regarding renegotiation and automatic termination of the agreement. 3. Each party shall bear its own costs of this application.

An arbitrator's powers derive solely from the terms of reference agreed by the parties, and an arbitrator exceeds his mandate when he decides issues not submitted to arbitration or orders remedies not contemplated by the submission. Under Article 34(2)(iii) of the Arbitration Act [Chapter 7:15], an arbitral award may be set aside where it deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission. Partial severance is permitted under Article 34(2)(iii), allowing a court to set aside only the portion of an award that exceeds the arbitrator's jurisdiction while preserving the valid portions. An arbitrator cannot unilaterally alter or rewrite contractual terms agreed by the parties, particularly where the contract expressly requires written consent for any variations. Equitable considerations such as undue hardship or unjust enrichment are not grounds for setting aside an arbitral award under the statutory scheme, which provides exclusive and narrow grounds for challenge.

The court observed that arbitration practice commonly permits self-representation and that lack of ongoing legal counsel is not a valid basis to nullify an award where the party was given notice and opportunity to present their case. The court noted that Article 34 does not countenance a merits review of an arbitrator's decision or equitable arguments except as limited to enumerated jurisdictional defects. The court commented that the Agreement expressly provided for a minimum ten-year term and was not terminated by debt repayment alone, thus the respondent's contention that the contract discharged upon loan settlement was contrary to its own terms. The court remarked that claims of unjust enrichment were misplaced where a party had expended resources and performed contractual obligations in exchange for agreed consideration. The court noted that in equity and in line with practice in arbitration challenges, where there is a true dispute of law and neither party has succeeded fully, no order for costs should be made against either party.

This case is significant in Zimbabwean arbitration law as it clarifies the scope of arbitral jurisdiction and the grounds for setting aside arbitral awards under Article 34(2)(iii) of the Arbitration Act [Chapter 7:15], which is based on the UNCITRAL Model Law. It establishes that arbitrators cannot exceed their mandate by deciding issues not submitted to them or by rewriting contractual terms agreed by the parties. The case reinforces the principle that arbitrators derive their powers solely from the terms of reference and cannot enlarge their mandate on their own motion. It also demonstrates the availability and application of partial severance of arbitral awards where only part of the award exceeds the arbitrator's jurisdiction. The judgment clarifies that equitable considerations such as hardship or unjust enrichment, and procedural matters such as lack of legal representation (where the party was able to present their case), are not grounds for setting aside or refusing to enforce arbitral awards under the narrow statutory grounds provided in the Act.