NSSA Arbitrator Removal: High Court Rejects Bid in Beitbridge Hotel Case

• The National Social Security Authority (NSSA) failed in its High Court bid to remove arbitrator Audily Chatora from a US$49.1 million dispute.
• Justice Lucy Mungwari ruled on November 5, 2026, that NSSA's complaints about procedural decisions did not establish arbitrator bias.
• The dispute involves Ceezed Construction's claim for US$49,145,619.15 against NSSA for the Beitbridge Hotel project.
• NSSA argued that Arbitrator Chatora's Procedural Order No. 4, issued without a hearing, created an apprehension of bias.
• The High Court determined that the procedural order did not bar NSSA from calling witnesses but merely required justification.

Justice Mungwari underscored that a court cannot simply remove an arbitrator because one party is dissatisfied with procedural rulings.

The National Social Security Authority (NSSA) recently failed in its attempt to remove the arbitrator overseeing a substantial US$49.1 million dispute concerning the construction of the Beitbridge Hotel. High Court Judge Justice Lucy Mungwari, in a ruling issued on November 5, 2026, determined that NSSA's objections, which centered on procedural decisions made by the arbitrator, Audily Chatora, did not provide sufficient evidence of bias. This decision allows Chatora to continue presiding over the arbitration, which involves corporate rescue practitioners for Ceezed Construction (Private) Limited seeking a significant sum from the pension authority.

Justice Mungwari underscored that a court cannot simply remove an arbitrator because one party is dissatisfied with procedural rulings. The judge explicitly stated that the court's role, under Article 13(3) proceedings, is not to preempt an arbitration ruling or to rectify a procedural order by removing the arbitrator. This ruling reinforces the principle that mere unhappiness with an arbitrator's conduct of proceedings does not automatically translate into a finding of prejudgment or favoritism.

The core of the arbitration involves a claim for US$49,145,619.15 brought by the corporate rescue practitioners of Ceezed Construction, formerly known as Costain Zimbabwe. This substantial claim arises from a contract awarded by the State Procurement Board on April 1, 2010, for the construction of the Beitbridge Hotel for NSSA. The initial tender price for the project was US$17.37 million.

Upon the hotel's completion, the contractor presented a final statement of account totaling US$34.76 million, which was nearly double the original contract price. The current arbitration seeks an additional US$14.37 million beyond this final statement, with the claimants asserting that this amount was quantified using accounts linked to the project's quantity surveyor and architect. A pivotal question in the ongoing arbitration is whether a valid final account was ever issued, as this will determine if the construction company's claim falls within the stipulated contractual time limits. NSSA contends that the project architect issued a final account in February 2016, rendering the contractor's claim out of time, a position disputed by the corporate rescue practitioners who argue no valid final certificate was issued and the architect remains responsible for its completion.

The arbitration proceedings became contentious when the claimants sought to have the project architect, Arthur Matondo, testify regarding the issuance of the final account. NSSA opposed this, arguing that the architect's testimony could effectively predetermine the central issue of the dispute. Arbitrator Chatora initially ruled that Matondo could not be joined as a party but could provide expert testimony. However, the situation escalated with the issuance of Procedural Order No. 4 on October 10, 2025.

This order, which mandated that NSSA seek permission before introducing its own witnesses, was issued without either party having requested it or been afforded an opportunity to be heard. NSSA interpreted this action as a restriction on its ability to challenge the architect's evidence and a sign that the arbitrator was siding with the corporate rescue practitioners. The authority subsequently challenged Chatora's impartiality, but the arbitrator rejected this challenge on November 10, 2025, prompting NSSA to escalate the matter to the High Court. NSSA, describing itself as a custodian of public pension funds, argued that the arbitrator's conduct created a reasonable apprehension of bias and suggested it was being steered towards a predetermined outcome through a "murky process."

Justice Mungwari's ruling clarified the stringent criteria for challenging an arbitrator's impartiality in Zimbabwe, particularly when the basis is dissatisfaction with procedural decisions. The High Court found that while Arbitrator Chatora had indeed issued a procedural order without first hearing the parties, this action alone did not conclusively demonstrate that he had prejudged the dispute or shown favoritism towards Ceezed Construction. The court noted that Procedural Order No. 4 did not, in fact, bar NSSA from calling witnesses or reject any proposed evidence. Instead, it merely required NSSA to identify its intended witnesses, explain the relevance of their testimony, and justify the timing of its introduction.

This judgment reinforces the principle of limited judicial intervention in ongoing arbitrations, emphasizing that mere unhappiness with an arbitrator's procedural orders is insufficient for recusal. It sets a high bar, requiring actual evidence of prejudgment or favoritism rather than perceived restrictions on a party's strategy. The decision signals to legal practitioners that challenges to an arbitrator's impartiality must be grounded in substantive evidence of bias, not simply in disagreement with the conduct of proceedings.

This ruling clarifies the high threshold for challenging an arbitrator's impartiality in Zimbabwe, particularly when based on procedural decisions. Lawyers advising clients in arbitration should note that mere dissatisfaction with an arbitrator's procedural orders is insufficient for recusal; actual evidence of prejudgment or favouritism is required, reinforcing the principle of limited judicial intervention in ongoing arbitrations.

Source: Original reporting via Zimbabwean legal news