Africa-Press – Zimbabwe. POWERTEL Communications has successfully filed an application seeking to appoint an arbitrator in its dispute with Dandemutande Investments after the termination of an internet supply agreement.
Powertel had approached the High Court seeking an order to appoint an arbitrator to preside over the dispute with Dandemutande following their failure to agree on the appointment.
According to court papers, in 2010, the parties entered into an Internet Capacity Purchase Agreement and sometime in 2017, a dispute arose between the parties, emanating from Powertel’s decision to terminate the agreement.
In 2018, the parties agreed to appoint retired judge Justice Vernanda Ziyambi as the arbitrator to preside over the dispute with Dandemutande as the claimant.
However, the arbitration process did not materialise as Dandemutande failed to file its claim.
In 2019, the arbitrator communicated to the parties, indicating that it had been over a year since documents were to be filed, adding that the impression was that the matter had been abandoned.
Justice Ziyambi then indicated that she would be unavailable due to other engagements.
In 2023, Powertel sought appointment of a new arbitrator from the Commercial Arbitration Centre and with one Whatman being appointed.
Dandemutande objected to this appointment, arguing that Powertel had violated clause 27 of their agreement by unilaterally seeking the appointment of the arbitrator.
Whatman upheld the objection, and a final award was issued by consent, terminating those proceedings on the basis that the matter was not properly before the arbitrator.
Powertel argued that the parties failed to reach a consensus, necessitating a court application.
However, Dandemutande argued that Powertel’s claim was a debt and that, in terms of the Prescription Act, that claim had prescribed because more than three years had elapsed from the time the parties failed to agree on an arbitrator, the application was filed in 2024.
In response, Powertel argued that a preliminary point can only be raised before an arbitrator seized with the main dispute between the parties.
It also argued that the court had not filed its claim against Dandemutande, but was seeking recourse in terms of Article 11(4) of the Arbitration Act.
Powertel’s claim against Dandemutande, which is the basis of the dispute between them, concerns the alleged failure by Dandemutande to settle a debt due in terms of an agreement.
Justice Maxwell Takuva said the court was not seized with that particular claim or the dispute between the parties, but the appointment of an arbitrator to preside over their dispute.
The judge said a preliminary point of law was one that, if properly taken in an application or action, is capable of disposing of a matter without the need for the court to delve into the merits of the matter.
Powertel had sought the appointment of a sole arbitrator by the court on the recommendation of the chairman of the Commercial Arbitration Centre in Harare.
Dandemutande, however, contended that such a procedure deprives it of an opportunity to challenge the credentials of the arbitrator.
It argued that, therefore, the relief sought is not competent because it arrogates powers to recommend an arbitrator to the Commercial Arbitration Centre, violating the procedure laid down by statute.
In response, Powertel submitted that the mentioning of the Commercial Arbitration Centre in the draft order was just a recommendation and not a directive to the court.
The judge said the Commercial Arbitration Centre was a recognised dispute resolution institution in Zimbabwe, offering arbitration and other alternative dispute resolution services.
The judge said that did not prejudice Dandemutande in any way because Powertel did not propose a specific arbitrator.
“In any event, as already indicated, the court retains the discretion on who to appoint as the arbitrator. It is important to highlight that such discretion is exercised judiciously, paying attention to the qualifications, impartiality and independence of the arbitrator.
“The court also considers the non-appealability of its decision in such situations as indicated by article 11(5) of the Act. Hence, there being no prejudice to the respondent, the preliminary point lacks merit,” Justice Takuva said.
He said the provision entailed that any dispute arising between the parties about their agreement should be presided over by three arbitrators.
“Each party appoints one arbitrator and the two arbitrators appointed by the parties shall then jointly select a third arbitrator. That third arbitrator will be the chairman of the arbitration tribunal to preside over the dispute.
“If the two arbitrators appointed by the parties fail to agree on a third arbitrator, such third arbitrator will be appointed by the chairman of the Commercial Arbitration Centre in Harare.
“Therefore, for a three-panel arbitration tribunal to ensue, both parties should have co-operated in appointing the first two arbitrators.”
Justice Takuva dismissed Dandemutande’s preliminary points and granted the application for the appointment of the arbitrator.
The court ordered the chairman of the Arbitration Centre in Harare to appoint a suitable arbitrator to preside over the parties’ dispute.
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