Buhera Rural District Council v Zimbabwe Rural District Councils Workers Union & Anor

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/121/25
ZIMBABWE HELD AT HARARE 11
MARCH 2025
CASE NO. LC/H/44/25
AND LC/H/25/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 11 MARCH 2025

JUDGMENT NO. LC/H/121/25 CASE NO. LC/H/44/25

AND LC/H/25/25

IN THE MATTER BETWEEN:

BUHERA RURAL DISTRICT COUNCIL	APPLICANT AND

ZIMBABWE RURAL DISTRICT COUNCILS	FIRST RESPONDENT WORKERS UNION

DOUGLAS CHINOPEREKWEI	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For the Applicant/Appellant	Mr. I. Gonese with Mr. F. Muzeya

For the Respondent	Mr. J. Zviuya

MURASI J.,

The matter before me is an application for review under case number LC/H/ 44/25, conjoined with an appeal under case number LC/H/25/25. The two matters were initially filed separately on the IECMS platform, however, they were ultimately consolidated due to their derivation from the same factual circumstances and decision. At the outset of the proceedings, the Court informed the parties that it would first consider the application for review, followed by the appeal.

THE REVIEW: LC/H/44/25

Points in limine

At the commencement of these proceedings, Mr. Gonese, appearing on behalf of the first respondent, raised two additional preliminary points, supplementing those set forth in the papers.

The first point was to the effect that the present application falls foul of Rule 19(3) of the Labour Court Rules, 2017 (“The rules”), which stipulates that, where a party is dissatisfied with both the procedure and substantive part of a decision, the party must concurrently file an appeal and an application for review. It was submitted that this rule is couched in peremptory language, as indicated by the term "shall," and that the applicant's non-compliance renders the review improperly before the Court. The second issue raised pertained to the absence of the record of the proceedings before the arbitrator, which the counsel argued was vital in aiding the Court to make an informed decision on the issues in dispute. With respect to the third preliminary point, which appears on page 38 of the consolidated record, the first respondent took issue with the commissioning of the applicant’s founding affidavit. The argument advanced in this regard is that the commissioner of oaths’ stamp does not clearly identify the name of the person who is alleged to have commissioned the affidavit. It was further submitted that the application ought to be struck off from consideration on this basis. The fourth point in limine raised relates to the absence of a board resolution authorizing the deponent to represent the applicant in the matter. It was prayed that the application be struck off the roll in this regard. The last point in limine concerns the applicant’s omission to include an alternative email on the IECMS platform. It was argued that this omission was fatal to the application as the rule providing for it is a peremptory one.

In response to the first issue, Mr. Zviuya, for the applicant, contended that Mr. Gonese’s interpretation of rule 19 (3) was excessively strict. He further submitted that the phrase ‘at the same time’ should be construed to mean within the same period, specifically the 21-day period within which a review and an appeal ought to be filed in terms of the rules. Mr. Zviuya further indicated that both the review and the appeal, although not filed simultaneously, were nonetheless compliant with the relevant rules governing them. He further implored the Court to exercise its discretion in terms of rule 32 of the Labour Court Rules and condone the purported non- compliance with the rules. With respect to the second point in limine, Mr. Zviuya submitted that the record of proceedings was not in the applicant’s possession and emphasized that it was the responsibility of both parties to ensure the record of proceedings was made available in terms of the rules. Furthermore, he indicated that the arbitrator’s determination had comprehensively captured the submissions of both parties relevant to the determination of the issues at hand, thus enabling the Court to make a well-informed decision. The points in limine raised in the papers are not addressed by the applicant.

DETERMINATION ON PRELIMINARY POINTS

It is my considered view that the points in limine raised by the first respondent in the present matter lack the requisite potency to decisively influence the outcome of the proceedings. None of the points evince a substantive intent that would warrant their characterization as dispositive of the matter.

In Telecel Zimbabwe (Pvt) Ltd v Potraz & Ors HH 446-15, Mathonsi J (as he then was) aired the following sentiments as regards the propriety of preliminary points raised:

“A preliminary point should only be taken where firstly it’s meritable and secondly it is likely to dispose of the matter. The time has come to discourage such a waste of Court’s time by the making of endless points in limine by litigants afraid of the merits of the matter or legal practitioners who have no confidence in their client’s defence viz-a-viz the substance of the dispute, in the hope that by chance, the court may find in their favour. If an opposition has no merit. It should not be made at all.”

