The first respondent obtained an arbitral award which was subsequently registered with the magistrate's court. The appellant was served with a Warrant of Execution. Following service, the appellant applied to the magistrate's court for a stay of execution of the arbitral award pending re-quantification of the award by the arbitrator. The magistrate's court dismissed the application for stay of execution. The appellant initially had attempted to register the award in the High Court but that attempt was withdrawn. The award fell within the Magistrate's jurisdiction and the registration was proper. After argument was heard and judgment reserved, the appellant sought to withdraw the appeal on 11 June 2015 by correspondence filed on 12 June 2015.
The appeal was dismissed with costs on an attorney and client scale.
Once an arbitrator has quantified an award, the arbitrator becomes functus officio and cannot embark on a re-quantification process. A court will not grant a stay of execution of a registered arbitral award where there is no valid pending proceeding - the court cannot grant interim relief "pending nothing". A properly registered arbitral award within the magistrate's court jurisdiction may be executed, and the magistrate's court has no basis to stay execution where the arbitrator is functus officio.
The court made observations regarding the awarding of costs de boniis propriis against legal practitioners. While such costs should be awarded where there is clear abuse of court process coated with dishonesty and unethical conduct, the court should distinguish between situations where counsel acts out of ignorance versus wanton disregard. The court noted that costs de boniis propriis are appropriate to admonish abuse of court process by parties who pursue matters where it is obvious and apparent there is no case, particularly when such abuse is clearly coated with dishonesty and unethical conduct. The court referenced Moyo and Anor v Hassbro Properties (Pvt) Ltd and Another 2010 (2) ZLR 194 H and Macro Plumbers Pvt Ltd v Sheriff Zimbabwe NO and Owen Chigaya HH 57/15 as authorities on this point.
This case clarifies the doctrine of functus officio as it applies to arbitrators in Zimbabwean law, establishing that once an arbitrator quantifies an award, they cannot re-quantify it. The case also illustrates the principles governing when costs de boniis propriis may be awarded against legal practitioners for abuse of court process, and demonstrates judicial discretion in distinguishing between conduct arising from ignorance versus willful unethical behavior. It provides guidance on the proper procedure for challenging or staying execution of registered arbitral awards.