EVER PROSPEROUS WORLDWIDE LTD v XTENDA FINANCIAL HOLDINGS LTD and Others (5 of 2025) [2025] ZWHHC 5 (6 January 2025)

Ever Prosperous Worldwide Ltd v Xtenda Financial Holdings Ltd & Ors 17 HH 05-25 HCHC 524-24 EVER PROSPEROUS WORLDWIDE LTD versus XTENDA FINANCIAL HOLDINGS LTD and FRANCIS DZANYA and BEKITHEMBA MOYO and BINDZILE MUNATSI [In her capacity as Executrix of Estate Late Douglas Munatsi] and REGIS CHAWATAMA N.O. HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION MAFUSIRE J HARARE Date of hearing: 19 November 2024 Date of judgment: 6 January 2025 Opposed application T.W. Nyamakura, for the applicant T. Zhuwarara, for respondents 1 to 4 No appearance for fifth respondent MAFUSIRE J [a] Introduction [1] The applicant and respondents 1 to 4 are engaged in litigation in different fora and platforms over certain indebtedness by the respondents to the applicant. Some aspects of the dispute have been determined at arbitration. Two arbitrators, ex-judge Mr Francis Bere and Mr Regis Chawatama, the fifth respondent herein, have, one after the other, rendered ‘determinations’, on some aspects of the dispute. [2] The reference to ‘determination’ instead of ‘award’ or ‘ruling’ is deliberate. Among the several issues seriously in contention in the present matter is the character or nature of the Chawatama ‘determination’ [henceforth “the Chawatama determination”]. The respondents contend that it was a ‘ruling’ and not an ‘award’ and that as such, it is not capable of being set aside in the manner the applicant has purported to do. On the other hand, the applicant contends that the Chawatama determination was an ‘award’ or a ‘final award’ which is capable of being set aside in the manner sought. [3] The applicant seeks two substantive orders. The one is to set aside the Chawatama determination in terms of Art 34 of the Arbitration Act [Chapter 7:15]. The other is to direct Mr Chawatama to proceed to determine all the issues placed by the parties before him. The applicant seeks costs on an attorney and client scale. Verbatim, the applicant’s draft order reads: “1. The application is hereby granted. 2. The Arbitral Award in the dispute between the Applicant and the 1st to 4th Respondents issued by Honourable Arbitrator Regis Chawatama dated 15th April 2024 be and is hereby set aside. 3. The proceedings before Honourable Arbitrator Regis Chawatama to proceed and is hereby directed to determine all the issues placed by the parties for determination. 4. The 1st to 4th Respondents shall bear the costs of this application on an attorney client scale if they oppose it.” [4] The applicant seeks the setting aside of the Chawatama determination on the basis that it is in conflict with the public policy of Zimbabwe in that the making of the award was induced by fraud and that the audi alteram partem rule of natural justice was violated. [5] Counsel for respondents 1 to 4 has raised two preliminary objections. The one is that [in my own paraphrase] this court lacks the requisite jurisdiction to interfere in any way with the Chawatama determination since what the applicant seeks to do is to invoke a specific and special type of the court’s statutory jurisdiction, as opposed to its general mandate under Art 34. This specific type of jurisdiction relates to the power or capacity of the court to interfere with arbitral rulings as opposed to its power or capacity to interfere with arbitral awards. [6] The respondents elaborate on their first preliminary objection as follows. On the authority of the Supreme Court case of RioZim Ltd & Anor v Maranatha Ferrochrome [Pvt] Ltd SC 30-22, Art 34 of the Arbitration Act provides for the setting aside of arbitral awards. It does not provide for the setting aside of arbitral rulings. The Chawatama determination was an arbitral ruling, not an arbitral award. This court has no jurisdiction over rulings except as provided for under Art 16. [7] The second preliminary objection by the respondents is that, again in paraphrase, this court cannot relate to the present application because of its prolixity. It is an incredible 424 pages long. The applicant has deliberately thrown in irrelevant matter to confuse. For this reason, the applicant must not be heard on the merits. [8] The matter is convoluted. The dispute between the parties has mutated into several facets. It is full of intrigue. It is an epic task to give a narrative that is concise and coherent. [9] The correct characterization of the Chawatama determination has huge legal implications. Details over the parties’ arguments on this issue and several others emerge later. Here is the narrative, but severely truncated. [b] Background facts [10] Before Mr Chawatama, the applicant claimed payment of a certain sum of money against the respondents, jointly and severally. It also claimed, among other things, the right to special execution of certain items of collateral security the respondents had pledged. For the moment, the details are not important. [11] The respondents objected to the applicant’s claim before Mr Chawatama on the basis that the underlying agreement of loan between the applicant and the first respondent was illegal in terms of Zimbabwean law in that, inter alia, the applicant, a peregrinus, was conducting banking business in violation of the Zimbabwe law. It was also the respondent’s objection that the applicant’s claim included a charge on interest, something which allegedly is unlawful in terms of Zimbabwean law. Incidentally, the first respondent is also a peregrinus. [12] With regards to the claim for the special execution of the items pledged as security for the debt, the respondents’ objection before Mr Chawatama was that the applicant had gained access to such items by unlawful means and was therefore disentitled to levy special execution on them. [13] In a nutshell, that was the dispute Mr Chawatama was set to determine. He never got to do it. There was some intriguing intervention. It was this. During the course of the arbitration, there was a fall out between the applicant and its erstwhile counsel, one Mr Method Ndlovu. Apparently driven by this fall out, Mr Ndlovu wrote to the arbitrator on 26 January 2024, at the same time copying the mail to, among others, the respondents’ legal practitioner. He advised that he was no longer representing the applicant but that he was in possession of certain information which, ethically, he felt obliged to disclose. The information was about certain payments and the determination by Mr Bere [henceforth “the Bere determination”]. Mr Ndlovu sought special audience over this aspect. [14] The applicant objected to Mr Ndlovu’s conduct. At the same time it submitted a copy of the Bere award to Mr Chawatama. In response, Mr Chawatama, mero motu, called for a case management meeting with the parties. He felt that some aspects of the Bere award had determined the issues before him, a position readily endorsed by the respondents. At the case management meeting, Mr Chawatama directed that the respondents should lodge before him a formal application to terminate the proceedings. The respondents obliged. [15] Amid spirited objections, endless counter objections and repeated rejoinders, Mr Chawatama eventually determined that the matter before him was res judicata as it was essentially the same dispute Mr Bere before him had adjudicated upon. As such, he concluded, he was precluded by operation of the law to proceed with the arbitration. He wrote a detailed judgment. [16] The circumstances surrounding the Bere determination were also nothing short of intrigue. The applicant had been the claimant. Only the first respondent had been the other party. Respondents 2 to 4 were not. In the main, the applicant claimed the delivery to it of certain items of security as had been promised in the loan agreement between the applicant and the first respondent and which were still outstanding. In the alternative, the applicant claimed payment of a certain sum of money. [17] In August 2022, in the middle of the arbitration proceedings, the first respondent demanded Mr Bere’s recusal on the basis of some alleged conflict of interest. They went on to file a formal application before him for his