THE High Court has dismissed an application by the Zimbabwe National Water Authority (Zinwa) to bar an arbitrator roped into a case where the authority is accused of refusing to pay a service provider.
Zinwa had approached the High Court seeking an order setting aside the arbitrator's ruling citing Pellavin Marketing and arbitrator Tecla Mapota as the first and second respondents, respectively.
Mapota issued an adverse ruling against Zinwa in May this year.
However, Zinwa approached the High Court arguing that Mapota had no jurisdiction to hear the dispute.
According to court papers, sometime in January 2022, Zinwa and Pellavin Marketing engaged in a business transaction for the supply of branding services.
The terms of their agreement were reduced to writing and the agreement contained an arbitration clause.
Pellavin Marketing signed the agreement on June 26, 2022 and transmitted it to Zinwa for signing but the document was never returned.
Pellavin Marketing claimed that it rendered services to Zinwa on the strength of the unsigned agreement and sought payment.
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When it became clear that Zinwa was not willing to pay for the services rendered, the matter was referred for arbitration.
Zinwa raised a preliminary point that the arbitrator did not have jurisdiction to hear the matter.
Mapota ruled that she had jurisdiction to hear the matter, adding that Zinwa had waived its right to file any further submissions on the preliminary point.
She also concluded that it was common cause that there was an agreement between the parties and found that the relationship between the parties was based on the unsigned agreement.
Aggrieved by the arbitrator’s decision, Zinwa approached the court for an order to set aside Mapota's ruling arguing before High Court judge Justice Faith Mushure that Mapota erred at law in dismissing the challenge to her jurisdiction.
Zinwa also confirmed that there was a written agreement between the parties.
The authority further argued that the parties were still in negotiations and had not finalised the terms of the agreement.
Pellavin Marketing, however, argued that there was a valid agreement between the parties, adding that certain services were rendered in terms of the agreement.
It also supported Mapota's findings that Zinwa waived its right to reply to its opposition to the preliminary objection.
ln analysing the matter, Justice Mushure said Mapota's finding could not be faulted saying the proceedings before her showed that Zinwa did not deny that the contract contained an arbitration clause.
“However, the surrounding circumstances, including prior dealings between the parties concerned, may give rise to the prima facie presumption that the terms and conditions embodied in an unsigned agreement represent the true intention of the parties.
“The absence of a party’s signature on a contract does not per se invalidate a contract, neither does it automatically lead to a conclusion that no contract was concluded.”
The court also ruled that the argument that the contract was only signed by the respondent did not find support in the law.
Justice Mushure said Zinwa accepted that some services were rendered, adding that there was no merit in the argument that the parties were still negotiating the contract.
“The decision of Mapota cannot, by any stretch of imagination, be said to be in violation of the public policy of Zimbabwe. Her reasoning cannot be faulted.
“The fact that the applicant does not agree with her reasoning does not give the ruling the complexion of a decision that is contrary to public policy,” the judge ruled.
He ordered Zinwa to pay costs for the trial.
