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Case 321: MAL 8
Zimbabwe: Harare High Court (Judge Smith); Judgment No. HH-20-2000
18 and 26 January 2000
Waste Management Services v. City of Harare
Original in English
Unpublished
A dispute arose between a contractor, plaintiff, and a local authority, defendant, as to the amount owed by the defendant to the plaintiff under a contract for carrying out refuse collection services. The plaintiff sued the defendant for the payment of the alleged outstanding amount.
The defendant raised a special plea that, in terms of the contract, any disputes arising between the parties had to be referred to an official of the local authority for determination. However, if the contractor was dissatisfied with the official's decision, it could refer the matter to arbitration. None of this had taken place and the defendant requested the court therefore to stay the proceedings. The plaintiff challenged the relevant clause of the contract, on the grounds that it was contrary to public policy, because it conferred a discretion on an official of one of the parties to determine the issue. It thus, offended the principle of "nobody should be a judge in his own cause".
The court held that if the official's decision was indeed to be final, then the provision would be contrary to public policy. However, it was saved by reason of the right to refer the matter to arbitration.
Furthermore, the court held that article 8 MAL was applicable and, since the defendant had so requested, the court had no option but to stay the proceedings and refer the matter to arbitration.
[Original: English]
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