recusal. However, despite Mr Bere arranging a special hearing over this particular aspect, the first respondent did not pursue it. [18] But on 5 September 2022 the first respondent went on to file an urgent chamber application before this court for Mr Bere’s recusal. Again they did not pursue it. They subsequently withdrew the application altogether. [19] Mr Bere rendered his award on 12 September 2022. Granting the main claim by the applicant, he directed that the respondents should deliver the outstanding items of security within thirty [30] days failing which the respondents would have to pay back the loan amounts. [20] At least by May 2023 both parties had become aware of the existence of the Bere award even though none of them collected their copies immediately. The applicant made disclosure of the existence of the Bere award in its Statement of Claim before Mr Chawatama dated 16 May 2023. [21] Further, by November 2023 the first respondent had definitely become aware that the Bere award had been in favour of the applicant. One of its panel of legal practitioners, Mangezi, Nleya & Partners, wrote to the applicant’s legal practitioners on 17 November 2023, among other things, imploring the applicant to desist from proceeding with execution of the Bere award. The applicant gave no such undertaking. [22] On 15 March 2024 the first respondent applied to this court for the setting aside of the Bere award on the basis that it was in conflict with the public policy of Zimbabwe, allegedly in that the making of the award had violated the audi alteram partem rule of natural justice and that the dispute had been incapable of settlement by arbitration. This application was made exactly one month and six days after the application before Mr Chawatama for the termination of the proceedings on the basis of the same Bere award. [23] The application to set aside the Bere award was served on the applicant’s legal practitioners, Atherstone & Cook. They reacted by informing the respondent’s legal practitioners that their mandate had since been terminated and that therefore they could not accept service of process on behalf of the applicant. They suggested that the application be served on the applicant directly. They also required that their communication in this regard be uploaded on the Integrated Electronic Case Management System [IECMS] that is operative in the Commercial Division of the High Court. However, this was not done. [24] The application to set aside the Bere award was granted with costs by this court on 11 April 2024, per CHILIMBE J, in default of appearance by the applicant. [25] After the setting aside of the Bere award as aforesaid, the respondents failed or neglected to inform Mr Chawatama of the fact. Apparently oblivious of the fact that the Bere award was no longer extant, Mr Chawatama went on to render his determination, terminating the arbitration proceedings before him on the basis, as aforesaid, that the subject matter of the dispute before him was res judicata on account of the existence of the Bere award. [26] From around 16 April 2024 the applicant made a series of communication with Mr Chawatama, copying the respondents’ legal practitioners in the process. Among other things, the applicant informed the arbitrator of the setting aside of the Bere award by this court on 11 April 2024. It went to allege that the respondents’ legal practitioners had cheated him by concealing that information and allowing him to terminate the proceedings before him on the basis of a Bere award which was no longer in existence. [27] However, Mr Chawatama expressed regret that he could not assist any longer as he had become functus officio. On their part, the respondents’ legal practitioners denied any wrong doing, but declined to wade into the merits of the applicant’s complaint. Evidently feeling blocked on all fronts, the applicant turned to this court and filed the present application. [c] Ruling on respondents’ preliminary objections [i] Jurisdiction of the court [28] In response to the objection by respondents’ counsel that this court lacks the requisite jurisdiction to interfere with the Chawatama determination on account of the fact that that determination was a ruling, and not an award, allegedly as set out in the Supreme Court case of RioZim above, applicant’s counsel has argued, as I have understood him, that the Chawatama determination was an award, not a mere ruling. It terminated the proceedings completely. It brought the arbitration to a definite end. Rulings are motivated in terms of Art 16 of the Arbitration Act. The Chawatama determination was not motivated in terms of Art 16. It was made in terms of Art 32. As such, it is one to which Art 34 of the Act applies. The RioZim case does not apply. [29] I note that Art 16 of the Arbitration Act, paraphrased, empowers an arbitral tribunal to rule on, inter alia, the question of its own jurisdiction. It may make such a ruling either as a preliminary point, or in its award on the merits. If it rules on such a question as a preliminary point, any party may, within thirty [30] days of receipt of the ruling, request this court to decide the matter. [30] Art 32 of the Arbitration Act reads: “Termination of proceedings [1] The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph [2] of this article. [2] The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when— (a) the claimant withdraws his claim, unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute; (b) the parties agree on the termination of the proceedings; (c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible. [3] The mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to the provisions of articles 33 and 34 [4].” [31] Here now is my ruling on respondent’s counsel’s first objection on jurisdiction. [32] The termination of the arbitration proceedings before Mr Chawatama was neither motivated by any party, nor motivated in terms of the Arbitration Act. It was made at the instance of the arbitrator, after he had convinced himself that the previous Bere award had dealt with the same issues as had subsequently been placed before him. Mr Chawatama had then invited the respondents to make a formal application for the termination of the proceedings. [33] When they got down to applying for the termination of the proceedings in response to Mr Chawatama’s invitation as aforesaid, the respondents did not proceed in terms of the Arbitration Act. They proceeded on the basis of the common law principle of res judicata. It was only in quashing the applicant’s numerous objections on the procedure being adopted that Mr Chawatama, with no suggestion or motivation by the respondents, intimated that the request to terminate the proceedings was being made in terms of Art 32[1] as read with 32 [2][c] of the Arbitration Act. He expressly and firmly rejected the notion that the termination was being motivated in terms of Art 16 of the Arbitration Act. [34] Thus, it is not correct for Mr Zhuwarara, for the respondents, to insist that the Chawatama determination was a ruling made in terms of Art 16 of the Arbitration Act. According to the arbitrator himself, he proceeded in terms of Art 32 of the Act. Therefore, according to Mr Zhuwarara’s own logic, if it is Art 16 that gives birth to rulings, then the Chawatama determination was not a ruling. It was either a final award in terms of Art 32[1], or an order in terms of Art 32[1] as read with 32 [2][c]. [35] I disagree with Mr Zhuwarara on the meaning, effect and import of the Supreme Court case of RioZim above. One aspect of the dichotomy that the Arbitration Act is, which the appellate court clarified in its judgment, is that arbitral rulings such as are made in terms of Art 16 of the Act, are distinct from the various other types of arbitral awards such as are made in terms of the other provisions of the Act, like Art 31, Art 32, Art 33, Art 34, and so on. [36] The Supreme Court went further to state that the term ‘award’ in Art 34 is used in its generic sense. It does not exclude the other types of awards such as final awards, interlocutory or interim awards, additional awards, corrected awards, interpreted awards, and so on, all of which must be accorded