See also Warren Hills Golf Club v Sunshine Development Club, City of Harare & The Registrar of Deeds N.O. HH 623-23 at p 3 and 4.

I firmly believe that the High Court judgments cited above offer invaluable insights into the considerations that should guide the Court’s evaluation of points in limine. Specifically, they emphasize that points in limine ought to be supported by legitimate legal reasoning and sound arguments that can effectively dispose of the matter. In this context, having considered the points in limine raised, both orally and in written submissions, I am not persuaded to dispose of the matter on technical grounds. I will further clarify this finding forthwith.

Regarding the first point in limine, while I acknowledge that rule 19(3) mandates the simultaneous filing of an appeal and a review in circumstances such as these, it is my firm view that the separate filing of the two, if done expediently and within the timelines prescribed in the rules, does not result in any prejudice to either of the parties. Further, I am inclined to exercise my discretion, pursuant to rule 32 of this Court’s rules, to depart from strict adherence to the rules in the interest of justice, provided that such departure does not prejudice either party. Notably, during submissions, counsel for the first respondent did not argue that the separate filing of the matters prejudiced them in any way. Moreover, I believe the subsequent consolidation of the appeal and the review remedied the situation.

In Mapondera & 55 Ors v Fredda Rebecca Gold Mine SC 81-22 at p 8, the Court articulated the following pertinent remarks:

“It is therefore clear from the authorities that the primary function of the court a quo is to do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law are beginning to mellow and drift towards the idea of correction of simple procedural errors in order to do real and substantial justice.When interpreting statutes and codes of conduct, the court a quo should endeavor to give a broad liberal interpretation that is not embroiled in flimsy legal technicalities in order to achieve social justice based on equitable labour standards...”

Further, in Dalny Mine v Banda 1991 (1) ZLR 220 (S) at 221, the Court held as follows:

“As a general rule, it seems to me undesirable that the labour relations matters should be decided on the basis of procedural irregularities. By this I do not mean that such irregularities should be ignored, I mean that the procedural irregularities should be put right…”

In view of the sentiments expressed in the Mapondera case (supra), I am inclined to adopt a broad liberal interpretation of Rule 19(3). In addition, in the Dalny Mine case (supra), a significant remark was made suggesting that if the court has the means to correct any procedural irregularities and adjudicate the substantive issues, it should make every effort to do so instead of being swayed by procedural technicalities. Consequently, this point in limine is not dispositive of the matter and ought to be dismissed.

As regards the second point raised, while I am alive to the importance of availing the record of proceedings, I note that the main issue for determination in this review concerns the jurisdiction of the second respondent and the procedural correctness of his determination. It is my view that these particular issues are not dependent on the record of proceedings. To this end, I am fortified by the remarks made in the case of Anchor Publishing Co (Pty) Ltd v Publications Appeal Board 1987(4) SA 708 (N) 728D-E, wherein a reference was made to the ruling in Maphosa v The State HH 323-13, which stated that:

“An election to appeal confines the legal practitioner to matters reflected in the record of proceedings. On the other hand, where he is to proceed by way of notice of motion seeking a review of the proceedings then counsel would have brought under review other matters which do not appear ex facie the record by way of affidavit.”

It is clear that the question of jurisdiction in the context of a review does not always require the inclusion of the record of proceedings as it does not necessarily appear ex facie the record. I am

also of the view that the submissions by the parties, as captured in the second respondent’s determination suffice in aiding this Court to make an informed decision on this issue. Consequently, while this preliminary point would hold some merit in the context of an appeal, it does not determine the outcome of the review and ought to be dismissed.

The third preliminary point concerns the commissioning of the founding affidavit. The argument advanced in this light is that the commissioner’s stamp does not identify the name of the person who commissioned the affidavit and therefore, the affidavit was improperly commissioned.

