NetOne Cellular (Private) Limited v Lazarus Muchenje

1



                                                                             HH- 720-25

                                                                             HCH
2608/25



NETONE CELLULAR (PRIVATE) LIMITED

Versus

LAZARUS MUCHENJE



HIGH COURT OF ZIMBABWE

CHIRAWU-MUGOMBA J

Harare, 13, 29, 31 October and 12 November 2025



B. DIZA, for the applicant

V. MHUNGU, for the respondent



COURT APPLICATION

Introduction

      CHIRAWU-MUGOMBA J: This matter was placed before me ostensibly as one for

the appointment of an arbitrator in terms of the Arbitration Act, [Chapter 7:15],

hereinafter ‘the act’, particularly s11(3)(b). Upon perusal, and having noted that the

applicant’s legal practitioners had made certain proposals to the respondent’s legal

practitioners, I formulated an initial view that the parties could agree on who to

appoint as arbitrator. I implored the parties at the hearing to find each other and

briefly adjourned the proceedings. Alas, they could not agree and it seems there is little

love lost between them. As a result, I proceeded to hear the matter on the merits.

The application

          The background to this matter is well captured in the judgment of Mushure J

under HCH 2013/23. Suffice to state that the applicant and the respondent are former

employer and employee. A dispute arose regarding a property called, 14 Fairfield
                                            2



Close, Greystone Park, ‘the property’. This was in relation to a lease agreement. The

court gave an order staying the proceedings in terms of Article 8 (1)of the Model law.

Further, the dispute was referred to arbitration in terms of the lease agreement

between the parties dated the 16th of May 2019. It is common cause that the court’s

decision was not appealed against. It is also common cause that the arbitration clause

in the lease agreement, being s15 is silent on the procedure of appointment of an

arbitrator. Following the judgment, the applicant’s legal practitioners reached out to

the respondent’s legal practitioners for purposes of reaching an agreement. However,

this came to naught. The applicant’s legal practitioners then contacted the Commercial

Arbitration Centre (CAC) for assistance in the appointment of an arbitrator. The

response filed of record states that CAC requires a court order. The applicant thus

seeks an order for the court to appoint CAC as the authority to appoint an arbitrator as

follows,

   1. Application to have the Commercial Arbitration Centre appointed as the

       authority to appoint an arbitrator to deal with the dispute between the parties

       be and is hereby granted.

   2. The Commercial Arbitration Centre shall within one calendar month from the

       granting of the order appoint an arbitrator to deal with the dispute between the

       parties.

   3. There be no order as to costs provided that the applicant is not opposed. In the

       event of opposition, the opposing party is to pay costs on a legal practitioner to

       client scale.

The opposition

     The application is strenuously opposed by the respondent. He raises the following

preliminary issues. (1) That there is material non-joinder of the CAC and (2) he curiously

submits that the applicant should produce ‘proof’ that it is authorised to act given the

nature of the clearly defective legal proceedings. On the merits he makes averments

that there is a pending labour dispute and that the applicant has previously disowned

the lease agreement. Further that the CAC did respond to the request for the
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appointment of an arbitrator and stated that this could only be done with the consent

of both parties. He also avers that there is no arbitration clause in the lease agreement

and hence the clause is unenforceable. He makes reference to an unfinished labour

dispute process.

Answering affidavit

    Save for disputing the preliminary issues raised by the respondent and making

reference to an email from CAC, nothing much turns on the answering affidavit.

HEADS OF ARGUMENT AND SUBMISSIONS

Applicant

The applicant for the preliminary issues places reliance on R 32(11) of the rules on non-

joinder- see also Sithole and ors vs. estate late Farida Hettena and ors,    HH-409- 23.

Further that the respondent is estopped from denying referral of the matter to

arbitration- Kashiri vs. Muvirimi, 1998(1) ZLR 270 (SC).

Respondent

The matter is characterised by material non-joinder – see Rodger and ors vs Muller and

anor, 2010(1) ZLR 270 (SC). Further that the application is not supported by Article 11 of

the act. It is reiterated that the arbitration clause is not enforceable and a suggestion

that it be referred to the labour adjudicating forum be done.

The legal issues arising

   It is not in dispute that there is an extant court order referring the dispute over the

lease to arbitration. It is not in dispute that clause 15 of the lease agreement is silent

on the procedure of appointing an arbitrator. The parties have failed to agree on the

procedure of appointment. Let me hasten to state that the submission by the

respondent that the arbitration clause is unenforceable and that the matter should be

dealt with in the labour forum is misguided. And so too are the contentions of previous

denial of the lease by the applicant in another forum and that there is still a labour

dispute between the parties. The contention that the applicant should provide ‘proof’
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that this application is supported as I have stated is a curious one. The respondent

seems to suggest that perhaps he possesses some information that the applicant did

not authorise the filing of the proceedings. The bare assertion is not supportable. The

legal issues that arise in my view are the following.

   a. Is there material non-joinder of the CAC?

   b. Should the court mandate the CAC to appoint an arbitrator?

The law on joinder has been set in a plethora of cases. The relevant rule is found in

R32(1)(b) which reads as follows,

       “At any stage of the proceedings in any case or matter the court may on such terms as it thinks
       just and either on its own initiative or on application-
       (a) ……

               Order any person who ought to have been joined as a party or whose presence before

               the court is necessary to ensure that all matters in dispute in the cause or matter may be

               effectually and completely determined and adjudicated upon, to be added as a party.”


Although case law mostly relates to a party that actually applies to be joined, in my

view it equally applies where an issue is raised that a certain party should be joined to

the proceedings. The party to be joined must have a legal and direct interest in the

matter – see MBCA Bank Limited v The Reserve Bank of Zimbabwe & Anor HH 482/15.

