Fidelis Munyoro — An appeal by the National Social Security Authority challenging a High Court decision confirming an arbitration award that compelled it to pay a housing corporation US$30 million in a botched housing deal will now go ahead.
This is after the Supreme Court tossed out a motion seeking to disqualify one of the three judges assigned to the appeal bench.
Justice Tendai Uchena was assigned to the first three-judge panel that heard the first appeal involving NSSA and Housing Corporation Zimbabwe (HCZ) two years ago, along with Justice Susan Mavangira and Justice Felistus Chatukuta.
In that appeal, the court dealt with a procedural irregularity, which saw the matter being referred back to the High Court for a fresh hearing before a different judge.
Justice Uchena found himself again on the appeal bench to hear the fresh appeal brought in September last year. This time, he sat with Justice Antonia Guvava and Justice Samuel Kudya. HCZ objected and applied to have the judge removed from the case, amid fears of bias.
In a judgment made available this week, Justice Antonia Guvava, sitting along with Justice Uchena and Justice Kudya, denied the housing corporation's bid for the removal of Justice Uchena from the matter. She ruled that the corporation failed to prove a real likelihood of bias on the part of Justice Uchena.
An application for recusal is not one that is easily granted unless it is proved that the judicial officer will most likely be biased in determining the appeal and Justice Guvava said the fact that a judge determined a preliminary issue in the appeal is not on its own a basis for an application for recusal.
"As a result, the application for recusal must fail," she said. "Accordingly, it is ordered that application for recusal be and is hereby dismissed with costs."
NSSA is seeking to overturn a High Court decision which gave effect to an arbitration award requiring it to pay US$30 million in the failed deal. This was in addition to US$16 million which NSSA had already paid to HCZ.
NSSA and HCZ had concluded a housing off-take agreement which required HCZ to make available to NSSA 8 000 houses and flats at US$38 000 per unit. But without availing a single unit, and having received the US$16 million deposit, HCZ cancelled the contract and claimed US$56 million in damages.
Independent arbitrator lawyer Mr Peter Lloyd awarded HCZ US$22 million and a challenge by NSSA to the award failed in the High Court. HCZ successfully sued NSSA for repudiation of the contract before the arbitrator.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
When HCZ approached the High Court to register the arbitration award, NSSA contested this, arguing that the award was irregular, as it held NSSA liable to damages that were not part of the contract.
But the High Court allowed the registration of the arbitral award as the order of the High Court, ruling that NSSA had serious challenges in proving its case, as the legal and factual findings by the arbitrator were not demonstrably wrong.
This, the court said, was because the arbitrator confined himself to the facts, issues and the law as submitted by the parties, noting that NSSA failed to demonstrate that the award was against public policy, or let alone show that the reasoning and conclusions of the arbitrator were wrong in fact or in law.
Advocate Thabani Mpofu instructed by Zigomo and Musarira Law, is acting for NSSA while Adv Daniel Tivadar instructed by Mawere Sibanda Commercial Lawyers, is representing HCZ.
