Reformed Church in Zimbabwe v Fransisca Zinyemba

On 17 July 2017, Fransisca Zinyemba (Zinyemba) sold a property at 204 Enterprise Road, The Grange, Harare, to the Reformed Church in Zimbabwe (RCZ) for US$180,000. The agreement of sale contained an arbitration clause and specified 204 Enterprise Road as Zinyemba's address for service. A dispute arose and RCZ referred the matter to arbitration. Zinyemba did not participate in the arbitral proceedings. On 16 April 2018, arbitrator M.L. Mhishi made an award in favour of RCZ ordering transfer of the property. RCZ then applied to register the arbitral award (HCH 4615/18), while Zinyemba simultaneously applied to set aside the same award (HCH 5135/18), claiming she was not properly notified of the appointment of the arbitrator or the arbitral proceedings.

• Whether Zinyemba was given proper notice of the appointment of the arbitrator
• Whether Zinyemba was given proper notice of the arbitral proceedings
• Whether Zinyemba was unable to present her case at the arbitration
• Whether the arbitral award should be set aside under Article 36 of the Model Law in the Arbitration Act [Chapter 7:15]
• Whether service at the chosen domicilium citandi et executandi constituted valid notice
• Whether the arbitral award should be registered as an order of the High Court

In HCH 4615/18: (1) Application granted; (2) The arbitral award of 16 April 2018 registered as an order of the High Court; (3) Respondent to pass transfer of the property to Applicant; (4) Sheriff authorized to sign transfer documents if Respondent fails to comply within 10 days; (5) Applicant to tender purchase price of US$160,000 through mortgage bond and US$20,000 by bank transfer; (6) Respondent to pay Applicant US$712.81 being her share of arbitrator's costs; (7) Sheriff to serve order at 204 Enterprise Road; (8) Respondent to pay costs of suit. In HCH 5135/18: (1) Application dismissed; (2) Applicant to pay Respondent's costs of suit.

Service of notice of arbitral proceedings effected at a party's contractually chosen domicilium citandi et executandi constitutes proper notice under Article 36(1)(a)(ii) of the Model Law in the Arbitration Act, provided such service complies with the terms of the agreement between the parties. Where an agreement contains a 'whole agreement' clause requiring written notification of any change of address for service, failure to provide such notification means the original chosen address remains valid for service. A party who has been properly notified of arbitral proceedings but chooses not to participate cannot claim they were 'unable to present their case' as grounds for setting aside an arbitral award under Article 36 of the Model Law. Service by the Sheriff in accordance with contractual provisions, including service by affixing documents after a diligent search, constitutes valid service.

The court referenced South African authorities (Lindup v Lowe 1935 NPD 189, Balston v Van Zyl 1946 NPD 561, Spenser v Du Toit 1942(2) PH F66 (0) and Thesen's Steamship Co Ltd v Heitmann 1949(2) SA 799 (SWA)) to support the principle that service at a chosen address for service is good service, indicating the persuasive value of South African jurisprudence on this point in Zimbabwean law. The court noted the unusual timing of Tinotenda Zinyemba's letter (dated 17 April 2018, the day after the award was made), requesting a two-week hiatus, which ironically served as evidence of awareness of the proceedings.

This case is significant in Zimbabwean arbitration law as it clarifies the requirements for proper notice under Articles 3 and 36 of the Model Law in the Arbitration Act [Chapter 7:15]. It establishes that service at a contractually chosen domicilium citandi et executandi constitutes valid notice of arbitral proceedings, even where the party does not personally receive the documents. The judgment reinforces the principle that parties are bound by their contractual choice of address for service and cannot later claim improper notice when service was effected at that address in accordance with the agreement. It also demonstrates that a party's choice not to participate in arbitration proceedings, when properly notified, does not constitute grounds for setting aside an arbitral award on the basis of being 'unable to present' their case.