REFORMED CHURCH IN ZIMBABWE v ZINYEMBA, ZINYEMBA v REFORMED CHURCH IN ZIMBABWE (11 of 2026) [2026] ZWHHC 8 (14 January 2026)

1 HH 11-26 HCH 4615/18 HCH 5135/18 REFORMED CHURCH IN ZIMBABWE and FRANSISCA ZINYEMBA FRANSICA ZINYEMBA and REFORMED CHURCH IN ZIMBABWE HIGH COURT OF ZIMBABWE CHIKOWERO J HARARE, 17 September 2025 and 14 January 2026 Opposed Applications A Muchadehama, for the applicant in HCH 4615/18 and the respondent in HCH 5135/18 N Ndlovu, for the respondent in HCH 4615/18 and the applicant in HCH 5135/18. CHIKOWERO J: INTRODUCTION [1] This is a composite judgment disposing of case numbers HCH 4615/18 (the first matter) and HCH 5135/18 (the second matter). [2] The first matter is an application for the registration of an arbitral award while the second matter is an application for the setting aside of the same arbitral award. [3] It is convenient to determine whether a case has been made for the setting aside of the arbitral award. My decision in that regard will dispose of both matters. FACTUAL BACKGROUND [4] The Reformed Church in Zimbabwe (“RCZ”) is a common law universitas with congregations throughout Zimbabwe. [5] Fransisca Zinyemba (“Zinyemba”) is a female adult resident in this country. [6] On 17 July 2017 and at Harare the parties entered into an agreement of sale in terms of which Zinyemba sold to RCZ a certain piece of land called Remainder of Lot 3 of Lot 6 of Subdivision B of the Grange also known as Number 204 Enterprise Road, The Grange, Harare. This property, held under Deed of Transfer Number 1231/2002 dated 15 February 2002 in favour of Zinyemba had, as improvements, a single storey, brick under title, four bedrooms, two bathrooms, lounge, dining, fitted kitchen, servants’ quarters and was fully walled and gated. HH 11-26 HCH 4615/18 HCH 5135/18 [7] The purchase price, in the sum of US$ 180 000, was payable through a mortgage bond to be secured by RCZ against the same property. The purchase price would be released to Zinyemba upon transfer of the property being registered in favour of RCZ. [8] Clauses 12 and 14 of the agreement of sale are significant for our purposes. They read: “12.1 NOTICES 12.1 The Seller and the Purchaser hereby choose as their respective domicilium citandi et executandi for all purposes of this Agreement their addresses set out on page one or such other address or addresses as the parties may from time to time notify each other in writing. 12.2 All notices required to be given in terms of this Agreement and all process shall be deemed to have been validly given or served if addressed to the party concerned and delivered to the given diomicilium address or emailed to each other on the email addresses given on page one. 14 WHOLE AGREEMENT This agreement constitutes the entire contract between the parties hereto otherwise than as may be recorded herein and: 14.1 No warranty, representation, promise or undertaking has been given or made by either party to the other except as recorded in this Agreement; 14.2 No variation in this Agreement shall be valid unless reduced to in writing and signed by or on behalf of the parties hereto.” [9] In terms of the agreement of sale, Zinyemba provided 204 Enterprise Road, The Grange, Harare, as her address for service while RCZ provided 32 Winson Road South, Hatfield, Harare as its address for service. [10] [11] In addition, the agreement of sale contained an arbitration clause. Indeed a dispute arose resulting in the RCZ referring the same to arbitration. At the conclusion for the arbitration process, the entirety of which Zinyemba did not participate in, M. L Mhishi ( the Arbitrator) made an award in favour of the RCZ on 16 April 2018 the relevant portions of which read as follows: “WHEREUPON after reading papers filed of record and hearing counsel, IT IS HEREBY ORDERED THAT: 1. That Respondent shall pass transfer of the property, namely remainder of Lot 3 of Lot 6 of Subdivision B of The Grange also known as number 204 Enterprise Road, The Grange, Harare, measuring 4543 square metres in extent to the claimant. 2. That in the event of the Respondent failing to comply with para 1 above within 7 days of being served with this award then and in that event the Sheriff for Zimbabwe or his lawful assistant/ deputy be and is hereby authorised to sign all documents necessary to effect transfer from the Respondent’s name into the Claimant’s name. 3. The Claimant shall tender the purchase price of the property to the respondent which amount shall comprise the sum of one hundred and sixty thousand United States Dollars (US$ 160 HH 11-26 HCH 4615/18 HCH 5135/18 000) through mortgage bond and twenty thousand United States Dollars (US$ 20 000) to be paid by bank transfer. 