Davis Tawodzera Muhambi v D.E.B Long (Arbitrator) and Bruno Fungayi Takawira

The second respondent sold a Mercedes Benz S600 motor vehicle to the applicant for US$65,000. The applicant paid US$35,000, leaving a balance of US$30,000. A dispute arose between the parties and was referred to the first respondent for arbitration. On 16 December 2013, the first respondent rendered an arbitral award ordering the applicant to pay the outstanding US$30,000 plus interest, and ordering the second respondent to transfer ownership of the vehicle upon payment. The applicant sought to set aside the arbitral award, alleging that he was denied the opportunity to lead oral and/or expert evidence before the arbitrator.

• Whether the arbitral procedure violated the agreement of the parties by not allowing oral and/or expert evidence to be led
• Whether the arbitral award should be set aside under Article 34(2) of the Arbitration Act [Cap 7:15]
• Whether a statement by an arbitrator indicating he might need to hear oral evidence constitutes an agreement between parties to lead such evidence

The application to set aside the arbitral award was dismissed with costs.

An arbitral award can only be set aside under Article 34(2) of the Arbitration Act [Cap 7:15] where there is proof that the arbitral procedure was not in accordance with the agreement of the parties. An arbitrator's indication that oral or expert evidence might be required does not constitute an agreement between the parties to lead such evidence. Where neither party objects to the arbitrator's stated intention to proceed on the basis of written submissions, and the applicant fails to specify what oral or expert evidence would have been led and how it would have affected the outcome, no ground exists for setting aside the award on procedural grounds.

The court noted that the applicant had not stated in his founding affidavit the nature of the oral or expert evidence he intended to lead or how such evidence would have changed the result. This observation suggests that even if there had been some procedural irregularity, the applicant would need to demonstrate materiality - that the evidence would have made a difference to the outcome.

This case clarifies the threshold for setting aside arbitral awards under Article 34(2) of the Arbitration Act in Zimbabwe. It establishes that a mere indication by an arbitrator that oral or expert evidence might be needed does not constitute an agreement between parties to lead such evidence. The case reinforces the principle of limited judicial intervention in arbitration proceedings and the need for parties seeking to set aside awards to demonstrate actual violations of agreed procedures, not merely potential procedures that were contemplated but not insisted upon.