Kiscut Investments (Private) Limited and Christina Dumba v Old Mutual Property Investments Corporation (Private) Limited and Honourable Arbitrator David Whatman N.O

The applicants (Kiscut Investments and Christina Dumba) leased Shop 62, Ground Floor, Highglen Shopping Centre, Willowvale, Harare from the first respondent (Old Mutual Property Investments Corporation). A dispute arose over unpaid rent. The first respondent claimed cancellation of the lease, eviction, unpaid rentals of US$6,567.19 and US$4,593.87, plus costs. The applicant claimed the lease was obtained through misrepresentation regarding a 100% occupancy rate condition precedent, that rental had been reduced to US$50.00 per month on 8 October 2014, and that all arrears had been cleared by end of June 2015. The parties went to arbitration before the second respondent, Arbitrator David Whatman. On 26 August 2015, the arbitrator made an award in favor of the first respondent, confirming cancellation of the lease, ordering eviction within 10 days, and ordering payment of US$9,180.68 in unpaid rentals and operating costs, plus holding over damages of US$599.88 per month from 1 April 2015 until vacation, with interest at 14.25% per annum compounded monthly, and costs on a legal practitioner-client scale. The applicants then applied on 2 September 2015 to set aside the arbitral award. The first respondent applied on 11 September 2015 to register the award as an order of court. Both matters were consolidated by consent on 26 May 2016.

• Whether the applicants were given proper notice of the arbitral proceedings in terms of Article 34(2)(a)(ii) of the Arbitration Act
• Whether the applicants were given a full opportunity to present their case in terms of Article 18 of the Arbitration Act
• Whether there was a breach of the rules of natural justice in connection with the making of the award
• Whether the award is in conflict with the public policy of Zimbabwe in terms of Article 34(2)(b)(ii) of the Arbitration Act
• Whether the arbitral award should be set aside
• Whether the arbitral award should be registered as an order of the High Court

1. The application to set aside the arbitral award is dismissed. 2. The award made by the second respondent on 26 August 2015 is registered as an order of the High Court. 3. The applicants shall pay costs in respect of the consolidated matters HC 8318/15 and HC 8682/15.

An arbitral award will not be set aside on the ground that a party was not given proper notice of the arbitral proceedings where the evidence shows that the party was in fact notified of the hearing date through correspondence, knew of the scheduled hearing, and chose not to attend. Proper notice does not require any particular formality where parties have been engaging through their legal practitioners and are aware of the scheduled hearing date. A party that has been given the opportunity to be heard but chooses not to attend cannot successfully claim a breach of natural justice or violation of Article 34(2)(a)(ii) of the Arbitration Act. Applications to set aside arbitral awards are not appeals or reviews and courts may only interfere where the specific grounds set out in Article 34 of the Arbitration Act are established. Article 18 of the Arbitration Act requires that parties be treated with equality and given a full opportunity to present their case, but this does not mean a party can unilaterally refuse to attend a properly scheduled hearing.

The court observed that settlement negotiations between parties do not suspend or supersede scheduled arbitral proceedings unless the arbitrator agrees to a further postponement. A typographical error in an email (referring to 18 August instead of 25 August) does not constitute improper notice where the context makes clear what the correct date is and all parties understood the actual hearing date. The court noted that the applicants had indicated they were not opposed to any date after 24 August 2015, which supported the conclusion that they were aware of and agreed to the 25 August 2015 hearing date. The judgment implicitly supports the principle of finality in arbitration by requiring clear statutory grounds before interfering with arbitral awards.

This case clarifies the application of Article 34 of the Arbitration Act [Chapter 7:15] in Zimbabwe, particularly regarding the grounds for setting aside an arbitral award. It confirms that applications to set aside arbitral awards are neither appeals nor reviews and courts will only interfere where specific statutory grounds exist. The judgment reinforces the importance of proper notice in arbitral proceedings and the requirement to give parties a full opportunity to present their case under Article 18 of the Act. It establishes that where parties are properly notified of a hearing date through correspondence and choose not to attend, this does not constitute a breach of natural justice or public policy. The case demonstrates judicial deference to arbitral processes and awards, consistent with the pro-arbitration policy underlying modern arbitration legislation. It also illustrates the procedure for registration of arbitral awards as court orders and the consolidation of related proceedings (setting aside and registration applications).