Clause 69.3 of the Zimbabwe General Conditions of Contract

Clause 69 of the Zimbabwe General Conditions of Zimbabwe regulates the settlement of disputes. It is common cause that a dispute exists when one party to a contract maintains one point of view and the other party the contrary or a different one.The term dispute is synonymous with the word disagreement. Thus, clause 69.3 of the Zimbabwe General Conditions of Contract deals with the resolution of disputes or differences arising from works of civil engineering construction.

In terms of Clause 69.3 of the Zimbabwe General Conditions of Contract if either the Employer or the Contractor is unwilling to accept mediation or is dissatisfied with or unwilling to accept the opinion expressed by the mediator, in such case either the Employer or the Contractor may within 28 days after receiving notice of such proposal or decision require that the mall be referred to arbitration, by a single arbitrator.

The High Court in Conforce (Pvt) Ltd v City of Harare 2000 (1) ZLR 445 (HC) observed that:

"The agreements were governed in certain terms by the terms embodied in the General Conditions of Contract, a standard set of terms applicable to works in civil engineering constructions. In terms of clause 69.3 of the General Conditions of Contract, any dispute between the parties would be settled by arbitration if attempts at mediation failed. Disputes indeed arose in respect of all the agreements. The disputes were about claims for delays and damages and they were of a similar nature. Mediation must have failed."

A precondition to arbitration in respect of Clause 69.3 of the Zimbabwe General Conditions of Contract is that mediation should have failed. In such case, either the Employer or Contractor may refer the dispute for arbitration. Furthermore, the parties can agree on the arbitrator.

In the event that the parties fail to agree on the arbitrator, pursuant to Clause 69.3 of the Zimbabwe General Conditions of Contract (ZGCC4) either party may make a written application to the President for the time being of the Zimbabwe Institution of Engineers to nominate a suitable arbitrator to determine the dispute or difference between the parties.

The President of the Zimbabwe Institution of Engineers is contractually required in terms of Clause 69.3 of the Zimbabwe General Conditions of Contract (ZGCC4) to consult the Chairman of the Zimbabwe Association of Consulting Engineers(ZACE") and the President of the Federation of Civil Engineering Contractors in making the nomination of the sole arbitrator.