In the case of First Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd 2015 (1) ZLR 94(S) at 98 C- 99A, Patel JA (as he then was) with the concurrence of Ziyambi and Garwe JJA said:

“It is common cause that there is no specific legislation regulating the issue in this jurisdiction and that the matter is one that is governed by practice. In that regard, what is required is that any stamp that is used to designate a Commissioner of Oaths should clearly identify the person before whom an affidavit is deposed and the office or capacity in which he or she acts as a commissioner. In casu, it is not disputed that Raymond Moyo is a legal practitioner and a notary public and, as such, a recognized commissioner of oaths.”

What is clear in light of the above precedent is that, ultimately, there should be no doubt as to the identity or office of a commissioner of oaths. In casu, the first respondent expressed concern over the lack of a clearly indicated name on the commissioner’s stamp. It is my view that this issue is adequately addressed by the affidavit found on page 73 of the record, which clarifies the identity of the individual who commissioned the founding affidavit. In this affidavit, Watson Belo identifies himself as an assistant inspector at Murambinda Police Station and attests to the fact that he commissioned the founding affidavit in this case. Further, the same signature is appended in both the founding affidavit and the supporting affidavit on page 73, confirming that Watson Belo is indeed the individual who signed both documents. Having established this position, it becomes clear that the preliminary point raised in this regard lacks merit and should be dismissed. Logically, the date stamp of the holder of the office of Officer in Charge of a Police Station cannot contain the name of the person but the designation.

With regards to the issue raised pertaining to the absence of a board resolution authorizing the deponent of the founding affidavit to represent the company, I do not consider it necessary to elaborate extensively on the issue. This is because the record contains minutes of a resolution, filed at page 10, which clearly establishes that Ishmael Jachi was duly authorized to act on behalf of the

company. I also noted from the record that Ishmael Jachi is the person who had been representing the company in the arbitration process. In this light, I consider this issue to be effectively moot.

The last issue raised by the first respondent pertains to the absence of an alternative email from the applicant as required by the rules. As stated earlier, the first respondent did not in this regard point this Court to any prejudice suffered due to this omission and therefore the Court will not be detained by this technicality.

In Edmore Taperesu Mazambani v International Trading Company (Private) Limited and Anor

SC 88-20 MATHONSI JA had occasion to comment on the issue in the following manner:

“This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities.”

It is my considered view that this point in limine is not dispositive of the matter and therefore, ought to be dismissed. I will now turn to the merits of the application.

THE MERITS

In as far as the merits are concerned, the applicant seeks the setting aside of the Arbitral Award issued by the Second Respondent on the 17th of December 2024, as it quantified an award that he had already issued and quantified earlier. The application is premised on the following grounds:

There was a gross irregularity in the proceedings in that the Arbitrator entertained the matter when he was no longer had jurisdiction to do so as he became functus officio when he issued the initial award which was final and definitive in nature.

The Arbitrator grossly misdirected himself procedurally in purporting to revive his jurisdiction without the Applicant’s consent which consent Applicant expressly withheld.

The Arbitrator grossly misdirected himself in purporting to correct his award when it was common cause that the timelines for making such correction in terms of Article 33 of the Arbitration Act had since lapsed.

There was a gross irregularity in the proceedings in that the Arbitrator violated the audi alteram partem rule in purporting to quantify his initial award and ordering payment of specific amounts without Appellant’s input or involvement.

The Arbitrator’s decision and conclusion on the facts and law is so grossly unreasonable in its defiance of logic or acceptable moral standards such that no sensible and fair minded person faced with the same facts would have come to such a decision.

BACKGROUND FACTS

Sometime in 2023, the first respondent and the applicant referred a labour dispute pertaining to salary increments for compulsory arbitration. The second respondent (“The arbitrator”), adjudicated over the matter and issued an award on the 18th January 2024. Subsequently, on the 25th of January 2024, the arbitrator issued a second award, which purported to quantify the first award, without the applicant's involvement or an opportunity to be heard. The first respondent attempted to register the award in the High Court under case number HCMTC 49/24, but was unsuccessful because the award was not sounding in money and therefore not registrable. Upon the realization of this impediment, the first respondent requested the arbitrator to re-quantify the initial award. Following this, the applicant was served with a Notice of Hearing from the arbitrator, calling for submissions from the parties regarding the quantification. The applicant initially objected to appearing before the arbitrator, arguing that having fully discharged his mandate as per the terms of reference, he was now functus officio. Despite initial reservations, the applicant participated in the hearing, reiterating its objection that the arbitrator lacked jurisdiction to determine the quantification of this particular award. The arbitrator dismissed this preliminary objection, relying on an implied direction from the High Court to proceed with quantification. The arbitrator proceeded to quantify the award without the applicant’s input, relying solely on the first respondent’s submissions. The applicant is aggrieved by this quantification process and seeks relief from this Court.

