The respondent raised a point in limine that the applicant did not have the locus standi to institute these proceedings. It was submitted, for the respondent, that the additional corporate and withholding tax was due, not from the applicant, but from Trojan Nickel Mine and Bindura Smelting Corporation. Although the two companies were the applicant's subsidiaries, they were separate legal personalities. The companies should have brought the action in their individual names as they were not incapacitated in any manner.

The applicant submitted that it had a direct pecuniary interest in the affairs of its subsidiaries and therefore had locus standi. The respondent had, throughout the review of the affairs of the two subsidiaries, communicated with the applicant. The court was referred to various communications between the applicant and the respondent in connection with the matter at hand. In particular, the applicant referred the court to the letter dated 6^th July 2005. That letter authorised the respondent to hold back, as deposit, an amount of $8.8 billion being VAT returns submitted to ZIMRA. ZIMRA held back that amount and deducted the interest due by the two subsidiaries from that amount….,.

The applicant's position is reinforced by the fact that the respondent did engage the applicant in its review of the affairs of the subsidiaries. It accepted the applicant's authority to hold back, as deposit, an amount of $8.8 billion being VAT returns due to the applicant in order to off-set what was due from the subsidiaries. The respondent did not object to this direct communication between the holding company and itself. In fact, it is the balance of this amount that the applicant sought to be refunded. Although the respondent submitted that all the correspondence emanating from its office was directed at the two subsidiaries, it is conceded, in the heads of argument, that it had held a number of meetings with the applicant over the two subsidiaries. One such meeting was held on 17 January 2006. It concedes that it is the applicant who instructed the holding over of its VAT refund to settle the two subsidiaries' indebtedness to the respondent. It is further conceded that the applicant and the respondent held a meeting on 17^th of January 2006.

It is my view that after all this engagement with the applicant, in connection with the tax affairs of the subsidiaries, the respondent cannot turn round at this late hour and dispute the applicant's direct interest in the matter and therefore its locus standi.

Phindile Ncube was employed by the plaintiff between 11 May 1987 and February 2009. He had joined the plaintiff as Revenue Clerk responsible for housing. In 1988 he was elevated to the position of Senior Housing Clerk responsible for the supervision of housing clerks and the computation of the home ownership scheme. 

He gave a detailed account of the Government Housing policy....,.

He could not explain why he and the other defendants did not sue the Minister responsible for National Housing to transfer the houses in dispute to them, but adopted an attitude of supine indifference, when the said Minister transferred the said houses into the plaintiff's name....,.

The defendants, save for one, were all employees of the plaintiff at the time of allocation of the houses in dispute. They obviously know the difference between being pool accommodation and rent-to-buy houses. All the defendants later, but before this dispute arose, entered into proper rent-to-buy agreements with the plaintiff so they are familiar with such agreements. The latter agreements clearly state the terms of agreement and the parties.

They cannot be heard to be saying they mistook the rent cards for agreements of sale.

The defendants are just influenced by greed and are trying to obtain two properties each from the plaintiff by converting their leases of the pool houses into ownership agreements.

On 1 January 2003, the applicant and the first respondent executed an agreement for the “supply of primary beverage transport services.”

In terms of clause 8 of the agreement, the first respondent, Delta, appointed the services of the applicant, Pioneer, to distribute and deliver products on its behalf to various destinations.

In order to perform its obligations under the agreement, Pioneer undertook to supply vehicles to Delta for use in the distribution aforesaid. To that end, Pioneer had to make available to Delta twelve mechanical horses which would be used to draw thirty-four trailers, these being supplied by Delta.

The agreement also provided for the supply of additional horses, by Pioneer, on an ad hoc basis as the exigencies of the situation would have demanded.

As sometimes happens, the parties had a falling out.

The agreement, in terms of clause 18 thereof, provided for the settlement of disputes through an arbitration process.

In due course, the second respondent was appointed as arbitrator to the dispute and the matter referred to him. The parties were called before him, and, on 16 January 2010, he issued an award.

The applicant has, through these proceedings, brought an application to have the award set aside by this court in terms of Chapter VII, Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15]. The applicant also seeks costs against the first respondent.

The founding affidavit has been deposed to by a John Groves. He states that he is employed as a Managing Director by the applicant and that he is authorised to depose to the affidavit.

He states therein that the application was being brought to court in accordance with the provisions of section 2 of Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15].

The dispute is centred around the effect to be given to clause 9(f) of the agreement, in terms of which, upon termination of the agreement, Pioneer was supposed to return the trailers to Delta, and such return to be in “good working condition” and order fair wear and tear excepted.

The deponent states that, on 26 September, Delta commenced arbitration proceedings in terms of a Statement of Claim filed of record. Pioneer opposed the claim and the matter was set down for hearing before the arbitrator. Both parties adduced viva voce evidence.

According to the deponent to the affidavit the crystal issue before the arbitrator was the duration of the agreement.

The arbitrator found that the claim by Delta had not prescribed at the time that it submitted the dispute to arbitration. The deponent contends, therefore, that the arbitrator acted outside the enabling provisions of the agreement.

He contends, further, that the finding by the arbitrator that the agreement between the parties terminated on 30 November 2005 was not rationally linked to either the evidence adduced by the parties or submissions made by the same on the papers or during the hearing. He contends, further, that, in finding as he did, that the agreement terminated on 30 November instead of 31 December, as provided for in clause 2 of their agreement, the arbitrator had created a new contract for them....,.

The applicant contends that, before the arbitrator, it put up the case that the agreement commenced on 1 January 2003 and terminated on 31 December 2004 and that the respondent, had, contrary to that assertion, contended that the agreement had not terminated up to the time that it instituted proceedings.

The applicant contends that the arbitrator disagreed with the versions that both parties placed before the arbitrator, and that, in approaching the matter as he did, he created a new contract between the parties based on what he termed practical considerations.

The applicant contends, in this regard, that the arbitrator unilaterally extended the duration of the contract where he held the date of termination as 30 November 2005.

The applicant contends, therefore, that the award is liable to be set aside on the grounds that it is in conflict with the public policy of Zimbabwe....,.

As to the alleged date of termination of the agreement, the first respondent denies that the agreement terminated on 31 December 2004 and contends that the finding by the second respondent cannot be faulted.

The first respondent contends that the allegations by the applicant, in regard to this aspect, amount to an appeal.

It also contends that the evidence adduced before the arbitrator confirmed that the agreement continued beyond 31 December as the applicant did not return any of the trailers by that date.

The first respondent makes reference to evidence given by one Dawson, of the applicant, who stated that the parties carried on dealing with each other until mid 2007. This witness is alleged to have confirmed, under cross examination, that no trailers were handed back to the first respondent on 31 December 2004.

Despite an allegation in the opposing papers over this issue, the applicant did not find it necessary to adduce evidence by way of affidavit to contradict the averment.

One Kevin Motsi, of the applicant, is also alleged to have given evidence that he had been employed by the applicant in 2005 and that, at the time, the applicant was towing the first respondent's trailers. The relationship, according to him, had continued until 2007...,.

The applicant contends that it had furnished to the arbitrator schedules which showed that, from December 2004, the parties had operated on an ad hoc basis as opposed to the strict terms of the agreement...,.