IN THE HIGH COURT OF ESWATINI
HELD AT MBABANE
CASE NO. 1249/2018
In the matter between:-
SWAZILAND MEDICAL AID FUND Applicant
JUDGE PHILLP LEVINSOHN N.O. First Respondent
MEDSCHEME ADMINISTRATORS SWAZILAND
(PTY) LIMITED Second Respondent
Neutral Citation: SwaziMed Medical Aid Fund v Medscheme Administrators
N.O.(1249/2018) SZHC 33 (05/03/2020).
CORAM : MAMBA J, MAPHANGA J, TSHABALALA J
HEARD : 7th August 2019; 30th September 2019
& 1st October 2019
DELIVERED: 5th March 2020
Summary: Arbitration – Review of Award – sections 152 as read with section 21 of Constitution of Swaziland- whether it creates new jurisdiction and procedure for the review and setting aside of Arbitral Award.
Arbitration – Review of Award- Arbitration Act 1904 the principal legal framework regulating the conduct of arbitrations in the Kingdom; Section 15 providing for remission of award whereas Section 16 providing for the review and setting aside of an arbitration award on limited grounds – subject to the common law powers of the Court to review arbitration awards on grounds of excess of jurisdiction.
Arbitration- Review of Award – scope of the arbitrators power defined by the submission; where the submission confines the jurisdiction to issues defined therein, arbitrator may not travel outside his jurisdiction without the agreement either express or implied of the parties.
Arbitration – Review- Ambit of submission amended by the parties upon inception of Arbitration limiting the dispute to be determined to issues set out in the pleadings – Claimant seeking to rely on a construction of a commercial contract not specifically pleaded in its statement of claim or in the pleadings; Arbitrator award premised on such construction going outside the pleadings thus exceeding his jurisdiction in terms of the submission rendering award suscpetible to be set aside- Dispute referred to a new arbitrator
 This is an application to set aside an arbitration award of the arbitrator sitting as a single arbitrator in a submission by the parties. The award was made and published by the arbitrator, the Hon Mr. Justice Phillip Levinsohn on the 29th March 2019 at the conclusion of the arbitration which was conducted between October and February 2018. In it the learned arbitrator issued the award in favour of the Respondent Medschem Administrators Swaziland (Pty) Limited (Medscheme), dismissed certain counterclaims by the applicant, Swaziland Medical Aid Fund (SwaziMed). The learned arbitrator also awarded costs of the arbitration against SwaziMed. The elements of the award as well as the issues arising therefrom shall be set out further.
 The arbitrator, a retired judge, has been cited as the first respondent in these proceedings. He has not opposed the application nor has he filed any report in that regard and as such he is not participating as a party in these proceedings.
 This matter comes before this court constituted as a full bench at the special instance and application by the applicant on account of the peculiarity of the foremost and principal basis of the application is grounded on reliance on sections 152 and 21 of the Consitution of the Kingdom of Swaziland (eSwatini) (‘the Constitution) ostensibly raising inter alia a constitutional question for determination by this court in its jurisdiction as a constitutional court under as envisaged by section 151 (2) (b) of the Constitution. Before going into the heart of the present proceedings it is convenient to lay out in brief the litigation history of this matter in the post- arbitration phase before the launch of this application.
Arbitration Enforcement Application.
 On the 3rd April 2018 Medscheme brought an application under Case No. 505/2018 for the enforcement of the arbitration award (enforcement application) as contemplated in terms of section 17 of the Arbitration Act of 1904 (the Arbitration Act). That application was opposed by Swazi Med on an assertion by it of a right to appeal the arbitral award although this approach seems to have been subsequently abandoned by SwaziMed; that being a matter that has no bearing on the present application for reasons that will appear in this judgment.
 The application for enforcement came before Mlangeni J during the course of which SwaziMed launched the present application for the setting aside of the arbitration award. The latter application has been referred to as the ‘review application’ in the papers although it is made plain by the application both in the manner in which the relief is formulated it advances a somewhat different course than an ordinary review in its form.
