Fidelis Munyoro
Chief Court Reporter
The National Social Security Authority (NSSA) has lost its bid to remove arbitrator Audily Chatora from a US$49 million construction dispute after the High Court ruled that its complaints against his handling of the proceedings did not establish bias or justify his recusal.
Justice Mungwari last week dismissed NSSA’s application to have Chatora removed from the arbitration involving the authority and Ceezed Construction (Private) Limited’s ( formerly Costain Zimbabwe), corporate rescue practitioners, Raymond Bulimayi Sibanda and Oliver Mutasa.
The dispute stems from the construction of the Beitbridge Hotel, which was awarded to Ceezed Construction, in 2010 at a contract price of US$17,375,427.52.
The contractor later submitted a final account of US$34,766,091.55. Its corporate rescue practitioners subsequently approached Chatora seeking US$49,145,619.15 from NSSA, raising the dispute over whether a final account had been issued and whether the claim was brought within the contractual time limits.
NSSA argued that the architect had issued a final account in February 2016 and that the claimants were out of time. The practitioners disputed this, maintaining that no valid final certificate had been issued.
The authority’s application for Chatora’s removal arose after he issued Procedural Order Number Four on October 10, 2025, requiring NSSA to seek permission before introducing additional witnesses.
The order required the authority to identify its proposed witnesses, explain what their evidence would cover, demonstrate its relevance and account for why the evidence had not been presented earlier.
NSSA argued that the arbitrator had introduced the requirement without hearing either party and had effectively restricted its right to present evidence challenging the project architect, Arthur Matondo, whose proposed testimony supported the practitioners’ position.
The authority also accused Chatora of favouring the claimants through his procedural decisions and argued that his conduct created a reasonable apprehension that he would not determine the dispute impartially.
But Justice Mungwari ruled that the procedural order did not exclude any witness or finally determine the admissibility of the proposed evidence.
“The applicant’s founding assertion that the arbitrator had already ‘ruled’ the applicant plainly overstates the import of the document,” she said.
The judge said the arbitrator had instead required NSSA to explain what evidence it intended to introduce and why it should be admitted after the earlier procedural stages had been completed.
She added that the authority had not even submitted the application required by the order and that the arbitrator had therefore not rejected any proposed witness.
“The applicant has not made one, so the arbitrator has refused nothing,” Justice Mungwari said.
The court found that an arbitrator was entitled to regulate proceedings and determine the admissibility, relevance and weight of evidence under Article 19 of the Model Law on Commercial Arbitration.
However, the judge acknowledged that the procedure adopted by Chatora had raised concerns, particularly because the order was issued without hearing the parties.
“An adjudicator who makes an order affecting a party’s right to lead evidence without first hearing that party acts in a manner that sits uneasily with the requirement in article 18 that each party be given a full opportunity of presenting its case,” she said.
The court nevertheless distinguished between a procedural decision that may be challenged and conduct demonstrating partiality.
Justice Mungwari said the test was whether a reasonable and informed person would conclude that there was a genuine likelihood that the arbitrator would not determine the dispute fairly.
She found that NSSA had failed to meet that threshold.
The judge also rejected the argument that the claimants’ participation in defending the arbitrator demonstrated an improper relationship. She said Article 13(2) expressly allowed the other party to respond to an arbitrator challenge.
Justice Mungwari ordered NSSA to pay the first and second respondents’ legal costs.
Chatora will, therefore, remain seized with the arbitration, which will determine whether NSSA owes the construction company the amounts claimed.