their appropriate status. Art 34 provides for the setting aside of awards. It does not provide for the setting aside of rulings. The word ‘award’ having been used in its generic sense, accommodates the setting aside of all other awards specified in the Act. [37] Plainly, the Rio Zim case above is an authority at war with the respondents’ contention herein. The termination of the proceedings before Mr Chawatama, not having been birthed in terms of Art 16 of the Arbitration Act, or any other provision of that Act, but the arbitrator himself having specified that he was proceeding in terms of Art 32, the applicant having invoked this court’s jurisdiction under Art 34 to which Art 32 is applicable and is subservient to, this court can safely exercise that jurisdiction and interfere with the Chawatama determination. The respondents’ first objection has no merit and is hereby dismissed. [ii] Prolixity of application [38] Manifestly, the application is longwinded. It lacks focus. It is cumbersome. It was drafted without regard to brevity and concision. With attachments, but excluding the heads of argument, the application is a whopping 429 pages long. [39] The respondents’ complaint in this regard has merit. But it is a question of the kettle calling the pot black. The respondents aren’t any saints themselves. Their notice of opposition and attachments, but excluding the heads of argument, is a competitive 239 pages long. [40] What particularly stands out in the notice of opposition, as an example of the lack of discipline in the preparation of court documents, is the fact that quite a number of documents attached to the application are also duplicated, sometimes triplicated and even quadruplicated in the notice of opposition. Furthermore, lengthy and numerous Supreme Court judgments are attached and duplicated just to prove some manifestly innocuous point, probably only relevant at arbitration, namely that Advocate Lewis Uriri had accepted a certain mandate in the arbitration process in circumstances in which he ought to have declined for reason of a conflict of interest. [41] I shall not be detained by the respondents’ second objection, save to reject the suggestion that by reason of it the applicant has become non-suited. Whilst it is certainly a great deal of pain and inconvenience for the court to have to wade through the morass of unprocessed matter in order to extract the facta probanda and the real issue for determination, in the present matter I shall pay a blind eye to that infraction because of the complexity of the dispute between the parties. At any rate, the respondents have made no proper application to have any matter expunged from the record or struck out. Thus, the respondents’ second preliminary objection is also dismissed for lack of merit and sincerity. [d] Ruling on the merits [42] Art 34 of the Arbitration Act permits the setting aside of arbitral awards on a number of grounds, including a proven contravention of the public policy of Zimbabwe. The intrinsic provision in this regard reads, unwanted detail having been excluded: “[2] An arbitral award may be set aside by the High Court only if— (a) …. …. …. (b) the High Court finds, that— …. …. …. (ii) the award is in conflict with the public policy of Zimbabwe. [3] …. …. …. [4] …. …. …. [5] For the avoidance of doubt, and without limiting the generality of paragraph (2) (b) (ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if— (a) the making of the award was induced or effected by fraud or corruption; or (b) a breach of the rules of natural justice occurred in connection with the making of the award.” [43] What an applicant needs to prove in order to succeed under Art 34 of the Act is now an overploughed field. There is abundant case authority. But it is always good housekeeping to lay down the test as a guide or compass to the adjudication process. [44] Art 34 and Art 36 of the Arbitration Act are interpreted restrictively. The locus classicus on the meaning of an arbitral award being in conflict with the public policy of Zimbabwe and the approach of the courts is ZESA v Maposa 1999 (2) ZLR 452 (S) The appellate court, per GUBBAY CJ, laid down the test as follows, at p 466E – G: “An award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or law. In such a situation the court will not be justified in setting the award aside. Under article 34 or 36, the court does not exercise an appeal and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it. The same consequences apply where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.” [45] Put in another way, for an award to be said to be contrary to the public policy of Zimbabwe, it must ‘shock the conscience’ or ‘is clearly injurious to the public good or [is] wholly offensive to the ordinary reasonable and fully informed member of the public’: see the judgment of the Singapore Court of Appeal in PT Asuransi Jasa Indonesia [Persero] v Dexia Bank SA [2007] 1 SLR(R) 597, at para 59. Only in the most glaring instances of illogicality, injustice or moral turpitude will the court invoke the power to set aside an arbitral award: Peruke Investments [Pvt] Ltd v Willoughby’s Investments [Pvt] Ltd & Anor 2015 [1] ZLR 491 [S], at 499H – 500A. [46] In this matter I am satisfied that the application meets the test. It alleges that Mr Chawatama was “cheated” into terminating the proceedings before him on the basis of a previous award that was no longer extant. Mr Zhuwarara submits that the fact that the Bere award was no longer extant by the time of the Chawatama determination does not matter because the mere existence of that award at the commencement of the Chawatama proceedings disarmed him of the requisite jurisdiction to sit in judgment over the same dispute. [47] I disagree with Mr Zhuwarara for a number of reasons. Arbitration is a voluntary and private dispute resolution mechanism chosen by the parties. It is an alternative process to the determination of disputes through the State courts. The parties formulate the nature and extent of their differences. They chose their own judge. They lay down the rules of procedure. They agree on the terms of reference for the judge. They pay the judge. Everything is governed largely by the private bilateral agreement: see Zimbabwe Educational, Scientific, Social and Cultural Workers’ Union v Welfare Educational Institutions’ Employers’ Association 2013 [1] ZLR 187 [S], Alliance Insurance v Imperial Plastics [Pvt] Ltd & Anor SC 30-17 and [1] Harare Sports Club v Zimbabwe Cricket [2] Zimbabwe Cricket v Harare Sports Club & Anor 2019 [2] ZLR 421 [H] at p 428E – F. [48] No appeal lies against the decision of the arbitrator. The rationale for this was aptly summarised in the 19th century English case of Holmes Oil Co v Pumpherston Oil Co (1891) 28 SLR 940; [1891] UKHL 940, where the court, per LORD HALSBURY LC, said: “Now, one of the advantages that people are supposed to get by reference to arbitration is the finality of the proceedings when the arbitrator has once stated his determination. They sacrifice something for that advantage – they sacrifice the power to appeal. If, in their judgment, the particular judge whom they have selected as gone wrong in point of law or in point of fact, they have no longer the same wide power to appeal which an ordinary citizen prosecuting his remedy in the courts of law possess, but they sacrifice that advantage in order to obtain a final decision between the parties. It is well-settled law therefore, that when they have agreed to refer their difficulties to arbitration, as they have here, you cannot set aside the award simply because you think it is wrong.” [49] The above remarks are quite relevant in this case. When the parties approached Mr Chawatama for arbitration over their dispute, among other things, they were both aware of the existence of the Bere award. Yet despite that knowledge they opted for another determination before another arbitrator. [50] Tellingly, in his judgment terminating the proceedings, Mr Chawatama blames both parties for the assurance that they had given him over the Bere proceedings upon his enquiry whether or not they were not the same as those before him. The parties had both agreed