 In light of the review application and at Swazi Med’s application for the purpose, on 14 August 2019 Mlangeni J issued an order staying the enforcement application pending the outcome of the review.
 In the lead up to the hearing of this application (the review application) Medscheme brought an application for consolidation of the stayed enforcement application with that of the review in order to have, so to speak the two proceedings placed before this court in due course, ostensibly for reasons of convenience or expedience. In the process SwaziMed opposed the consolidation and filed opposing affidavits to challenge the approach with the result that it became the first business in the motions that this court became seized with.
 After hearing both parties’ submissions at the conclusion of the consolidation proceedings this court after a brief adjournment rendered an ex tempore (at the time) with reason to be furnished in the judgment for the main (review) application. I intend to return to this aspect and set out the reasons for courts decision in that regard in the course of this judgment. It is to this aspect that I turn momentarily.
 The respondent Medscheme advances a number of arguments in support of its application for the consolidation of the proceedings of the enforcement and review applications. By far the common theme is that for certain enumerated reasons it would be eminently convenient or expedient for both the court and the parties in the proper administration of the litigation in so far as it arises between the same parties and arises from substantially the same subject matter – the outcome of the arbitration award. To this end, so the argument goes, if the application for quashing the arbitration award fails, then Medscheme would have its way open to advance the enforcement of the arbitration award before the self same court.
In Swazi Med’s submissions:
 The cardinal rule regulating the consolidation of causes is set out in Rule 11 of the Rules of the High Court. It states:
11. Where separate actions have been instituted and it appears to the court convenient to do so, it may upon the application of any party thereto and after notice to all interested parties, make an order consolidating such actions, whereupon
(a) the said actions shall proceed as one action;
(b) the provisions of rule 10 shall mutatis mutandis apply with regard to the action so consolidated; and
(c) the court may make any order which to it seems meet with regard to the further procedure, and may give one judgment disposing of all matters in dispute in the said actions.
 Although the rule appears to react specifically to actions in its wording, there is good authority that it is a generic provision that the court enjoys a similar discretion on the basis of the rule as read with rule 6 (27) as pertains application proceedings.
 The enforcement and review are by their nature separate and or severable proceedings. The sought consolidation would not be incompatible with possible outcomes in the matters; which outcomes are sustainable in light of the order and possible scenarios that could result from the sequencing in the adjudication of the proceedings. Put another way if the review which in light of the order to stay the enforcement application, is succesful this would naturally yield the resullt that it would be dispositive of the enforcement application. However if on the other hand the review fails, there should conceivably no reason to preclude the same court proceeding to hear and adjudicate the enforcement application.
 On the SwaziMed’s side of the ledger, we were not furnished with cogent, let alone compelling reasons why the consodation of these proceedings should not be ordered. Conceivably what would constitute viable reasons not to consolidate these matters could include an instance where the nature of the involved different causes or is the object of the applications were different or involving different parties. In this case as stated earlier it is obvious that the object of both applications is the arbitral award – one being for its enforcement and the other for its setting aside. Alternately Mr Kennedy, the leading counsel representing Medscheme in these proceedings, urged this court to view the enquiry from considerations of the existence of actual and substantial prejudice that the consolidation could occasion SwaziMed. On a balance of the circumstances favouring consolidation, we concur with that approach and it is evident that no plausible evedence of prejudice has been proferred on behalf of SwaziMed.
 The only plank that SwaziMed’s attorney sought to leverage on was the technical submission that with the enforcement proceedings having been stayed by Mlangeni J, that order had the effect of rendering the matter final and the court (by extension this court) being functus. He urged that this court could not presume to re-open the matter in the course of this application for consolidation. I also understood this proposition to suggest that this court is precluded from entering on the enquiry in relation to the consolidation application before us.
 The difficulty with this reasoning is firstly, that before his Lordship Justice Mlangeni, the matter of the consolidation did not serve nor was it a prospective question raised therein; the sole focus being on SwaziMed’s interlocutory application for the stay of the enforcement proceedings pending the review. That decision being of an interlocutory and not final nature on an unrelated issue or enquiry had no impact on the consolidation application before us.
