The High Court has ordered Fransisca Zinyemba to transfer a Harare property sold for US$180 000 to the Reformed Church in Zimbabwe, after registering an arbitral award in the church’s favour and dismissing her bid to have it set aside.

Justice Benjamin Chikowero determined two related matters, HCH 4615/18 and HCH 5135/18, both arising from a 2017 agreement of sale between the church and Zinyemba.

The first application sought registration of an arbitral award issued in favour of the church, while the second sought to set aside that award on the basis that Zinyemba had allegedly not been properly notified of the arbitration proceedings.

According to the judgment, the parties entered into an agreement of sale on 17 July 2017 for the purchase of a property known as the remainder of Lot 3 of Lot 6 of Subdivision B of The Grange, also referred to as 204 Enterprise Road, Harare.

The purchase price was US$180 000, to be paid through a mortgage bond of US$160 000 and US$20 000 by bank transfer upon registration of transfer into the church’s name.

The agreement contained a clause selecting domicilium addresses for service of notices, as well as a “whole agreement” clause requiring that any variation, including a change of service address, be made in writing.

A dispute later arose, prompting the church to refer the matter to arbitration. Arbitrator M.L. Mhishi issued an award on 16 April 2018 directing Zinyemba to pass transfer of the property to the church and authorising the Sheriff to sign the transfer documents should she fail to comply. The award also ordered her to pay the costs of arbitration.

Zinyemba subsequently applied to have the arbitral award set aside, arguing that she had not received proper notice of the appointment of the arbitrator or of the arbitral proceedings, and was therefore unable to present her case.

Her legal argument relied on Articles 3 and 36 of the Model Law, as incorporated into Zimbabwe’s Arbitration Act (Chapter 7:15), which provide that enforcement of an arbitral award may be refused if a party was not given proper notice or was otherwise unable to present their case.

Justice Chikowero rejected the argument, finding that Zinyemba had selected 204 Enterprise Road as her domicilium address in the agreement of sale and had not formally notified the church of any change.

The court held that notices relating to the arbitration, including the appointment of the arbitrator, notice of the pre-arbitration hearing and subsequent documents, were served at the chosen address. The Sheriff’s returns of service showed attempts at personal service and, where unsuccessful, service by affixing documents to the outer gate, in accordance with the agreement.

The judge also referred to a letter written on Zinyemba’s behalf on 17 April 2018, a day after the arbitral hearing, requesting a two-week postponement and acknowledging the arbitration proceedings. The court found that this correspondence further demonstrated her awareness of the process.

“The fact that she chose, for reasons known to herself, not to participate in the arbitral proceedings cannot be a ground for the setting aside of the award,” Justice Chikowero said, adding that there was no evidence that she had been unable to present her case.

In HCH 4615/18, the court granted the church’s application and registered the arbitral award as an order of the High Court. Zinyemba was ordered to pass transfer of the property within 10 days of service of the order, failing which the Sheriff is authorised to sign the necessary documents.

The church was directed to tender the agreed purchase price—US$160 000 through a mortgage bond and US$20 000 by bank transfer—while Zinyemba was ordered to pay US$712.81, representing her share of the arbitrator’s costs, as well as the church’s costs of suit.

In HCH 5135/18, her application to set aside the arbitral award was dismissed with costs.