that the Bere award had no bearing on the proceedings before him. They had both urged him to proceed. [51] The respondents allege that to all intents and purposes both parties had abandoned the Bere award. However, that is not borne out by the record. On the contrary, the respondents have complained in some aspects of the matter that the applicant was bent on executing the Bere award. [52] What is critical is that the parties had agreed to arbitration before Mr Chawatama in spite of the existence or otherwise of the Bere award. What shocks the conscience or the public good is not that Mr Chawatama decided to terminate the proceedings before him mero motu, which he may have been entitled to do, but the fact that, plainly, he formulated some kind of cause of action for the respondents and simply asked them to endorse it. When they did, they feigned ignorance of the existence of the Bere award, whose existence had been brought to their attention almost a year before. That is not all. [53] In my judgment, the respondents were bent on having their cake and eating it. In one moment, they were applying for the termination of the Chawatama proceedings on the basis of the existence of the Bere award. In another, exactly one month and six days later, they were applying to this court for the setting aside of the same Bere award. [54] I consider that res judicata was plainly not applicable as a basis for Mr Chawatama to terminate the proceedings before him. To begin with, the parties before him were different from the parties before Mr Bere in that, respondents 2 to 4 had not been parties before Mr Bere. Even the cause of action could not be said to have been the same. [55] In his judgment, Mr Chawatama held that the contractual relationship between the applicant and respondents 2 to 4 was ancillary or secondary to the contractual relationship between the applicant and the first respondent and that, as such, the principle of res judicata applied to them as well. [56] I consider that Mr Chawatama’s determination went beyond ‘mere faultiness or incorrectness’. It constitutes ‘a palpable inequity that is so far reaching and outrageous in its defiance of logic’: see ZESA v Maposa above. Before him, the applicant was proceeding against respondents 2 to 4 as sureties or guarantors who, among other things, had waived the benefits of the several legal exceptions, including de duobus vel pluribus reis debendi and ordinis seu excussionis et divisionis. [57] Thus, on the face of it, the applicant was entitled to proceed against one or other or all of the guarantors without first having had to exhaust its rights against the principal debtor, the first respondent. At the very least, this was part of the dispute Mr Chawatama had been mandated to determine. But by terminating the proceedings in the manner he did, he left the applicant with no recourse against respondents 2 to 4 who were not part of the Bere determination. [58] In fact, by terminating the proceedings before him in the way he did and in circumstances in which the Bere award was no longer in existence, Mr Chawatama left the applicant with no recourse against anyone at all. This is outrageous given that the respondents, by their own admissions, owe the applicant several millions of dollars in foreign currency. No court of justice can countenance that. The applicant is justified in its complaint, among others, that the Chawatama determination breached one of our fundamental rules of natural justice, audi alteram partem: hear the other side. A very serious decision was taken against the applicant without its dispute against respondents 2 to 4 being heard. [59] The circumstances surrounding the setting aside of the Bere award by this court justifies interference on the grounds of public policy. Apart from the fact that the respondents neglected or failed to inform Mr Chawatama that the ground for the termination of the proceedings before him had fallen away, there is evidence on record to conclude that the respondents’ legal practitioners had snatched a judgment. [60] When the respondents’ legal practitioner of record, Mr B. Mataruka, appeared before CHILIMBE J on 11 April 2024 to move for the setting aside of the Bere award in the absence of the applicant, not only was he aware that the applicant’s erstwhile legal practitioners had declined to accept service of process on the ground that their agency had been terminated, but also that he had been implored to inform the court of this fact. [61] Whether he liked it or not, Mr Mataruka was ethically bound, as an officer of the court, to make such a disclosure to the presiding judge. Mr Zhuwarara dismisses the applicant’s complaint in this regard on the basis that the applicant is free to apply for the rescission of the order by CHILIMBE J. This is rather unfortunate. Why the applicant has not applied for rescission of judgment is not an issue before me. However, whatever the applicant’s reasons for not taking this step is no excuse for the apparent breach of ethics by Mr Mataruka. [e] Disposition [62] I find that the termination of the arbitration proceedings before Mr Chawatama violated the public policy of Zimbabwe in the sense contemplated by Art 34[2][b][ii], as read with 34[5] of the Arbitration Act. As such it is liable to be set aside. [63] Mr Zhuwarara argues that even if I set aside the Chawatama determination, it is incompetent for the court to refer the same proceedings to the same Mr Chawatama with a directive that he must determine all the issues as prayed for in para 3 of the applicant’s draft order. [64] Sight must not be lost that arbitration is a party-driven process. As I said above, the parties choose their own judge. These ones had chosen Mr Chawatama. Unfortunately, he decided to prematurely terminate his mandate in circumstances in which this court has held that the decision was in breach of the public policy of Zimbabwe. [65] If a party does not want to submit before a particular arbitrator, and or if the selected arbitrator declines the mandate conferred upon him, it cannot be the function of this court to impose that person as the arbitrator for the parties. What is important though is that the applicant’s right to have the dispute adjudicated in terms of the parties’ original agreement is respected and enforced. The matter must go back to arbitration in terms of the original agreement. It is up to the parties to agree on the choice of the arbitrator, failing which they are entitled to assert their rights in terms of the law. [f] Costs [66] The applicant seeks costs on an attorney and client scale. How and why such costs are sometimes awarded by the court is also an over ploughed field. There is an avalanche of cases on the point. In the present case, I am satisfied that the cumulative conduct of the respondents, either themselves personally or through their legal practitioner of record, justifies a penal order of costs. [67] I am particularly concerned by the conduct of the respondent’s legal practitioner of record, Mr Mataruka, as displayed in the papers. No matter how strongly they feel about the merits of their clients’ case, legal practitioners must at all times maintain a dispassionate engagement so as to be able to effectively discharge their duties as officers of the court. A failure to do so may sometimes attract an adverse order of costs in their personal capacities. The dignity of the court must always be maintained. [68] However, in the final result the following orders are hereby made: i/ The arbitral award or order by Mr Regis Chawatama on 15 April 2024 in the dispute between the applicant and the first to fourth respondents is hereby set aside. ii/ The dispute between the parties is hereby referred for determination by arbitration. The arbitrator shall determine all the issues placed before him or her by the parties. iii/ The costs of this application shall be borne by the first to fourth respondents on an attorney and client scale, jointly and severally, the one paying the others to be absolved. 