Pomelo Mining (Pvt) Ltd v Annandale Trust and Addington Bexley Chikomborero Chinake N.O

The applicant (Pomelo Mining) and the first respondent (Annandale Trust) were involved in a dispute referred to arbitration in terms of their agreement. The second respondent was appointed as arbitrator by the Chairman of the Commercial Arbitration Centre. The applicant objected to this appointment, preferring a retired judge. At a pre-arbitration hearing on 10 May 2018, the applicant raised preliminary objections regarding the appointment and alleged likelihood of bias by the second respondent. These objections were dismissed. On 29 May 2018, the applicant filed an application under Article 13(3) of the Arbitration Act seeking recusal of the second respondent. The second respondent gave directives for the matter to proceed. On 13 June 2018, the first respondent requested the matter be set down for continuation. On 28 June 2018, the second respondent served notice that the matter would continue on 3 July 2018. On 29 June 2018, the applicant filed this urgent application seeking a stay of arbitration proceedings pending determination of the Article 13(3) application.

• Whether the application met the formal requirements for urgent chamber applications under the High Court Civil Rules
• Whether the applicant had 'dirty hands' due to non-compliance with arbitrator's directives
• Whether the matter constituted a genuine urgent application warranting immediate attention
• Whether the applicant acted when the need to act arose
• Whether the applicant would suffer irreparable harm if the relief was not granted immediately
• Whether there were alternative remedies available to the applicant

The matter was struck off the roll of urgent matters.

For an urgent application to stay arbitration proceedings to succeed: (1) the applicant must act when the need to act arose, not wait until imminent harm materializes; (2) where an arbitrator dismisses preliminary objections and gives directives for a matter to proceed, and a party files an Article 13(3) application challenging the arbitrator, that party must simultaneously seek a stay of proceedings if desired - they cannot wait until a hearing date is set; (3) irreparable harm cannot be established where the applicant has an alternative remedy available, such as challenging an arbitral award under Article 34 of the Arbitration Act on the same grounds raised in the Article 13(3) application; (4) Article 13(3) of the Arbitration Act does not automatically operate as a stay of arbitration proceedings - the arbitrator has discretion to continue with proceedings while a challenge is pending before the High Court.

The court observed that quasi-judicial proceedings should be allowed to take their course so that matters may reach their logical conclusion. Applications upon applications can only achieve delay in the disposal of the main matter on the merits, yet the tenets of justice require that matters be disposed of on the merits. This reflects judicial policy against using procedural applications as dilatory tactics to prevent arbitration from proceeding expeditiously.

This case is significant for establishing principles regarding urgency in applications to stay arbitration proceedings in Zimbabwe. It clarifies that: (1) an application under Article 13(3) of the Arbitration Act does not automatically stay arbitration proceedings - the arbitrator retains discretion to continue; (2) parties must act timeously when the need arises and cannot wait until the eve of the arbitration hearing to seek a stay; (3) the availability of alternative remedies (such as challenging an arbitral award under Article 34) negates claims of irreparable harm; and (4) courts will not entertain dilatory tactics that prevent quasi-judicial proceedings from reaching their logical conclusion on the merits. The judgment reinforces the policy of allowing arbitration proceedings to continue expeditiously without unnecessary court interference.