 On a practical level another consideration that this court cannot lose sight of is the fact, which is common cause, that the enforcement application is no longer serving before Mlangeni J, due to his Lordships recusal from the matter after the conclusion of those proceedings; which recusal was procured at SwaziMed’s instance. For pragmatic purposes whilst the matter is pending before the High court which without doubt retains its jurisdiction over the matter, it is no longer before Mlangeni J’s court. In effect for the matter to be enrolled it would have to be assigned to a different judge with the attendant difficulties and inconveince if not delay associated with such administrative issues. In light of these circumstances it would not make for efficient adminstration of justice to leave the enforcement on this indeterminate footing when the relevant factors point to the eminent convenience of the consolidation of the proceedins before one court. It would be time-and-cost-effective to follow such a course. It is on these bases that we have deemed the consolidation meet and so ordered.
 In sum the SwaziMed review application is for the quashing and setting aside of the arbitral award in reliance on sections 21 and 152 of the Constitution as stated earlier. However the relief sought appears in two distinct if somewhat related iterations in the way it has been formulated in the Notice of Application. Both are presented as raising substantial constitutional questions. The relative prayers are stated thus:
“1. That the arbitration award…be reviewed and set aside in to in terms of section 21 read with section 152 of the Constitution of the Kingdom of Swaziland Act No.1 of 2005 and the common law, and that the second respondent’s claims and counterclaims be remitted for fresh arbitration proceedings in terms of a new arbitration agreement before a different arbitrator.
2. That the arbitration award issued by the first respondent on 29th March 2018 (the award) be set aside in toto in terms of section 152 as read with section 21 of the Constitution…….in exercise of this court’s supervisory jurisdiction and that the second respondent’s claims and the applicant’s counterclaims be remitted for fresh arbitration proceedings in terms of a new arbitration agreement before a different arbitrator”
 The Notice of Motion further set out three other alternative prayers for relief. However, at the inception of the hearing of the review application Mr Magagula who appeared for the Applicant indicated that the applicant was abandoning these alternative heads of relief with the result that SwaziMed’s case was confined to prayers 1 and 2. Of the remaining prayers it is notable that much of the vigour of SwaziMed’s attorney’s arguments in both the written and oral submissions was devoted to the second ground.
 It is my understanding that the major thrust of SwaziMed’s case has been constructed to revolve around the second prayer. I note also that even though the the distinction between the two prayers may be nuanced; there are essential differences in the approaches and emphasis of the grounds of relief. Prayer 1 brings the element of the common law whereas Prayer 2 is predicated on a proposition of the existence of a new ‘constitutional’ legal standard or procedure founded on the provisions of seciton 152 as read with section 21 of the Constitution. It is also significant that the two forms of relief are framed on two distinct terms and appear to be presented as alternative iterations of SwaziMed’s case relying on the provisions of the ss 152 and 21 cited.
 The dispute between the parties has had a contentious history particularly in the pre- and post arbitral phases of the proceedings. Not least among these involved the declaration, submission and initiation of the arbitration whose course was marked with significant misadventure. It is not intended to set out the details of these aspects save to make a brief sketch of the salient background facts that have a bearing on the matter. These touch on key milestones in the inception and progress of the arbitral process.
 The applicant, SwaziMed is a not-for-profit mutual fund whose core business operations entail the management of a medical aid fund or scheme with associated services to its members. It is by all accounts the largest such medical aid scheme in the Kingdom. In terms of the recently promulgated statutory regulatory framework it is designated as a financial services provider in the medical aid services industry. The second respondent, Medscheme, is a company incorporated in the Kingdom as a consultancy and was engaged by Swazi Med in terms of a management agreement for the purpose, to carry out management and administrative services as administrators of the fund on behalf of SwaziMed. It is common cause that Medscheme is a subsidiary of a holding compay which is registered and has its principal offices situated in the Republic of South Africa – Medsheme Holdings (Propreitary) Limited (Holdings).