6 January 2025 Atherstone & Cook, applicant’s legal practitioners Gill, Godlonton & Gerrans, legal practitioners for respondents 1 to 4 Ever Prosperous Worldwide Ltd v Xtenda Financial Holdings Ltd & Ors 17 HH 05-25 HCHC 524-24 Ever Prosperous Worldwide Ltd v Xtenda Financial Holdings Ltd & Ors 17 HH 05-25 HCHC 524-24 EVER PROSPEROUS WORLDWIDE LTD versus XTENDA FINANCIAL HOLDINGS LTD and FRANCIS DZANYA and BEKITHEMBA MOYO and BINDZILE MUNATSI [In her capacity as Executrix of Estate Late Douglas Munatsi] and REGIS CHAWATAMA N.O. HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION MAFUSIRE J HARARE Date of hearing: 19 November 2024 Date of judgment: 6 January 2025 Opposed application T.W. Nyamakura, for the applicant T. Zhuwarara, for respondents 1 to 4 No appearance for fifth respondent MAFUSIRE J [a] Introduction [1] The applicant and respondents 1 to 4 are engaged in litigation in different fora and platforms over certain indebtedness by the respondents to the applicant. Some aspects of the dispute have been determined at arbitration. Two arbitrators, ex-judge Mr Francis Bere and Mr Regis Chawatama, the fifth respondent herein, have, one after the other, rendered ‘determinations’, on some aspects of the dispute. [2] The reference to ‘determination’ instead of ‘award’ or ‘ruling’ is deliberate. Among the several issues seriously in contention in the present matter is the character or nature of the Chawatama ‘determination’ [henceforth “the Chawatama determination”]. The respondents contend that it was a ‘ruling’ and not an ‘award’ and that as such, it is not capable of being set aside in the manner the applicant has purported to do. On the other hand, the applicant contends that the Chawatama determination was an ‘award’ or a ‘final award’ which is capable of being set aside in the manner sought. [3] The applicant seeks two substantive orders. The one is to set aside the Chawatama determination in terms of Art 34 of the Arbitration Act [Chapter 7:15]. The other is to direct Mr Chawatama to proceed to determine all the issues placed by the parties before him. The applicant seeks costs on an attorney and client scale. Verbatim, the applicant’s draft order reads: “1. The application is hereby granted. 2. The Arbitral Award in the dispute between the Applicant and the 1st to 4th Respondents issued by Honourable Arbitrator Regis Chawatama dated 15th April 2024 be and is hereby set aside. 3. The proceedings before Honourable Arbitrator Regis Chawatama to proceed and is hereby directed to determine all the issues placed by the parties for determination. 4. The 1st to 4th Respondents shall bear the costs of this application on an attorney client scale if they oppose it.” [4] The applicant seeks the setting aside of the Chawatama determination on the basis that it is in conflict with the public policy of Zimbabwe in that the making of the award was induced by fraud and that the audi alteram partem rule of natural justice was violated. [5] Counsel for respondents 1 to 4 has raised two preliminary objections. The one is that [in my own paraphrase] this court lacks the requisite jurisdiction to interfere in any way with the Chawatama determination since what the applicant seeks to do is to invoke a specific and special type of the court’s statutory jurisdiction, as opposed to its general mandate under Art 34. This specific type of jurisdiction relates to the power or capacity of the court to interfere with arbitral rulings as opposed to its power or capacity to interfere with arbitral awards. [6] The respondents elaborate on their first preliminary objection as follows. On the authority of the Supreme Court case of RioZim Ltd & Anor v Maranatha Ferrochrome [Pvt] Ltd SC 30-22, Art 34 of the Arbitration Act provides for the setting aside of arbitral awards. It does not provide for the setting aside of arbitral rulings. The Chawatama determination was an arbitral ruling, not an arbitral award. This court has no jurisdiction over rulings except as provided for under Art 16. [7] The second preliminary objection by the respondents is that, again in paraphrase, this court cannot relate to the present application because of its prolixity. It is an incredible 424 pages long. The applicant has deliberately thrown in irrelevant matter to confuse. For this reason, the applicant must not be heard on the merits. [8] The matter is convoluted. The dispute between the parties has mutated into several facets. It is full of intrigue. It is an epic task to give a narrative that is concise and coherent. [9] The correct characterization of the Chawatama determination has huge legal implications. Details over the parties’ arguments on this issue and several others emerge later. Here is the narrative, but severely truncated. [b] Background facts [10] Before Mr Chawatama, the applicant claimed payment of a certain sum of money against the respondents, jointly and severally. It also claimed, among other things, the right to special execution of certain items of collateral security the respondents had pledged. For the moment, the details are not important. [11] The respondents objected to the applicant’s claim before Mr Chawatama on the basis that the underlying agreement of loan between the applicant and the first respondent was illegal in terms of Zimbabwean law in that, inter alia, the applicant, a peregrinus, was conducting banking business in violation of the Zimbabwe law. It was also the respondent’s objection that the applicant’s claim included a charge on interest, something which allegedly is unlawful in terms of Zimbabwean law. Incidentally, the first respondent is also a peregrinus. [12] With regards to the claim for the special execution of the items pledged as security for the debt, the respondents’ objection before Mr Chawatama was that the applicant had gained access to such items by unlawful means and was therefore disentitled to levy special execution on them. [13] In a nutshell, that was the dispute Mr Chawatama was set to determine. He never got to do it. There was some intriguing intervention. It was this. During the course of the arbitration, there was a fall out between the applicant and its erstwhile counsel, one Mr Method Ndlovu. Apparently driven by this fall out, Mr Ndlovu wrote to the arbitrator on 26 January 2024, at the same time copying the mail to, among others, the respondents’ legal practitioner. He advised that he was no longer representing the applicant but that he was in possession of certain information which, ethically, he felt obliged to disclose. The information was about certain payments and the determination by Mr Bere [henceforth “the Bere determination”]. Mr Ndlovu sought special audience over this aspect. [14] The applicant objected to Mr Ndlovu’s conduct. At the same time it submitted a copy of the Bere award to Mr Chawatama. In response, Mr Chawatama, mero motu, called for a case management meeting with the parties. He felt that some aspects of the Bere award had determined the issues before him, a position readily endorsed by the respondents. At the case management meeting, Mr Chawatama directed that the respondents should lodge before him a formal application to terminate the proceedings. The respondents obliged. [15] Amid spirited objections, endless counter objections and repeated rejoinders, Mr Chawatama eventually determined that the matter before him was res judicata as it was essentially the same dispute Mr Bere before him had adjudicated upon. As such, he concluded, he was precluded by operation of the law to proceed with the arbitration. He wrote a detailed judgment. [16] The circumstances surrounding the Bere determination were also nothing short of intrigue. The applicant had been the claimant. Only the first respondent had been the other party. Respondents 2 to 4 were not. In the main, the applicant claimed the delivery to it of certain items of security as had been promised in the loan agreement between the applicant and the first respondent and which were still outstanding. In the alternative, the applicant claimed payment of a certain sum of money. [17] In August 2022, in the middle of the arbitration proceedings, the first respondent demanded Mr Bere’s recusal on the basis of some alleged conflict of interest. They went on to file a formal application before him for his recusal. However, despite Mr Bere arranging a special hearing over this