4. That Respondent shall bear Claimant’s costs at an ordinary scale. 5. That the Respondent shall pay to the Claimant $ 712-81 of its share of arbitrator’s costs. 6. That this award shall be served on the Respondent in terms of the High Court of Zimbabwe Rules at her chosen address for service by the Sherriff of Zimbabwe or his lawful deputy.” WAS ZINYEMBA NOT GIVEN PROPER NOTICE OF THE APPOINTMENT OF THE ARBITRATOR OR OF THE ARBITRAL PROCEEDINGS OR WAS OTHERWISE UNABLE TO PRESENT HER CASE? [12] Ms Ndlovu argues that the arbitral award should be set aside on the basis that Zinyemba was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings with the result that she was unable to present her case before the arbitrator. [13] This argument is predicated on Articles 3 and 36 of the Model Law in the Arbitration Act [Chapter 7:15]. [14] Article 3 reads: “Receipt of written Communications (1) Unless otherwise agreed by the parties (a) Any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address, if none of these can be found after making a reasonable enquiry, a written communication is deemed to have been received if it is sent to the addressee’s last known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it; (b) The communication is deemed to have been received on the day it is so delivered.” [15] Article 36 says: “Grounds for refusing recognition or enforcement (1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only- (a) At the request of the party against whom it is invoked, if that party furnishes to the Court where recognition or enforcement is sought proof that- (i) (ii) [not relevant] The party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case.” [16] [17] The application for the setting aside of the arbitral award is without merit. As recorded at paras 8 and 9 of this judgment, in entering into the agreement of sale, Zinyemba chose 204 Enterprise Road, The Grange, Harare as her address for service. Not HH 11-26 HCH 4615/18 HCH 5135/18 only that, the agreement of sale contained a “whole agreement” clause. This means that if she were to have some other address for service Zinyemba needed to notify the RCZ in writing of such change in the address for service. This was never done. [18] It is not necessary to burden this judgment by going through the paper trail vis-à-vis service by the RCZ on Zinyemba of notice of the appointment of the arbitrator and of the arbitral proceedings. It suffices that I mention the following. The RCZ, in writing, declared a dispute and invited Zinyemba to nominate an arbitrator from a list provided by the Commercial Arbitration Centre. Zinyemba was not cooperative. This prompted the RCZ to request the Commercial Arbitration Centre to appoint an arbitrator, which was duly done. Zinyemba was notified of the appointment of the arbitrator and was served with the notice of set down of the pre-arbitration hearing, through the Sheriff, at her chosen address for service. The notice of set down was received at 204 Enterprise Road, The Grange, Harare on 20 March 2018 at 10:45 am by one Bondera on behalf of Zinyemba. This means that Zinyemba was aware that the pre-arbitration hearing was set down for 27 March 2018 at 11:00 am at Mhishi Nkomo Legal Practice, 86 McChlery Avenue, Eastlea, Harare. That she decided not to attend the pre-arbitration hearing does not detract from the fact that proper notification of that part of the arbitral proceedings was done by the RCZ. Further, the Sheriff, on the instructions of the RCZ, served copies of the Minutes of the pre-arbitration hearing and the latter’s statement of claim at Zinyemba’s chosen address for service. The date for the arbitration hearing was reflected in the Minutes of the pre- arbitration hearing. [19] The Sheriff’s return of service proves that he conducted an unsuccessful diligent search for Zinyemba herself (so that he would effect personal service) or for a responsible person before he effected service of the RCZ’s statement of claim and Minutes of the pre- arbitration hearing by affixing the same to the outer principal black