 Other common cause facts are that the contractual arrangements between SwaziMed and Medschem were governed and regulated under a written management agreement concluded by the parties on the 30th April 2007 (‘the management agreemen”). The agreement was to endure for a period of 5 years with an option of renewal subject to a special provision in the agreement as to the terms, duration and conditions of such renewal or extension. The said construction of the renewal provisions became a central feature of the critical contentious issues in the ensuing dispute between the parties which has given rise to the arbitration and ultimately to this application. I intend to return to these aspects in this judgment.
Of significance to this background and a common cause fact is that on full term the tenure of the agreement was ‘automatically renewed’ for a further period of 5 years; albeit by default of neither of the paties having triggered the termination pre-conditions to the agreement. Central to the ensuing dispute was the construction of the renewal clause as to the precise circumstances as pertains to the duration and end date of that extension or renewal.
 The agreement also contained an arbitration clause in terms of which any disputes or differences arising out of the agreement would first be dealt with internally between the parties to explore a settlement thereof failing which settement the dispute would after the lapse of 10 days be referred to arbitration. The dispute nominated the Arbitration Foundation of Southern Africa (“AFSA”) as the arbitral institution to which the dispute would be submitted and be administered in terms of its rules.
 A crucial event during the extended or renewal tenure of the agreement occurred on the 24 May 2016. On that date SwaziMed purported to give notice of its intention to terminate the agreement effective 21 March 2017 allegedly taken by its Board of Directors at a special meeting convened on 12 May 2016. It was this purported ‘termination’ and, needless to say, certain differences in the contractual relationship between SwazMed and Medscheme that brought about the dispute that ensued.
Issues before arbitrator
 The crisp issues presenting for adjudication before the arbitrator were whether on the Medscheme side it had made out a case for its claim that SwaziMed by purporting to terminate the management agreement when it did, it had misconstrued the renewal and terminal clauses with the result that it prematurely terminated the agreement thus consequently breaching or repudiating it giving rise to the claim in damages. On the other hand, the arbitrator was faced with determining whether SwaziMed’s own counterclaims founded on various allegations of mismanagement, breach of contract and or delictual conduct had merit.
 In the result the arbitrator in making the award found in favour of Medscheme in its claims and ordered that SwaziMed make payment to Medscheme in the amounts of E4 781 017.45 and E21 904 540.63 in respect of a claim for unpaid adminstration fees for the months January to March 2017 and damages representing a claim for loss of revenue for the period from April to December 2017, respectively, with interest payable on both sums. The arbitrator dismissed SwaziMed’s counterclaims in their totality and ordered it to pay to Medscheme the costs of the arbitration proceedings.
I now turn to the substance of the review applicatiion itself.
THE SWAZIMED CASE
The Constitutional and Statutory Framework
 The Arbitration Act 24 of 1904 has provided a statutory framework for the facilitation, supervision and regulation of the conduct of arbitrations in the Kingdom since the turn of the 20th century. That Act specifically sets the conditions and bases on which an arbitration award may be set aside by the Court.
 In Dickenson & Brown v Fishers Executors (that locus classicus on arbitral review) interpreting legislative provisions on which the eSwatini Act was modelled which are almost identical to those of the eSwatini Act, Solomon JA, gave a both textual, contextual and comprehensive overview of the scope of the courts power as well as giving an insight as to the pertinent principles governing the exercise of that jurisdiction as derives from the statute. The Dickenson & Brown doctrine has in recent times been comprehensively restated and echoed by Harms JA in Telcordia. The Dickenson & Brown principle is a statement of our law as deriving from the existing statutory framework which gives an account of the limited bases on which an arbitrator’s award may be set aside.
 The Natal Arbitration Act 24 of 1898, whose provisions were in considerations in Dickenson & Brown, was of the same vintage and origins as the then Transvaal Arbitration Ordinance of 1904 and the Swaziland Arbitration Act 24 of 1904. All were the so-called ‘colonial legislation’ inspired by and modelled on the English Arbitration Act of 1889 and have also been collectively referred to as the first generation arbitration legislation. A comparative analysis of the pertinent provisions in the Natal (highlighted in Dickenson & Brown) and eSwatini Acts is both insightful and critical here. It must be noted here that the South African legislation has evolved over the years with the colonial provincial statutes of the Union giving way to the Arbitration Act of 1965. Our act has remained on the statute books.