This of necessity demands an examination of the legal and direct interest and

reflecting on whether or not a matter can be regarded as complete with or

without the party that applies to be joined or is proposed to be joined. The

rules also have a provision for non-joinder as follows in R32(11).

       “(11) No cause or matter shall be defeated by reason of misjoinder or non-joinder of any party and
       the court may in any cause or matter determine the issues or questions in dispute so far as they
       affect the rights and interests of people who are parties to the cause or matter.”

In, Harare Sports Club vs. Zimbabwe Cricket and anor, HH-741-17, the court had

occasion to deal with the appointment of an arbitrator. In that matter, the lease

agreement had a provision to the effect that an arbitrator had to be mutually

agreed to but was silent as to what would happen if there was no agreement.

As it turned out, the parties were not in agreement and the applicant
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approached the court seeking an order for the second respondent to be

authorised to appoint an arbitrator. The respondent submitted in limine that,

“the court did not have the power to authorise the second respondent to

appoint an arbitrator who would preside over the parties’ contractual issues”.

It was held in that matter as follows,
                           “Whether or not the court has the power to authorise the second respondent
       to appoint an arbitrator for the parties’ case does, in a large measure, depend on the
       interpretation which must be placed on the applicable law. Article 11 of the Act makes reference
       to the Appointment of Arbitrators. It read, in part, as follows:
                “(1) ………

                  (2) The parties are free to agree on a procedure of appointing the arbitrator or
       arbitrators,     subject to the provisions of paragraphs (4) and (5) of this article.

                 (3) Failing such agreement-
                (a) in an arbitration with three arbitrators each party shall appoint one arbitrator, and
                the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to
                appoint the arbitrator …. or if two arbitrators fail to agree on the third arbitrator …. the
                appointment shall be made, upon request of a party, by the High Court;
                (b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the
       arbitrator, he shall be appointed, upon request of a party, by the High Court. [emphasis added].

              4. Where, under an appointment procedure agreed upon by the parties
                 (a) a party fails to act as required under such procedure; or
              (b) …… or
              (c) …..;
              any party may request the High Court to take the necessary measure unless the
       agreement on the appointment procedure provides other means for securing the appointment.
       [emphasis        added]

                A reading of the above cited Article shows that the court can only properly act under
       section 3 (a) and (b) of the Act. It can do so at the request of the aggrieved party.
                The parties’ case falls under s 4 of Article 11 of the Model Law. They agreed on an
       appointment procedure. They incorporated their position in this regard in the lease. The first
       respondent failed to act under the procedure which the parties defined for themselves. The court
       cannot appoint an arbitrator for them. It, in any event, was not requested to do so.
                What the applicant moved the court to do was to take the necessary measure. The court
       has the power to take that necessary measure”.
APPLICATION OF THE LAW TO THE FACTS

Is there material non-joinder of the CAC?

           The respondent raised the preliminary point that the CAC should have been

joined as a party to the action. In my view, this point has no merit. It is common cause

that the lease agreement is between the applicant and the respondent and that the

joinder of the CAC is neither here nor there. I also note that CAC when it was engaged,
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expressed the view that they required a court order to be able to act. In any event

R32(11) is clear that non-joinder does not defeat a case. As stated, the court has

already given an extant order that the dispute over the lease should go for arbitration.

What only remains is how the arbitrator will be selected.

Should the court mandate the CAC to appoint an arbitrator?

At the hearing, I enquired from the legal practitioners on the number of arbitrators to

be appointed and they both submitted that there should be two. The important factor

to note is that the parties are not agreed even as to who should be appointed as a sole

arbitrator. Both sections In Article 11(3) (a) and (b) envisage a request being made by a

party for the High Court to appoint an arbitrator. I did not read the application to refer

to the appointment of more than one arbitrator and hence in my view, the court is

being requested to appoint one arbitrator.

          The million -dollar question then becomes this? Can the court appoint an

arbitrator through a procedure as suggested by the applicant? In the draft order, the

applicant seeks to compel the court to give power or authority to the CAC to appoint an

arbitrator. In the Harare Sports Club matter, the court placed emphasis on the phrase, “

necessary measure” that appears in Article 11 (4). The distinguishing factor with that

matter and in casu is that in the former, parties had agreed on the manner of

appointment but the dispute arose as to the process of who to mutually agree on apart

also from the contention that no dispute was in existence. In casu, there is no need for

an analysis of whether or not a dispute has arisen due to the extant court order

referring the lease agreement dispute to arbitration. The lease itself is silent on the

procedure. In my view, there is merit in the submissions by Mr. Mhungu that the

applicant cannot usurp the authority of the court and compel it to cloth the CAC with

authority to select an arbitrator. It could have been presented as a suggestion to the

court that in exercising its authority, it should consider the CAC. Whilst this court has

wide discretion, I believe that if it grants the order as presently sought, this is not

warranted. In any event, the Supreme Court has cautioned judicial officers from

granting orders that have not been sought – see Nzara and ors vs Kashumba NO and
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ors, 2018 (1) ZLR 194(S). As rightly submitted by Mr. Mhungu, the gist of the application

is to compel the court to authorise the CAC to appoint an arbitrator.

DISPOSITION

It is trite that costs are at the discretion of the court. I do not perceive anything as to

warrant costs on a higher scale. Unless the order referring the dispute over the lease

agreement is set aside, it has to be decided through arbitration. The reason why the

court has dismissed the application is not that the dispute ought not to go for

arbitration but that this court cannot be compelled to appoint an arbitrator through

the process as proposed by the applicant.




Accordingly, it is ordered as follows:

   1. The application be and is hereby dismissed.

   2. The applicant shall pay costs on the ordinary scale.



Diza Attorneys, applicant’s legal practitioners

Chasi. Maguwudze Legal Practice, respondent’s legal practitioners