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The matter follows the termination of a joint venture between the Zimbabwe Mining Development Corporation, which owns Marange Resources and Core Mining.
The partnership was dissolved on allegations that Core Mining had misrepresented that it had capital to exploit diamonds in Marange when it did not have money. The Law Society of Zimbabwe had appointed Retired Justice Moses Chinhengo as the arbitrator in a protracted equity dispute.
But Marange Resources made a High Court application challenging the appointment of Retired Justice Chinhengo, arguing that he does not have jurisdiction to deal with the matter.
“Pending the final determination of these proceedings, the arbitration proceedings currently before the second respondent (Rtd Justice Chinhengo) are stayed,” read an order by Justice Dube.
Marange Resources argued that the validity of the agreement between the company and ZMDC could not be determined by the arbitrator in terms of the law.
Marange Resources said the arbitration clause does not cover disputes relating to the validity of the agreement. In addition, it argued the appointment of the arbitrator could only be done on the basis of a valid agreement. Further, Marange Resources said the “purported” agreement relied upon by Core Mining and Mineral was a legal nullity and the “position of the law is that an arbitration clause in a void agreement is unenforceable.”
In his opposing affidavit, Mr Kurotwi had argued that it was unprocedural and unlawful for Marange Resources to seek a High Court order barring the arbitration of the matter. But in his answering affidavit, Marange Resources chief executive Mr Obed Dube said the opposing affidavit by Mr Kurotwi was “fatally defective”.
“It is now common cause that the first respondent (Core Mining) has been placed into final liquidation by an order of the High Court of South Africa,” said Mr Dube.
“This fact has not been challenged or disputed. I am advised by my legal counsel that the company in final liquidation can only bring or defend court proceeding exclusively through the liquidator. The liquidator has not filed any opposition. The opposing affidavit filed by Mr Kurotwi is clearly a legal nullity as he is not the liquidator.
Mr Kurotwi purports to depose to the affidavit in his capacity as a director of a company in final liquidation yet the position of the law is very clear that once a company is placed in final liquidation, all power of the directors are suspended and can only be exercised by the liquidator. It therefore follows that the purported opposing affidavit by Mr Kurotwi must be wholly discarded for want of authority on the part of Mr Kurotwi to represent the first respondent.”
Last year, an SA court granted a liquidation order against Core Mining and Minerals after the company failed to settle its huge debts.
According to papers filed at South Gauteng High Court, an applicant — Babcock Africa Services, which operates the Volvo franchise in SA – said Core Mining had failed to pay close to R11 million.
Online Reporter