ZIMBABWE Law and Practice Contributed by: Prince Kanokanga and Davison Kanokanga, Kanokanga & Partners
5. Jurisdiction 5.1 Challenges to Jurisdiction
In such circumstances, a party is able to approach the High Court for assistance. See Powertel Communica- tions ( Pvt ) Ltd v Dandemutande Investments ( Pvt ) Ltd HH 454-25 and Netone Cellular ( Pvt ) Ltd v Muchenje HH 720-25. In Stewart v City of Harare 1984 (2) ZLR 72 (HC), it was held that when seeking the court’s intervention in the selection of arbitrators, it is advisable for the party making the application to furnish the court with the proposed names of the arbitrators and the names of the persons who may have already been considered and rejected by the parties, if any, together with a short curriculum vitae (CV) that sets out the proposed arbitrator’s experience, skills and qualifications. 4.4 Challenge and Removal of Arbitrators In Zimbabwe, the grounds and procedure for the removal of arbitrators are governed by Articles 12–14 of the Model Law. See Musonzoa ( Pvt ) Ltd v Standard Fire & General Insurance Co ( Pvt ) Ltd & Another 2002 (1) ZLR 535 (H) and EBI Zimbabwe ( Pvt ) Ltd v Old Mutual Unit Trusts ( Pvt ) Ltd & Another 2009 (1) ZLR 356 (H). For instance, an arbitrator may be challenged when he or she does not satisfy the qualifications or requirements agreed upon by the parties. See Pomelo Mining ( Pvt ) Ltd v Annadale Trust & Another 2019 (1) ZLR 119 (H). Furthermore, there may be reasonable grounds to doubt the arbitrator’s impartiality or inde - pendence. An arbitrator may be removed where he or she has become de facto (factual inability) or de jure (legal incapacity) unable to perform their duty, and/or where the arbitrator unjustifiably delays the performance of their duties. See Grain Marketing Board v Binga Guru ( Pvt ) Ltd 1985 (2) ZLR 147 (H) 152A-B. 4.5 Arbitrator Requirements Under Article 12 of the Model Law, an arbitrator must be independent and impartial, and is required to dis - close any circumstances that may give rise to justifi - able doubts as to their independence or independ - ence. This is a continuing obligation throughout the proceedings. See Econet Wireless ( Pvt ) Ltd v Tend- ayi 2020 (1) ZLR 915 (S).
The principle of competence-competence is appli - cable in Zimbabwe. Under Article 16 (1), an arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. 5.2 Circumstances for Court Intervention Under Article 16 of the Model Law, the High Court can intervene where an arbitral tribunal has made a determination/decision on a preliminary question as to jurisdiction. The High Court may also intervene under Article 16 of the Model Law on a decision or determination rendered by an arbitral tribunal that it is exceeding the scope of its authority. 5.3 Timing of Challenge Under Article 16 of the Model Law, the right to chal - lenge the jurisdiction of the arbitral tribunal is granted only once the tribunal has made a ruling on his or her determination on jurisdiction. In Gumbo v The Gas Boys ( Pvt ) Ltd HH 194-22, it was held to be illogical for an arbitral tribunal to proceed to hear the merits of a case only to later rule that he or she had no jurisdic - tion to do so. The deadline of 30 days for bringing a review to the High Court on the issue of jurisdiction applies when the arbitral tribunal rules on jurisdiction as a prelimi - nary question. See Chinhoyi Municipality v Mangwana & Partners & Another 2016 (2) ZLR 42 (H). Where a party does not bring a review under Article 16 (3) of the Model law, it is deemed to have acquiesced to the decision or determination on jurisdiction. See Zimba- bwe Cricket v Harare Sports Club & Another SC 27-22. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility In Zimbabwe, arbitral proceedings do not in them - selves fall within the scope of judicial review. The question of admissibility, which is related to the claim, and the question of jurisdiction, which is concerned with the power of the tribunal, are considered de novo in Zimbabwe.
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