SUBMISSIONS BY THE PARTIES

Mr. Zviuya, submitted that he would largely abide by the papers filed of record. The gist of his submissions were that the arbitrator lacked the jurisdiction to proceed to quantify the award of 17th of December 2024 as he was now functus officio. The applicant cited a plethora of case authorities to this end. It was further submitted that the arbitrator’s purported assumption of jurisdiction from article 33 of the Arbitration act [Chapter 7:15] to make additions to his initial award was not applicable, as the prescribed timelines had prescribed. The counsel argued that an arbitrator derives jurisdiction from section 98 of the Labour Act [Chapter 28:01] through referral by either a Labour Officer or designated agent and in the present case, no referral was made in terms of the provision of section 98. It was further submitted that the arbitrator’s decision was grossly unreasonable as he had proceeded to quantify the award in the absence of the applicant’s submissions on the merits. The audi alterum partem rule is averred to have been infringed.

In response, Mr. Gonese, stated that he would abide by the Heads of Arguments filed of record. He sought to argue that the applicant placed heavy reliance on the case of Zesa Holdings (Private) Limited v Clovegate Elevator Company (Private) Limited and Anor SC 69-23, which is distinguishable from the present case. He advanced the argument that the award in the Zesa case had been registered and therefore was a complete and final award. He further submitted that the award in casu was incomplete as it was not quantified. Counsel further argued that the second award was set aside by implication from the High Court’s decision and was no longer extant. It was counsel’s submission that the arbitrator had revived his jurisdiction from the High Court judgment which held that the first award was not registrable because it was not sounding in money. He referred the Court to case law. As regards the infringement of the audi alterum partem rule, the counsel submitted that the applicant had been afforded an opportunity by the arbitrator but refused to make submissions on the merits, insisting that the arbitrator lacked the jurisdiction to adjudicate the matter.

ISSUE FOR DETERMINATION

Although the applicant has submitted five grounds for review, it is my view that the essence of the matter distills to one pivotal issue, whether or not the arbitrator possessed the jurisdiction to render the third award. The resolution of this issue, in my view, hinges on a critical determination: whether or not the arbitrator had become functus officio, and if so, at what point this occurred.

THE APPLICABLE LAW

In Matanhire v BP Shell Marketing Services (Pvt) Ltd 2005 (1) ZLR 140 (S) at 146 C-F, the Court in shedding light on the functus officio principle held that:

“The law on this point is very clear in that once a matter has been finalized by a Court, that Court becomes functus officio. It has no authority to adjudicate on the matter again. The only Jurisdiction that a Court has is to make incidental or consequential corrections. The position was stated as follows in the case of Kassim v Kasim 1989 (3) ZLR 234 (H) at p 242 C-D, where it was stated that:

“In general, the Court will not recall, vary or add to its own judgment once it has made a final adjudication on the merits. This principle is stated in Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306, where TROLLIP JA stated;

“The general principle, now well established in our laws, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: Its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.”

Further, in Unitrack (Pvt) Ltd v Telone (Pvt) Ltd SC 10-18 at p 4, the Court clarifies that the principle of functus officio applies to Courts and judicial officers alike in the following manner:

“It is a general principle of our law that once a Court or judicial officer renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or legal authority to re-examine or revisit that decision. Once a decision is made, the term “functus officio” applies to the court or judicial officer concerned.”

More so, it was held in the case of Muvuti Investments v Old Mutual HH 422-18 as follows:

“An arbitrator’s role ends when he has rendered an award. Where an arbitrator has made a mistake in issuing an award, he becomes functus officio as regards questions decided by his award. He may not reconsider his decision or amend and or modify the award without the consent of the parties. He may amend only patent mistakes apparent on the face of the award that relate to mathematical and grammatical mistakes. An arbitrator, who has made an award, has no jurisdiction to change his mind. An Arbitrator who changes his award issues a new award.”

