Zimbabwe School Examinations Council v A R Mandizvidza Architect t/a Amandiz Archtect (678 of 2022) [2022] ZWHHC 678 (6 October 2022)

1 HH 678-22 HC 5967/21 ZIMBABWE SCHOOL EXAMINATIONS COUNCIL versus A R MANDIZVIDZA ARCHITECT t/a AMANDIZ ARCHTECT HIGH COURT OF ZIMBBAWE MANYANGADZE J HARRAE, 23 May & 6 October, 2022 Opposed Matter Mr Z T Zvobgo, for the applicant Mr K Musoni, for the respondent MANYANGADZE J: This is an application for a declaratur, in terms of which the applicant seeks the following order: 1. The application for a declaratur be and hereby succeeds. 2. It be and is hereby declared that the respondent’s claims for payment against the applicant, which claims are based on the architectural designs and works that were carried out and submitted by the respondent to the applicant in the year 2007, arising from, out of and in connection with the agreement that was entered into by and between the applicant and respondent on or about 24 March 2006, have been extinguished by reason of extinctive prescription. 3. Consequently, it be and is hereby declared the respondent’s claims referred to in the preceding paragraph are no longer legally enforceable, and as such, the applicant is in no way indebted to the respondent insofar as the agreement that was entered into by and between the applicant and respondent on or about 24 March 2006 is concerned. 4. The respondent shall pay the applicant’s costs of suit on the legal practitioner and client scale The facts forming the background to the application are detailed in the pleadings. In summary, the dispute arises out of a contract entered into by the applicant and the respondent on 3 March 2006. In terms of the agreement, the respondent was to provide architectural designs to the applicant for the construction of a warehouse and printing press at the applicant’s premises in Norton. It was agreed, inter alia that the applicant would pay the respondent at the completion of each stage of the project. HH 678-22 HC 5967/21 The respondent would produce and furnish the applicant with an invoice at each completed stage of the architectural designs. A dispute arose over outstanding payments claimed by the respondent. The payments covered both the pre-dollarisation and post-dollarisation era, causing confusion and disagreement over the appropriate computation for such payments. This led the parties to engage independent consultants, a firm of Quantity Surveyors called D Gutu & Associates. The firm produced its report on 8 December 2015. (the Gutu Report) The Gutu Report recommended that the applicant pays USD170 777, 96 as “incontestable design fees” for work done after 2009, that is, after the country’s economy was dollarized. The Report also recommended that applicant pays what is referred to as “contestable design fees”, in the sum of USD17038, 18. These are fees incurred before 2009, when the economy was not yet dollarized. The applicant only settled the incontestable design fees. It insisted this constituted full and final payment of all its obligations to the respondent. The respondent produced another invoice in June 2016, for an amount of USD285 447, 49. The applicant disputed this invoice, insisting that no further work was done by the respondent after the Gutu Report. On 2 September 2020, the applicant informed the respondent of its decision to terminate the contract the parties had concluded in March 2006. The respondent protested the cancellation. Instead it claimed from the respondent an amount of USD 1307 972, 46. This was later revised downwards to USD621 957, 82. The respondent’s position was that the payment done by the applicant only covered the printing press design services. It did not cover the sorting warehouse. The parties failed to reach an agreement on the payments claimed by the respondent. The respondent declared the existence of a dispute. It gave notice to the applicant of its intention to refer the matter to arbitration in terms of the agreement the parties had entered into. This prompted the instant application, wherein applicant seeks a declaratur in the terms cited above. In its opposing papers, the respondent raised a point in limine to the effect that the matter has been prematurely brought before the court. The reason for raising that point is that the parties’ contract provides for referral of disputes to arbitration. HH 678-22 HC 5967/21 In its answering affidavit, the applicant also raised a preliminary point. It is that the opposing papers are defective, in that they are not paginated and indexed. At the hearing of the matter, the respondent made an oral application for condonation of his non-compliance with the court’s rules. This was not opposed by the applicant. Consequently, the notice of opposition was deemed to be duly filed. I now turn to the respondent’s point in limine The respondent’s point essentially, is that the dispute that has risen between the parties must be referred to arbitration, in terms of the contract they signed. The respondent is invoking the doctrine of the sanctity of contracts. What the contracting parties freely agreed to must be given full effect. Clause 17 of the contract stipulates that any dispute arising out of the agreement shall be referred to arbitration. The respondent highlights that the dispute is that of non- payment of fees for services rendered. The application for a declaratur launched by the applicant is simply a means to circumvent the clear provisions of the contract. This point is reflected in para 3 of the respondent’s heads of argument as follows: “In casu, there can be no more emphasis on the need for the parties to adhere to the dictates of the agreement they entered into, that is that, the dispute between them ought to be referred to