particular aspect, the first respondent did not pursue it. [18] But on 5 September 2022 the first respondent went on to file an urgent chamber application before this court for Mr Bere’s recusal. Again they did not pursue it. They subsequently withdrew the application altogether. [19] Mr Bere rendered his award on 12 September 2022. Granting the main claim by the applicant, he directed that the respondents should deliver the outstanding items of security within thirty [30] days failing which the respondents would have to pay back the loan amounts. [20] At least by May 2023 both parties had become aware of the existence of the Bere award even though none of them collected their copies immediately. The applicant made disclosure of the existence of the Bere award in its Statement of Claim before Mr Chawatama dated 16 May 2023. [21] Further, by November 2023 the first respondent had definitely become aware that the Bere award had been in favour of the applicant. One of its panel of legal practitioners, Mangezi, Nleya & Partners, wrote to the applicant’s legal practitioners on 17 November 2023, among other things, imploring the applicant to desist from proceeding with execution of the Bere award. The applicant gave no such undertaking. [22] On 15 March 2024 the first respondent applied to this court for the setting aside of the Bere award on the basis that it was in conflict with the public policy of Zimbabwe, allegedly in that the making of the award had violated the audi alteram partem rule of natural justice and that the dispute had been incapable of settlement by arbitration. This application was made exactly one month and six days after the application before Mr Chawatama for the termination of the proceedings on the basis of the same Bere award. [23] The application to set aside the Bere award was served on the applicant’s legal practitioners, Atherstone & Cook. They reacted by informing the respondent’s legal practitioners that their mandate had since been terminated and that therefore they could not accept service of process on behalf of the applicant. They suggested that the application be served on the applicant directly. They also required that their communication in this regard be uploaded on the Integrated Electronic Case Management System [IECMS] that is operative in the Commercial Division of the High Court. However, this was not done. [24] The application to set aside the Bere award was granted with costs by this court on 11 April 2024, per CHILIMBE J, in default of appearance by the applicant. [25] After the setting aside of the Bere award as aforesaid, the respondents failed or neglected to inform Mr Chawatama of the fact. Apparently oblivious of the fact that the Bere award was no longer extant, Mr Chawatama went on to render his determination, terminating the arbitration proceedings before him on the basis, as aforesaid, that the subject matter of the dispute before him was res judicata on account of the existence of the Bere award. [26] From around 16 April 2024 the applicant made a series of communication with Mr Chawatama, copying the respondents’ legal practitioners in the process. Among other things, the applicant informed the arbitrator of the setting aside of the Bere award by this court on 11 April 2024. It went to allege that the respondents’ legal practitioners had cheated him by concealing that information and allowing him to terminate the proceedings before him on the basis of a Bere award which was no longer in existence. [27] However, Mr Chawatama expressed regret that he could not assist any longer as he had become functus officio. On their part, the respondents’ legal practitioners denied any wrong doing, but declined to wade into the merits of the applicant’s complaint. Evidently feeling blocked on all fronts, the applicant turned to this court and filed the present application. [c] Ruling on respondents’ preliminary objections [i] Jurisdiction of the court [28] In response to the objection by respondents’ counsel that this court lacks the requisite jurisdiction to interfere with the Chawatama determination on account of the fact that that determination was a ruling, and not an award, allegedly as set out in the Supreme Court case of RioZim above, applicant’s counsel has argued, as I have understood him, that the Chawatama determination was an award, not a mere ruling. It terminated the proceedings completely. It brought the arbitration to a definite end. Rulings are motivated in terms of Art 16 of the Arbitration Act. The Chawatama determination was not motivated in terms of Art 16. It was made in terms of Art 32. As such, it is one to which Art 34 of the Act applies. The RioZim case does not apply. [29] I note that Art 16 of the Arbitration Act, paraphrased, empowers an arbitral tribunal to rule on, inter alia, the question of its own jurisdiction. It may make such a ruling either as a preliminary point, or in its award on the merits. If it rules on such a question as a preliminary point, any party may, within thirty [30] days of receipt of the ruling, request this court to decide the matter. [30] Art 32 of the Arbitration Act reads: “Termination of proceedings [1] The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph [2] of this article. [2] The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when— (a) the claimant withdraws his claim, unless the respondent objects thereto and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute; (b) the parties agree on the termination of the proceedings; (c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible. [3] The mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to the provisions of articles 33 and 34 [4].” [31] Here now is my ruling on respondent’s counsel’s first objection on jurisdiction. [32] The termination of the arbitration proceedings before Mr Chawatama was neither motivated by any party, nor motivated in terms of the Arbitration Act. It was made at the instance of the arbitrator, after he had convinced himself that the previous Bere award had dealt with the same issues as had subsequently been placed before him. Mr Chawatama had then invited the respondents to make a formal application for the termination of the proceedings. [33] When they got down to applying for the termination of the proceedings in response to Mr Chawatama’s invitation as aforesaid, the respondents did not proceed in terms of the Arbitration Act. They proceeded on the basis of the common law principle of res judicata. It was only in quashing the applicant’s numerous objections on the procedure being adopted that Mr Chawatama, with no suggestion or motivation by the respondents, intimated that the request to terminate the proceedings was being made in terms of Art 32[1] as read with 32 [2][c] of the Arbitration Act. He expressly and firmly rejected the notion that the termination was being motivated in terms of Art 16 of the Arbitration Act. [34] Thus, it is not correct for Mr Zhuwarara, for the respondents, to insist that the Chawatama determination was a ruling made in terms of Art 16 of the Arbitration Act. According to the arbitrator himself, he proceeded in terms of Art 32 of the Act. Therefore, according to Mr Zhuwarara’s own logic, if it is Art 16 that gives birth to rulings, then the Chawatama determination was not a ruling. It was either a final award in terms of Art 32[1], or an order in terms of Art 32[1] as read with 32 [2][c]. [35] I disagree with Mr Zhuwarara on the meaning, effect and import of the Supreme Court case of RioZim above. One aspect of the dichotomy that the Arbitration Act is, which the appellate court clarified in its judgment, is that arbitral rulings such as are made in terms of Art 16 of the Act, are distinct from the various other types of arbitral awards such as are made in terms of the other provisions of the Act, like Art 31, Art 32, Art 33, Art 34, and so on. [36] The Supreme Court went further to state that the term ‘award’ in Art 34 is used in its generic sense. It does not exclude the other types of awards such as final awards, interlocutory or interim awards, additional awards, corrected awards, interpreted awards, and so on, all of which must be accorded their appropriate status. Art 