Furthermore, in Chirambasukwa v Ministry of Justice 1998 (2) ZLR 567 (5) at 569 E-G the Court stated the following:

“The issue to be determined is the stage at which the decision maker becomes functus officio. In my view, he or she becomes functus officio when his or her decision has been officially communicated to the person affected. In my view, until the decision has been officially communicated to the person affected, the decision maker can vary, revoke or suspend it. However, when it is officially communicated to the person affected, the point of no return is reached.”

Pertaining to the Audi Alterum Partem rule, the court held in the case of Taylor v Ministry of Education & Anor 1996 (2) ZLR 772 (S) that the audi principle applies both where a person’s existing rights are adversely affected and where he has legitimate expectation that he will be heard before a decision is taken that affects some substantive benefit, advantage of privilege that he expects to acquire or retain and which it would be unfair to deprive him without first consulting with him.

Article 33 of the model law in the Arbitration Act provides as follows:

“Correction and interpretation of award: additional award

Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties—

a party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature;

if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.

If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within thirty days of receipt of the request. The interpretation shall form part of the award.

The arbitral tribunal may correct any error of the type referred to in paragraph (1) (a) of this article on its own initiative within thirty days of the date of the award.

Unless otherwise agreed by the parties, a party, with notice to the other party, may request, within thirty days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award within sixty days.”

APPLICATION OF THE LAW TO THE FACTS

It is beyond dispute that the first respondent possessed a complete and final award when it approached the High Court for registration purposes. To suggest otherwise would defy logic. The plethora of case law cited in this judgment and in the applicant’s Heads of Argument reinforces the legal principle that an arbitrator, like a Court, becomes functus officio upon issuing a final and complete award. The question as to at which point specifically an award assumes the status of completeness has been addressed in the case of Chirambasukwa v Ministry of Justice (supra). An arbitral award is complete and final upon its communication to the parties and upon the disposition of all the issues raised in the parties’ terms of reference, after which a point of no return would have been reached.

Mr. Gonese attempted to distinguish the Zesa v Clovegate case (supra), heavily relied upon by the applicant, by implying that the award in that case was complete only because it was registered. However, this assertion is misplaced. An arbitral award attains finality and completeness upon its communication to the parties, when all the terms of reference have been addressed, not upon registration. In that light, any subsequent corrections to the award are limited to patent errors apparent on the face of the award, such as typographical or grammatical errors or an interpretation

of the award if both parties are in agreement. A re-quantification of the award, on the other hand, constitutes the issuance of a new award, which exceeds the arbitrator’s jurisdiction once they become functus officio.

In casu, notwithstanding any disputes regarding the completeness or finality of the first award of January 18, 2024, the second award’s completeness and finality is indisputable, as it quantified the sums awarded as per the parties’ terms of reference. It was also clearly communicated to the parties for the purpose of enforcement. What this entails is that the arbitrator undoubtedly became functus officio upon issuing this award. He had fully discharged his mandate in terms of the parties terms of reference and his jurisdiction to make any further considerations regarding the matter had ceased. Mr. Gonese made a concession that the second award had indeed been quantified. However, he sought to argue that the award had been withdrawn at the High Court due to its infraction of the audi alterum partem rule, hence it was no longer extant. In this light, he further sought to argue that the arbitrator’s jurisdiction to issue the third award had been revived from an implied directive by the High Court to re-quantify the first award so that it could be registrable. He maintained that the first respondent had correctly approached the arbitrator again to rectify this issue.

A careful reading of the High Court Judgment reveals that the Court did not pronounce itself on the validity of the second award as it had been withdrawn. Rather, it made a passing comment relating to it. There is no order on the face of the judgment setting aside the second award or remitting the matter back to the same arbitrator for re-quantification. The law on orders issued by the judicial officers dictates that they are extant until they are set aside on appeal or review. This was elucidated in Clothing Industry Pension Fund v Dare & Anor SC 47/24, at page 8, wherein BHUNU JA held that: -

“The appellant sealed its own fate when it accepted the arbitrator’s award and partially complied with it. It cannot therefore be found in the appellant’s mouth that it cannot be bound by the award when it stands undisturbed, valid, extant and binding. In the case of Mkize v Swemmer 1967 SA 186 at p 197 C - D it was held that judicial decisions are binding until set aside on appeal or review. In this case the award is extant. It was never set aside either on appeal or review.”

