Netone Cellular (Private) Limited v Lazarus Muchenje

The applicant (Netone Cellular) and respondent (Lazarus Muchenje) were former employer and employee. A dispute arose regarding a property at 14 Fairfield Close, Greystone Park in relation to a lease agreement dated 16 May 2019. In a previous judgment (Mushure J in HCH 2013/23), the court granted an order staying proceedings in terms of Article 8(1) of the Model Law and referred the dispute to arbitration in terms of clause 15 of the lease agreement between the parties. The arbitration clause in the lease agreement was silent on the procedure for appointing an arbitrator. Following the judgment, the applicant's legal practitioners attempted to reach agreement with the respondent's legal practitioners on appointing an arbitrator, but the parties could not agree. The applicant then contacted the Commercial Arbitration Centre (CAC) for assistance, but CAC responded that it required a court order to appoint an arbitrator. The applicant then brought this application seeking an order compelling the court to authorize CAC to appoint an arbitrator.

• Whether there was material non-joinder of the CAC as a party to the application
• Whether the court could or should mandate the CAC to appoint an arbitrator
• Whether the court could be compelled to authorize a third party (CAC) to appoint an arbitrator rather than the court directly appointing an arbitrator itself
• The proper interpretation and application of Article 11(3) and 11(4) of the Arbitration Act [Chapter 7:15]

The application was dismissed with costs on the ordinary scale to be paid by the applicant.

Where an arbitration agreement is silent on the procedure for appointing an arbitrator and parties have failed to agree on such procedure, Article 11(3)(b) of the Arbitration Act empowers the High Court to appoint an arbitrator upon request of a party. However, the court cannot be compelled to delegate or authorize a third party institution (such as the Commercial Arbitration Centre) to exercise the court's statutory power to appoint an arbitrator. The court must exercise its own authority directly, although it may consider suggestions as to appropriate arbitrators. An application seeking to compel the court to clothe a third party with authority to appoint an arbitrator is improperly formulated and will be dismissed.

The court made several obiter observations: (1) It noted that the respondent's submission that the arbitration clause was unenforceable and that the matter should be dealt with in a labour forum was "misguided" given the extant court order referring the dispute to arbitration. (2) The court observed that the respondent's contention about previous denial of the lease by the applicant and the existence of other labour disputes were irrelevant to the present application. (3) The court commented that the respondent's suggestion that the applicant should provide 'proof' of authorization to bring the proceedings was "curious" and a "bare assertion" that was not supportable. (4) The court expressed its initial hope that parties could agree on an arbitrator, noting that "there is little love lost between them" when they failed to do so. (5) The court clarified that the reason for dismissing the application was not that the dispute should not go to arbitration, but rather the improper formulation of the relief sought.

This case clarifies the procedure for appointing arbitrators under the Zimbabwean Arbitration Act [Chapter 7:15] when parties have failed to agree on an appointment procedure. It establishes that while courts have wide discretion under Article 11(4) to take "necessary measures" to facilitate arbitration, a court cannot be compelled to delegate its statutory authority to appoint an arbitrator to a third party institution like the Commercial Arbitration Centre. The case emphasizes that applicants must properly formulate their relief sought and cannot seek orders that effectively usurp the court's direct authority. It also provides guidance on the distinction between cases where parties have agreed on an appointment procedure (but failed to implement it) versus cases where the arbitration agreement is entirely silent on appointment procedures.