34 provides for the setting aside of awards. It does not provide for the setting aside of rulings. The word ‘award’ having been used in its generic sense, accommodates the setting aside of all other awards specified in the Act. [37] Plainly, the Rio Zim case above is an authority at war with the respondents’ contention herein. The termination of the proceedings before Mr Chawatama, not having been birthed in terms of Art 16 of the Arbitration Act, or any other provision of that Act, but the arbitrator himself having specified that he was proceeding in terms of Art 32, the applicant having invoked this court’s jurisdiction under Art 34 to which Art 32 is applicable and is subservient to, this court can safely exercise that jurisdiction and interfere with the Chawatama determination. The respondents’ first objection has no merit and is hereby dismissed. [ii] Prolixity of application [38] Manifestly, the application is longwinded. It lacks focus. It is cumbersome. It was drafted without regard to brevity and concision. With attachments, but excluding the heads of argument, the application is a whopping 429 pages long. [39] The respondents’ complaint in this regard has merit. But it is a question of the kettle calling the pot black. The respondents aren’t any saints themselves. Their notice of opposition and attachments, but excluding the heads of argument, is a competitive 239 pages long. [40] What particularly stands out in the notice of opposition, as an example of the lack of discipline in the preparation of court documents, is the fact that quite a number of documents attached to the application are also duplicated, sometimes triplicated and even quadruplicated in the notice of opposition. Furthermore, lengthy and numerous Supreme Court judgments are attached and duplicated just to prove some manifestly innocuous point, probably only relevant at arbitration, namely that Advocate Lewis Uriri had accepted a certain mandate in the arbitration process in circumstances in which he ought to have declined for reason of a conflict of interest. [41] I shall not be detained by the respondents’ second objection, save to reject the suggestion that by reason of it the applicant has become non-suited. Whilst it is certainly a great deal of pain and inconvenience for the court to have to wade through the morass of unprocessed matter in order to extract the facta probanda and the real issue for determination, in the present matter I shall pay a blind eye to that infraction because of the complexity of the dispute between the parties. At any rate, the respondents have made no proper application to have any matter expunged from the record or struck out. Thus, the respondents’ second preliminary objection is also dismissed for lack of merit and sincerity. [d] Ruling on the merits [42] Art 34 of the Arbitration Act permits the setting aside of arbitral awards on a number of grounds, including a proven contravention of the public policy of Zimbabwe. The intrinsic provision in this regard reads, unwanted detail having been excluded: “[2] An arbitral award may be set aside by the High Court only if— (a) …. …. …. (b) the High Court finds, that— …. …. …. (ii) the award is in conflict with the public policy of Zimbabwe. [3] …. …. …. [4] …. …. …. [5] For the avoidance of doubt, and without limiting the generality of paragraph (2) (b) (ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if— (a) the making of the award was induced or effected by fraud or corruption; or (b) a breach of the rules of natural justice occurred in connection with the making of the award.” [43] What an applicant needs to prove in order to succeed under Art 34 of the Act is now an overploughed field. There is abundant case authority. But it is always good housekeeping to lay down the test as a guide or compass to the adjudication process. [44] Art 34 and Art 36 of the Arbitration Act are interpreted restrictively. The locus classicus on the meaning of an arbitral award being in conflict with the public policy of Zimbabwe and the approach of the courts is ZESA v Maposa 1999 (2) ZLR 452 (S) The appellate court, per GUBBAY CJ, laid down the test as follows, at p 466E – G: “An award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or law. In such a situation the court will not be justified in setting the award aside. Under article 34 or 36, the court does not exercise an appeal and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider the conception of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it. The same consequences apply where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.” [45] Put in another way, for an award to be said to be contrary to the public policy of Zimbabwe, it must ‘shock the conscience’ or ‘is clearly injurious to the public good or [is] wholly offensive to the ordinary reasonable and fully informed member of the public’: see the judgment of the Singapore Court of Appeal in PT Asuransi Jasa Indonesia [Persero] v Dexia Bank SA [2007] 1 SLR(R) 597, at para 59. Only in the most glaring instances of illogicality, injustice or moral turpitude will the court invoke the power to set aside an arbitral award: Peruke Investments [Pvt] Ltd v Willoughby’s Investments [Pvt] Ltd & Anor 2015 [1] ZLR 491 [S], at 499H – 500A. [46] In this matter I am satisfied that the application meets the test. It alleges that Mr Chawatama was “cheated” into terminating the proceedings before him on the basis of a previous award that was no longer extant. Mr Zhuwarara submits that the fact that the Bere award was no longer extant by the time of the Chawatama determination does not matter because the mere existence of that award at the commencement of the Chawatama proceedings disarmed him of the requisite jurisdiction to sit in judgment over the same dispute. [47] I disagree with Mr Zhuwarara for a number of reasons. Arbitration is a voluntary and private dispute resolution mechanism chosen by the parties. It is an alternative process to the determination of disputes through the State courts. The parties formulate the nature and extent of their differences. They chose their own judge. They lay down the rules of procedure. They agree on the terms of reference for the judge. They pay the judge. Everything is governed largely by the private bilateral agreement: see Zimbabwe Educational, Scientific, Social and Cultural Workers’ Union v Welfare Educational Institutions’ Employers’ Association 2013 [1] ZLR 187 [S], Alliance Insurance v Imperial Plastics [Pvt] Ltd & Anor SC 30-17 and [1] Harare Sports Club v Zimbabwe Cricket [2] Zimbabwe Cricket v Harare Sports Club & Anor 2019 [2] ZLR 421 [H] at p 428E – F. [48] No appeal lies against the decision of the arbitrator. The rationale for this was aptly summarised in the 19th century English case of Holmes Oil Co v Pumpherston Oil Co (1891) 28 SLR 940; [1891] UKHL 940, where the court, per LORD HALSBURY LC, said: “Now, one of the advantages that people are supposed to get by reference to arbitration is the finality of the proceedings when the arbitrator has once stated his determination. They sacrifice something for that advantage – they sacrifice the power to appeal. If, in their judgment, the particular judge whom they have selected as gone wrong in point of law or in point of fact, they have no longer the same wide power to appeal which an ordinary citizen prosecuting his remedy in the courts of law possess, but they sacrifice that advantage in order to obtain a final decision between the parties. It is well-settled law therefore, that when they have agreed to refer their difficulties to arbitration, as they have here, you cannot set aside the award simply because you think it is wrong.” [49] The above remarks are quite relevant in this case. When the parties approached Mr Chawatama for arbitration over their dispute, among other things, they were both aware of the existence of the Bere award. Yet despite that knowledge they opted for another determination before another arbitrator. [50] Tellingly, in his judgment terminating the proceedings, Mr Chawatama blames both parties for the assurance that they had given him over the Bere proceedings upon his enquiry whether or not they were not the same as