NetOne Cellular (Private) Limited VS Lazarus Muchenje

### Preamble
1
HH- 720-25
HCH 2608/25
NETONE CELLULAR (PRIVATE) LIMITED
Versus
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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 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 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’ 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 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) .....
(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, 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 anarbitrator. 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 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*
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