 Section 7 of the Natal Arbitration Act 24 provided that “a submission unless a contrary expression is expressed therein, shall be deemed to include the provisions set forth in the schedule to this Act, so far as they are applicable to the reference under the submission”. Further section ‘c’ of the schedule provided that ‘The award to be made by the arbitrator, arbitrators or umpire shall be in writing, and shall if made in terms of the submission be final and binding on the parties and the persons claiming under them respectively”. Sections 13 and 18 of that act set out the conditions under which an arbitrator may be removed and or his award may be set aside by the Court. The respective portions provide as follows:
“The Court may upon motion remove any arbitrator or umpire who has misconducted himself in connection with the matters referred to arbitration” and
“Where an arbitrator or umpire has misconducted himself or arbitration or award has been improperly procured, the Court may set the appointment or award aside”
 Section 2 of the Arbitration Act of Swaziland (interpretation section) defines ‘Court’ as the High Court and a ‘submission’ as “a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not” and in terms of section 4 “A submission shall unless a contrary intention is expressed therein, be deemed to include the provisions of the Schedule so far as they are applicable to the reference under the submission”. To This I must add that section 9 to the Schedule provides that “The award to be made by the arbitrators or umpire shall be final and binding on the parties and the persons claiming under them respectively” . Finally section 16 of the eSwatini Act provides as follows:
“16. (1) The Court may remove an arbitrator or umpire who has misbehaved himself.
(2) If an arbitrator or umpire has misbehaved himself or an arbitration or award has been improperly procured, the Court may set such award aside and may award costs against any such arbitrator or umpire personally”
 The upshot of the Dickenson & Brown which is considered by all accounts to be the leading authority on the construction and effect of the statutory provisions on the effect of a submission to arbitration and the powers of the court to intervene has to be that ‘once parties by agreement submit themselves to the arbitral process they intend that to be the sole forum for the determination of their disputes and to respect the finality of the arbitral award and further that the only basis for the courts interference would be within the province of the statutory grounds for setting an arbitral award aside, namely misconduct or misbehaviour on the part of the arbitrator or improper procurement of an arbitration award.
Party autonomy and Finality principles
 As to the effect of the statutory provisions in regard to the powers of the court, Solomon JA’s most trenchant remarks in that regard have endured in their remarkable clarity and simplicity as to the applicable legal standard as to the status of an arbitral award vis a vis the jurisdiction of the courts. In relation to the act he had this to say:
“The case, therefore falls within the terms of the Act of 1898, and it is clear that the legislature intended to provide by statute that all awards to which the Act applies should be final and conclusive and that there should be no appeal therefrom, Provision is, however, made that in certain circumstances an award can be set aside by the Court”
 The learned judge then referred to the criteria for setting aside an award as per section 18 of the Natal Act (comparable to our section 17) before going on to state that:
“Now in my opinion that section must be read to be exhaustive, and to provide that it is in these cases and in those only that it is competent for a Court to set aside an award. That, of course, would not debar a Court form interfering where an arbitrator has made his award extend to matters which have not been submitted to him, for that extent his awrd would be null and void, as has been decided in many cases in England”
 The upshot of the Dickenson & Brown judgment and the reasoning of the Court in that case as was equally applied in Dutch Reformed Church v Town Council of Cape Town 15 SC14 at 21 is the first principles embedded in the statutory provisions that firstly “when parties select an arbitrator and the arbitral process by which their dispute is to be adjudicated on both facts and the law, they, unless they have by express agreement provided for otherwise intend the award to be final and conclusive ‘irrespective of how erroneous, factually or legally the decision was” and secondly, they accept as per the prescript of the statute, “that the only permissible grounds on which such award may be set aside is where the arbitrator has misconducted himself or the award was improperly procured”. This is an age old position in South Africa and for the comparative reasons of equal persuasion in the Kingdom, to which there has been no departure in terms of judicial opinion. These are the principles of ‘party autonomy’ and ‘finality’ which underpin our statutory law of arbitration as expressed in the Arbitration Act.