arbitration and not for the court to interfere. The emphasis being relied on by the applicant that of a declaratory cannot be isolated from the dispute that is between the parties that of non-payment of fees due to the respondent. Applicant cannot run with what the High Court Act provides and ignores the dispute between the parties. The contract between the parties must govern the relation between the parties above everything else.” The applicant, on the other hand, contends that the route it has taken ousts the jurisdiction of the arbitrator. Only the High Court has jurisdiction to grant a declaratory order. It exercises this power in terms of s 14 of the High Court Act, which provides that: “14. High Court may determine future or contingent rights The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such a person cannot claim any relief consequential upon such determination.” The applicant contends that its cause of action, being a declaratur sought in terms of a statute, cannot be determined by an arbitrator. It emphasizes this point in para 5.4 of its heads of argument, wherein is stated; HH 678-22 HC 5967/21 “Clearly, the cause of action in casu is one which arises from statute. The statute reserves the right of granting a declaratur exclusively to the High Court and no other court or tribunal. Therefore, an arbitrator cannot be called upon to determine an application for a declaratur, which has been instituted in terms of s 14 of the High Court Act, because that is a matter which falls entirely out of the purview of what an arbitrator is permitted by law to do. An arbitrator clearly lacks the requisite jurisdiction to entertain such an application”. In order to properly resolve this point, the exact nature of the dispute between the parties must be understood. Basically, it is a dispute over the non-payment of fees for services rendered. These services, being architectural designs, were rendered pursuant to an agreement the parties freely entered into. This is evidenced by extensive correspondence between the parties, filed of record, culminating in the declaration of a dispute by the respondent. This much is common cause. The pertinent question is, what does the contract say about dispute resolution? Clause 17 of the contract provides as follows: “Any difference or dispute arising out of this agreement shall be referred to arbitration by a single arbitrator, such arbitrator to be appointed by the agreement of the parties within fourteen days of the declaration of the dispute or, failing such agreement, to be appointed by: a) The chairman for the time being of the Architects Council,” The wording of this clause is clear and unambiguous. The parties intended to have their disputes referred t to arbitration. The clause is couched in peremptory terms. The courts are very slow to disregard provisions of a contract parties of full legal capacity freely and voluntarily concluded. Sanctity of contracts is a time honoured principle. See Books v Davidson 1988 (1) ZLR 365 (S), ZIMRA v Mudzimuwaona SC 4/18, Old Mutual Shared Services (Pvt) Ltd v Shadaya HH 15/13, Mwayipaida Family Trust v Madoroba & Ors 2004 (1) ZLR 439 (S). It seems to me any defence the applicant wishes to raise against the respondent’s claim for payment of its fees, it can do so at arbitration. What the applicant has done is to make its possible defence the subject of an application for a declaratur. This is clearly intended to forestall any proceedings the respondent may bring for recovery of his fees for services rendered. I do not think this is what declaratory proceedings were intended to achieve. It would mean that anybody invoiced for the payment of goods or services, or has received a letter of demand for such payment, can rush to the High Court seeking a declaratur against such invoices and/or letters of demand. This is basically what happened in casu. The applicant was issued with invoices by the respondent, as service provider. Instead of dealing with those demands as per contract, it HH 678-22 HC 5967/21 rushed to this court for a declaratur, seeking to nullify the invoices. In my view, this is an abuse of the provision on declaratory orders. If allowed, it could lead to an avalanche of such applications, where debtors raise whatever defences they feel they have against the claims they are facing, by way of applications for a declaratur. In casu, clearly the parties’ contract should be the first port of call. It incorporates a provision for dispute resolution. This is the primary or domestic remedy that should be pursued. The principle that domestic remedies, where available, should be pursued before recourse to the courts is well recognized. These remedies are only rejected or avoided if they are shown to be inadequate or ineffective. See Moyo v Forestry Commission 1996(1) ZLR 173 (H) at 192, Cargo Carriers (Pvt) Ltd v Zambezi & Others 196 (1) ZLR 613 (S) In para 3 of his heads of arguments the respondent submits. “It is clear that parties to the contract intended to resolve their disputes that may arise through arbitration and no other way. Can the application before the court then successfully take away that desire from the parties? The answer is a NO! The contract did not intend to achieve that position.” In the circumstances, I find merit in the preliminary point that the application has been prematurely brought to court and is thus not properly before it. The proper course of action, in my view, is to order that it be struck off the roll. It is accordingly ordered that: 1. The application for a declaratur be and is hereby struck off the roll. 2. The applicant bears the respondent’s costs. CZ Attorneys, applicant’s legal practitioners Musoni Masasire Law Chambers, respondent’s practitioners