gate at her chosen address for service. Since the service was in line with the provisions of clause 12:2 of the agreement of sale, Zinyemba is deemed to have been served with the RCZ’s statement of claim as well as the Minutes of the pre-arbitration hearing which contained the date of the arbitration hearing itself. [20] Indeed, that Zinyemba was properly notified of the appointment of M. L Mhishi as the arbitrator and of the arbitral proceedings is fortified by the contents of a letter written on her behalf by one Tinotenda Zinyemba on 17 April 2018. It reads: HH 11-26 HCH 4615/18 HCH 5135/18 “Suite 5, Sussex Court No 116 Kwame Nkrumah Avenue Harare Dear Sir RE: SALE OF LOT 3 OF LOT 6 OF SUBDIVISION B OF THE GRANGE ARBITRATION The above refers. I write to you as pertains to Mrs Fransisca Zinyemba the Respondent in the matter that is before you for arbitration. I am aware of and very familiar with this issue as I also dealt with the Applicant’s people in particular Rev J Mashamba. In the circumstances I am requesting a two (2) week hiatus so that we can put our house in order. This will enable us to ventilate all the issues at hand and assist in the conclusion of the matter. Your assistance in this regard shall be greatly appreciated. Yours Faithfully (signed) Tinotenda Zinyemba cc Mbidzo, Muchadehama and Makoni.” [21] Strangely, this letter was written a day after the arbitral hearing was held and the making of the award. All the same, the letter is evidence that Zinyemba was properly notified of the appointment of the arbitrator and of the arbitral proceedings. That she chose, for reasons known to herself, not to participate in the arbitral proceedings cannot be a ground for the setting aside of the award. There is no evidence that she was unable to present her case at the arbitral hearing. She chose not to do so. [22] For emphasis, I record that service of notice of the appointment of the arbitrator and of the arbitral proceedings, having been effected at Zinyemba’s chosen address for service, was good. See Lindup v Lowe 1935 NPD 189, Balston v Van Zyl 1946 NPD 561, Spenser v Du Toit 1942(2) PH F66 (0) & Thesen’s Steamship Co Ltd v Heitmann 1949(2) SA 799 (SWA). [23] In the circumstances, the application for setting aside of the arbitral award cannot succeed. Further, since the same ground had been relied upon to resist the application for the registration of the arbitral award, the award shall be registered as an order of this Court. ORDER. [24] IT IS ORDERED THAT: (A) In case number HCH 4615/18: 1. The application be and is granted. HH 11-26 HCH 4615/18 HCH 5135/18 2. The arbitral award handed down by Arbitrator M. L Mhishi on 16 April 2018 in case number 01-MLMA 15/3/18 be and is registered as an order of the High Court. 3. Respondent shall pass transfer to the Applicant of a certain piece of land being remainder of Lot 3 of Lot 6 of Subdivision B of the Grange measuring 4543 square metres held under Deed of Transfer Registered Number 1231/2002. 4. In the event of the Respondent failing to comply with para 3 within ten (10) days of being served with this order the Sheriff for Zimbabwe or his lawful deputy/assistant shall sign all documents necessary to effect transfer of the property from the Respondent’s name into the Applicant’s name. 5. Applicant shall tender the purchase price of the property to the Respondent which amount shall comprise the sum of one hundred and sixty thousand United States Dollars (US$ 160 000) to be paid through mortgage bond and twenty thousand United States Dollars (US$ 20 000) to be paid by bank transfer. 6. The Respondent shall pay the applicant $ 712-81 being her share of the Arbitrator’s costs. 7. The Sherriff for Zimbabwe or his lawful deputy shall serve this order on the Respondent by delivering the same at 204 Enterprise Road, The Grange, Harare. 8. The respondent shall pay the Applicant’s costs of suit. (B) In case number HCH 5135/18: 1. The application is dismissed. 2. The applicant shall pay the Respondent’s costs of suit. CHIKOWERO J:................................................................ Mbidzo Muchadehama and Makoni, applicant’s legal practitioners in case number HCH 4615/18 and respondent’s legal practitioners in case number HCH 5135/18 Mlotshwa Solicitors, respondent’s legal practitioners in case number HCH 4615/18 and Applicant’s legal practitioners in case number HCH 5135/18.