 Now I must say that although both counsel for the Medscheme and indeed the attorney made submissions in regard to upholding and excepting the application of the common law position in regard to the review of arbitral awards, it is more accurate as the Court in Dickenson & Brown was at pains to emphasise the principles I have referred to derive and are underpinned by the provisions of the current arbitration act (in the case of eSwatini) and the colonial legislation as it existed at the time of the celebrated Solomon JA judgment at the turn of the last century. In the Kingdom the Act remains the basic framework for the review of arbitration awards. Whatever the common law position obtaining before Dickenson as regards the proper province and grounds for review of arbitral awards, Dickenson and the kindred decisions have settled the position that the scope of the courts review jurisdiction is now set out in the relevant statutory provisions which in the Swaziland context is enshrined in the Arbitration Act of 1904.
 We were referred by Mr Kennedy to the high principles we have adverted to herein as revisited and articulated by Harms JA in the Telcordia case, in the preposition that these resonate and are highly relevant to the instant case. Not only do we concur with this view but it would appear so did Mr Magagula who was anxious to stress that SwaziMed did not seek to gainsay the principle in Dickenson and Telcordia but to advance a different procedural basis for quashing the arbitration award on grounds of errors discernible on the face of the award; this being predicated on the ‘supervisory jurisdiction’ in terms of section 152 of the Constitution. This is to suggest the advent of section 152 of the Constitution has ushured in a completely new standard for review of arbitral awards and a departure from the Dickenson & Brown doctrine cited with approval by Telcordia.
 Remarkably the constitutionality and applicability of the arbitration act has not been challenged or called into question in the SwaziMed application, nor has the applicant sought a declaratory order for the setting aside or limitation of those provisions in that regard. Instead SwaziMed has charted a radically new course founded on its reading of the constitution.
 The essence of SwaziMed’s contention on the constitutional relief is that section 152 of the Constitution confers special powers on the High Court (which it terms a ‘supervisory jurisdiction’) by exercise whereof the Court may intervene and quash and set aside an arbitration award on account of errors apparent on the fact of the award; to pronounce and correct the substance of the award as regards the merits beyond the common law and statutory grounds for reviewing private arbitral awards.
 It is contended on behalf of SwaziMed that this power, not being original or inherent, has its source in the section of the constitution and does not form part of the courts common law power of review but goes beyond it. In substantiating its assertion SwazMed advances the argument that the arbitrator committed several errors of both law and fact which errors constitute material errors of law which are apparent on the face of the award rendeing susceptible to be quashed and set aside on that basis. It is contended, so goes the argument, that the jurisdiction of the High Court is novel having been introduced via the provision of section 152 of the Constitution suggesting it did not exist before its adoption.
 Related to the constitutional remedy asserted by SwaziMed and the alleged errors warranting interference by the Court in its alleged supervisory jurisdiction is the allegation that the so called patent errors occasioned SwaziMed and its members such grave injustice as to constitute a miscarriage of justice and as such warrant the court to enquire into such alleged error going into the substance of the dispute and or the merits thereof. Errors appear to be the crucial ground on which the so-called supervisory jurisdiction is invoked. There are also specific grounds as pertains to excess or assumption of jurisdiction that SwaziMed has advanced in its written submissions which appear to be conflated with the ground on review on account of ‘error’.
 I shall deal with the excess of jurisdiction as a separate and conceptually different ground in so far as the same appears to be subsumed under the first prayer in the applicant’s Notice of Motion as supported by the founding affidavit of Mr Peter Simelane in so far as it is advanced as an independent stand alone ground put up as an irregularity affecting the arbitrator’s remit. The broad front of the section 152 question is of a conceptual nature.