In this light, the sheer withdrawal of the second award during the High Court proceedings does not have the legal effect of setting that award aside or rendering it a nullity. Evidently, the second award is still extant, contrary to Mr. Gonese’s submission.

The reliance by both the first and second respondents on the High Court’s obiter dictum is untenable at law. There is a fundamental difference between an obiter dictum and a ratio decidendi. Obiter dicta is usually translated to mean “that which is said in passing.” See Bryan A Garner, ed, Black’s Law Dictionary, 11th ed (Thomson Reuters, 2019). On the other hand, the ratio decidendi is just that portion of the judgment in which a legal rule interacts with the facts to produce an outcome that resolves the dispute between the parties. The portions of the judgment that do not contribute to a final resolution of the dispute between the parties therefore lack binding force. See “Dictum Revisited,” (1952) 4 Stan L Rev 509 at 512. A reading of the High Court order, in this light, reveals that the Court did not decide on the validity of the second award thereby rendering it still extant. Having established that the second award is still standing, it follows that the arbitrator had fully pronounced himself on this matter and by so doing, extinguished his jurisdiction to adjudicate on the same matter a second time.

The question therefore remains, in relation to the issuance of the third award, where did the arbitrator derive his jurisdiction from? He purports to have assumed jurisdiction upon reference of the matter to him by the first respondent which he notes is in terms of the Arbitration Act. He however neglects or omits to cite the specific provision in the Act to this effect. I find it pertinent to reiterate the provisions of section 98 of the Labour Act to the effect that an arbitrator’s jurisdiction is derived from the terms of reference provided to him or her by a Labour Officer, Designated Agent, or the parties themselves. It is also trite that an arbitrator cannot assume jurisdiction based on a referral by one party where the other objects. In terms of article 33 (1)(b), a request by a party for an arbitral tribunal to give an interpretation of a specific part of the award ought to be done if the parties so agree and on notice to the other party. The objection of the other party in this matter is evident. Consequently, it becomes apparent that the arbitrator conjured his jurisdiction from thin air and issued a notice of hearing to the parties’ ultra vires the provisions of the Labour Act as read with the Arbitration Act.

Further, there is a portion in the arbitrator’s ruling which seeks to suggest that his jurisdiction stemmed from the exceptions to functus officio provided for in article 33 of the model law in the Arbitration Act. I am alive to the provisions in article 33, however, I should hasten to state that the exceptions contained therein are not applicable as far as the third award is concerned. As rightly submitted by the applicant’s counsel, the exceptions stipulate clear timelines within which any

correction, alteration or addition to an award can be made. After the lapsing of the maximum 60 day period, no alteration, correction, addition, interpretation or addition to the second award could have been made. The third award, which is the subject of this review, was only issued about11 months after the first and the second award had been issued. This cannot be regarded as a procedural correction or rectification of the initial award by any stretch of the imagination. Further, Article 33 mandates that a matter may only be referred to an arbitrator for correction or interpretation of an award if the parties so agree and on notice to the other party. This notice does not appear on the record, and the applicant’s counsel confirmed that they were not given the requisite notice. The arbitrator clearly misdirected himself by assuming jurisdiction in the circumstances.

DISPOSITION

It is clear as day that the arbitrator exceeded his mandate by so issuing the award of the 17th of December 2024. His jurisdiction had ceased as he was now functus officio. This finding is dispositive of the application for review, which must therefore be granted. In light of this, it is unnecessary to proceed to determine the appeal, as it raises the same issues for determination.

The following order is appropriate.

The application for review is hereby allowed.

The decision of the arbitrator dated 17 December 2024 be and is hereby set aside.

The respondent to meet the applicant’s costs on the ordinary scale.

Bere Brothers	- Applicant’s legal practitioners

Lawman Law Chambers    - First Respondent’s legal practitioners.