A BID by Zanu PF politburo member, Omega Hungwe, to retain control of mining machinery after a joint venture agreement turned sour has suffered a setback following the High Court’s refusal to entertain her case.
The High Court ruled against Hungwe and referred the matter to arbitration saying it has no jurisdiction to hear the matter.
The dispute revolves around clause 15 of the agreement between Hungwe and Huwambo (Pvt) Ltd. The clause stipulates that any disputes arising from the agreement shall be resolved through arbitration.
The parties agreed to resolve their grievances outside the courtroom, even providing a mechanism for appointing an arbitrator.
They also resolved that in the event that the parties fail to agree on an arbitrator, the president of the Commercial Arbitration Centre in Harare is, therefore, empowered to appoint one.
Despite the provision, Hungwe approached the High Court seeking an interdict to stop Huwambo from removing machinery from 65 VA Great Riversdale Farm in ward 22, Mazowe.
Hungwe sought to keep the equipment as security for her alleged legal entitlements, including compensation for Huwambo’s breach of contract. High Court judge Justice Maxwell Takuva refused to entertain the matter saying the parties had agreed to resolve their disputes through arbitration.
“In my view, this clause is crystal clear. It ousts the jurisdiction of courts of law. Applicant (Hungwe) submitted that this clause does not oust the court’s jurisdiction because applicant is not seeking a substantive relief, but an interdict,” Justice Takuva ruled.
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“It is the applicant’s contention that she decided to preserve value first before pursuing arbitration.
“Unfortunately, the founding affidavit does not mention arbitration. A party’s case stands or falls on its founding affidavit. Further, the court’s duty is to enforce the parties’ contract and not to make one for them.”
The judge struck the matter off the roll.
“The parties should refer their disputes to arbitration in line with the intention expressed in their contract.”
The judge ordered Huwambo to pay costs of the suit. The background of the matter is that on October 26, 2023, Hungwe and Huwambo entered into a contract to extract minerals from the former’s Mazowe farm, leveraging on a special grant awarded to her by the Mines and Mining Development ministry.
Under the agreement, Huwambo was obliged to commence mining operations within six months of the contract’s execution.
However, Hungwe alleged that Huwambo failed to fulfil its obligations, leaving her to shoulder significant financial losses.
The situation took a turn last May when Huwambo allegedly descended on the farm with the intent to seize machinery held by Hungwe as security for unpaid compensation.
Hungwe contended that this conduct was not only unlawful, but also in direct violation of her property rights under the contract.
She later approached the High Court seeking to stop the removal of the equipment.
Huwambo opposed the application saying the High Court has no jurisdiction to hear the matter.
Justice Takuva said clause 15 of the agreement was unambiguous in its intent to oust the jurisdiction of the courts.
By electing arbitration as their forum of choice, the parties effectively barred the High Court from presiding over their dispute.
