RETIRED High Court judge, Justice George Smith has been taken to court on allegations of violating court procedures in the manner in which he handled the arbitration of a property dispute.
by EVERSON MUSHAVA
In an urgent chamber application by Goodliving Real Estate filed at the High Court on December 3, the firm claims Justice Smith had been acting in contravention of the law, overriding court orders.
Justice Smith is the arbitrator in the property dispute between Goodliving and Adam and Company (Pvt) Ltd and SGI Properties.
Goodliving, through its lawyers Moyo and Jera Legal Practitioners, have also alleged that Justice Smith had refused to recuse himself from the matter, in which he had indicated he was an interested party.
The company is now seeking to have Justice Smith stopped from conducting himself as an arbitrator in the matter and the suspension of his arbitral award, which it claims was done in contravention of public policy of Zimbabwe because it disregarded an earlier judgment on the matter by the High Court.
“The court order, under HC 4445/16, has an effect of declaring the actions of the third respondent (Justice Smith) contrary to the public policy of Zimbabwe,” part of the founding affidavit by Darryn Mpozori, representing Goodliving, read.
“It confirmed that the third respondent abdicated and abandoned his duties against the dictates of the Arbitration Act. The court orders are attached hereto as annexures A2 and A3 respectively.”
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According to the court papers, Goodliving and Adam and Company entered into a 15-year partnership agreement on January 10, 2010 and a commercial lease dated August 26, 2010. The agreement was supposed to be renewed every three years. In the agreement, the claimant was supposed to get 33% of revenue collected from rentals at 147 Mbuya Nehanda Street after renovating the property owned by Adam and Company, which would get 67%.
But the respondent cancelled the agreement and started collecting rentals alone after three years before the complainant recouped its investment. This triggered a legal battle, with Justice Maxwell Takuva on September 10, 2013 under HC 7215/13 ordering the parties to revert to their earlier agreement.
After several legal battles, including battles with tenants at the rent board, the matter was then handled by Justice Smith, who proceeded to give an arbitration award disregarding Justice Takuva’s ruling. Goodliving then asked Justice Smith to recuse himself alleging that he had indicated that he was an interested party.
In another judgement by Justice Priscilla Chigumba on November 23, 2016, the High Court ruled that Justice Smith had abdicated his duties by directing that a panel of independent arbitrators, Lovemore Mahuku and retired judge, Justice Moses Chinhengo should determine the application for recusal. She ruled that such a practice was against public law.
In his letter to Moyo and Vera Legal Practitioners dated November 29, 2016, Justice Smith said he was an interested party because he was the arbitrator in the case. He also denied that he abdicated his duties, saying he respected the court process, but was convinced the judge ruled without adequate information.
“In the circumstances, I deny that I am barred from adjudging over the issue. As this matter has dragged for more than two years, I consider that in the interest of justice, a determination should be made as soon as possible,” Justice Smith wrote.
But Moyo and Vera, in their response dated November 30, 2016, accused Justice Smith of being biased because he had an interest that was blurring his impartiality.
A date for the hearing is yet to be set. The first and second respondents are represented by Mwonzora and Associates.