those before him. The parties had both agreed that the Bere award had no bearing on the proceedings before him. They had both urged him to proceed. [51] The respondents allege that to all intents and purposes both parties had abandoned the Bere award. However, that is not borne out by the record. On the contrary, the respondents have complained in some aspects of the matter that the applicant was bent on executing the Bere award. [52] What is critical is that the parties had agreed to arbitration before Mr Chawatama in spite of the existence or otherwise of the Bere award. What shocks the conscience or the public good is not that Mr Chawatama decided to terminate the proceedings before him mero motu, which he may have been entitled to do, but the fact that, plainly, he formulated some kind of cause of action for the respondents and simply asked them to endorse it. When they did, they feigned ignorance of the existence of the Bere award, whose existence had been brought to their attention almost a year before. That is not all. [53] In my judgment, the respondents were bent on having their cake and eating it. In one moment, they were applying for the termination of the Chawatama proceedings on the basis of the existence of the Bere award. In another, exactly one month and six days later, they were applying to this court for the setting aside of the same Bere award. [54] I consider that res judicata was plainly not applicable as a basis for Mr Chawatama to terminate the proceedings before him. To begin with, the parties before him were different from the parties before Mr Bere in that, respondents 2 to 4 had not been parties before Mr Bere. Even the cause of action could not be said to have been the same. [55] In his judgment, Mr Chawatama held that the contractual relationship between the applicant and respondents 2 to 4 was ancillary or secondary to the contractual relationship between the applicant and the first respondent and that, as such, the principle of res judicata applied to them as well. [56] I consider that Mr Chawatama’s determination went beyond ‘mere faultiness or incorrectness’. It constitutes ‘a palpable inequity that is so far reaching and outrageous in its defiance of logic’: see ZESA v Maposa above. Before him, the applicant was proceeding against respondents 2 to 4 as sureties or guarantors who, among other things, had waived the benefits of the several legal exceptions, including de duobus vel pluribus reis debendi and ordinis seu excussionis et divisionis. [57] Thus, on the face of it, the applicant was entitled to proceed against one or other or all of the guarantors without first having had to exhaust its rights against the principal debtor, the first respondent. At the very least, this was part of the dispute Mr Chawatama had been mandated to determine. But by terminating the proceedings in the manner he did, he left the applicant with no recourse against respondents 2 to 4 who were not part of the Bere determination. [58] In fact, by terminating the proceedings before him in the way he did and in circumstances in which the Bere award was no longer in existence, Mr Chawatama left the applicant with no recourse against anyone at all. This is outrageous given that the respondents, by their own admissions, owe the applicant several millions of dollars in foreign currency. No court of justice can countenance that. The applicant is justified in its complaint, among others, that the Chawatama determination breached one of our fundamental rules of natural justice, audi alteram partem: hear the other side. A very serious decision was taken against the applicant without its dispute against respondents 2 to 4 being heard. [59] The circumstances surrounding the setting aside of the Bere award by this court justifies interference on the grounds of public policy. Apart from the fact that the respondents neglected or failed to inform Mr Chawatama that the ground for the termination of the proceedings before him had fallen away, there is evidence on record to conclude that the respondents’ legal practitioners had snatched a judgment. [60] When the respondents’ legal practitioner of record, Mr B. Mataruka, appeared before CHILIMBE J on 11 April 2024 to move for the setting aside of the Bere award in the absence of the applicant, not only was he aware that the applicant’s erstwhile legal practitioners had declined to accept service of process on the ground that their agency had been terminated, but also that he had been implored to inform the court of this fact. [61] Whether he liked it or not, Mr Mataruka was ethically bound, as an officer of the court, to make such a disclosure to the presiding judge. Mr Zhuwarara dismisses the applicant’s complaint in this regard on the basis that the applicant is free to apply for the rescission of the order by CHILIMBE J. This is rather unfortunate. Why the applicant has not applied for rescission of judgment is not an issue before me. However, whatever the applicant’s reasons for not taking this step is no excuse for the apparent breach of ethics by Mr Mataruka. [e] Disposition [62] I find that the termination of the arbitration proceedings before Mr Chawatama violated the public policy of Zimbabwe in the sense contemplated by Art 34[2][b][ii], as read with 34[5] of the Arbitration Act. As such it is liable to be set aside. [63] Mr Zhuwarara argues that even if I set aside the Chawatama determination, it is incompetent for the court to refer the same proceedings to the same Mr Chawatama with a directive that he must determine all the issues as prayed for in para 3 of the applicant’s draft order. [64] Sight must not be lost that arbitration is a party-driven process. As I said above, the parties choose their own judge. These ones had chosen Mr Chawatama. Unfortunately, he decided to prematurely terminate his mandate in circumstances in which this court has held that the decision was in breach of the public policy of Zimbabwe. [65] If a party does not want to submit before a particular arbitrator, and or if the selected arbitrator declines the mandate conferred upon him, it cannot be the function of this court to impose that person as the arbitrator for the parties. What is important though is that the applicant’s right to have the dispute adjudicated in terms of the parties’ original agreement is respected and enforced. The matter must go back to arbitration in terms of the original agreement. It is up to the parties to agree on the choice of the arbitrator, failing which they are entitled to assert their rights in terms of the law. [f] Costs [66] The applicant seeks costs on an attorney and client scale. How and why such costs are sometimes awarded by the court is also an over ploughed field. There is an avalanche of cases on the point. In the present case, I am satisfied that the cumulative conduct of the respondents, either themselves personally or through their legal practitioner of record, justifies a penal order of costs. [67] I am particularly concerned by the conduct of the respondent’s legal practitioner of record, Mr Mataruka, as displayed in the papers. No matter how strongly they feel about the merits of their clients’ case, legal practitioners must at all times maintain a dispassionate engagement so as to be able to effectively discharge their duties as officers of the court. A failure to do so may sometimes attract an adverse order of costs in their personal capacities. The dignity of the court must always be maintained. [68] However, in the final result the following orders are hereby made: i/ The arbitral award or order by Mr Regis Chawatama on 15 April 2024 in the dispute between the applicant and the first to fourth respondents is hereby set aside. ii/ The dispute between the parties is hereby referred for determination by arbitration. The arbitrator shall determine all the issues placed before him or her by the parties. iii/ The costs of this application shall be borne by the first to fourth respondents on an attorney and client scale, jointly and severally, the one paying the others to be absolved. 6 January 2025 Atherstone & Cook, applicant’s legal practitioners Gill, Godlonton & Gerrans, legal practitioners for respondents 1 to 4