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Elevator company Clovgate loses challenge against ZPC  

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By Staff Reporter


A local company which specialises in elevators, escalators, and stairlift installation, maintenance and repair, Clovgate Elevator (PVT) LTD has lost an arbitral award challenge against the Zimbabwe Power Corporation Pvt LTD (ZPC).

Clovgate approached the High Court recently with an application for setting aside an arbitral award in terms of article of the Model Law.

The article provides that an arbitral award may be set aside by the High Court only if it finds that the award is in conflict with the public policy of Zimbabwe.

Sometime in June 2013 the applicant (Clovgate) and second respondent (ZPC) entered into a contract to carry out lift shaft structural refurbishment of the Kariba Power Station.

They agreed on a contract price.

Clovgate claimed the contract incurred extra expenses in the refurbishment works. ZPC disputed this position.

The parties then appeared before retired Justice November Mtshiya for arbitration.

The issues for determination presented before the arbitrator were whether or not the parties entered into a variation agreement.

Another point was whether or not there was a variation of scope of work and supplies and whether Clovgate was entitled to any payment in terms of the variation.

At the conclusion of the proceedings before Mtshiya, the award was issued on 27 May 2022.

Mtshiya ruled that all variations claimed by Clovgate in respect of the Kariba Power Station contract were null and void.

The judge said as a result ZPC was not obliged to make any payments as prayed for by the claimant.

“The claims for specific performance and unjust enrichment are dismissed.Each party shall bear its own legal costs.The parties shall pay the arbitrator’s fees in equal shares.

“This award replaces the composite award issued on 28 February 2022 in respect of the same matter,” he ruled.

Clovgate then filed the present court application arguing that the arbitral award issued on 27 May 2022 was in direct conflict with the public policy of Zimbabwe in that it creates a palpable inequity between the parties and it fails to deal with the issues submitted for arbitration.

Clovgate also said the arbitral award was self-defeating and contradictory in its rendering as to amount to a failure to conduct arbitral proceedings and is rendered contra evidence established and presented before the arbitrator.

However, High Court judge, Justice Jacob Manzunzu dismissed the application ruling that the complaints raised by the applicant against the arbitral award do not come anywhere near the threshold for refusal to recognise and enforce an arbitral award, later alone to set it aside.

“The applicant’s concerns are the usual fulminations of a disappointed litigant.

“The applicant has not shown that which it says is contrary to the public policy of Zimbabwe in the arbitral award and accordingly has failed to discharge the onus upon it.

“I conclude that there is no basis to set aside the arbitral award.

“While the respondent has asked for costs on a higher scale, I do not think such is justified in the present case,” said the judge before dismissing the application with costs on the ordinary scale.