 The constitutional provision invoked by SwaziMed as the central tenet to its case (section 152 of the Constitution) reads as follows:
“The High Court shall have and exercise review and supervisory jurisdiction over all subordinate courts and tribunals or any lower adjudicating authority, and may, in exerise of that jurisdiction issue orders and directions for the purpose of enforcing or securing the enforcement of its review and supervisory powers”
 In plain words, central to SwaziMed’s case and proposition is that the insertion of the words ‘supervisory’ as a prefix to ‘jurisdiction’ in the suggested a power beyond the inherent judicial review powers of the High Court and an expansive superintendence over all tribunals including private arbitrations enabling the court to enquire into the merits and correctness of arbitral awards and to set aside awards tainted with errors on matters of both law and fact on the face of an award. Medscheme’s contention on the other hand is that the ‘supervision’ is no more than and adjunct to the courts powers of review and that the consitution does no more than declare the inherent jurisdiction of the court exercising its ordinary powers of judicial review.
 As to the import of section 152 yielded by a ‘proper interpretation’ of the relevant wording of that provision as pertains to the the supervisory powers of the High Court we have been referred to two decisions of the Supreme Court of Eswatini as persuasive support for the respective contesting parties submissions on the subject.
 In support to SwaziMeds’s contentions on the interpretation to be given to the words ‘supervisory jurisdiction’ we were referred by Mr Magagula to a recent Supreme Court decision in Director of Public Prosecutions v Sipho Shongwe (unreported) case No. 12 of 2018 and specifically to the dictum of MJ Dlamini JA at paragraph …of the Courts judgment when he said:
“Unlike the US and other jurisdictions, in section. 148(1) we have clear, legitimate basis for the exercise of supervisory power. Under section 152 of the Constitution the High Court has similar power over courts subordinate to it”
 Nowhere does the learned judge seem to suggest the invention in the Constitution of a new remedy, procedure or standard for the review of arbitral tribunals or even to suggest that the exercise of supervisory power in the sense that their Lordships were mindful of and seized with in that matter, extends to the review into the merits of arbitration awards.
If anything all the passages cited and quoted in the SwaziMed submissions were stridently and explicitly directed at the supervision by the Supreme Court of lower instance courts. It therefore appears to me, that although well meant, as evidenced by the SwaziMed reliance on these dicta there is the ever present risk of a non-contextualised extrapolation of the remarks for a proposition that could not be farther from the minds of the learned Justices of the Supreme Court in the context of the matter with which that court was seized with. It certainly was not dealing with an enquiry into the merits or correctness of an arbitration award or any tribunal of the kind. I am not persuaded that the exerpts in the Shongwe judgment advanced by SwaziMed in support of its assertion of the existence of an expansive ‘review’ jurisdiction yield the utility and guidance intended. Mr Magagala also referred this court to various other foreign judgments as support for the construction of the constitutional provision on which SwaziMed seeks to rely. I propose to revert to these decisions and the relative insights therein.
 Medscheme’s case rejects as flawed the proposition that section 152 of the constitution confers on the High Court a novel review jurisdiction enabling the review of the awards of an ad hoc private arbitrator and in so doing enquire into the merits as opposed to the established grounds of review as pertain to arbitration awards. In this regard it, in turn, relies on a 2018 Supreme Court decision and commentary on the scope of section 152 of the Constitution as pertains the purview of the High Court’s jurisdiction. It is that of Dube v Ezulwini Municipality and Others (91/2016)  SZSC 49 (30 November 2018). In context the Supreme Court in that case had regard to the relative review and supervisory powers of the High Court over the Industrial Court in the context of examining whether such powers of review extended to the Industrial Court of Appeal as inferred from section 152 in comparison with the Supreme Court’s special powers of review conferred on it by section 148 of the Constitution. Of particular relevance it was with regard to the following observation by the court in that case that interest to that opinion was drawn, where the court stated:
“……and that section 152 restates and codifies the High Court review powers that existed before the Consitution. It is not a special review jurisdiction such as is conferred on the Supreme Court by section 148”. Therefore, to understand section 152 as conferring power on the High Court to review decisions of the ICA ‘would result in a glaring ubsurdity’ which the legislator could not have contemplated – absurdities such as the High Court exercising review jurisdiction over a specialist court equivalent to the Supreme court: there would be no finality to matters within the exclusive jurisdiction of the IC; matters between employer and employee would take longer to resolve contrary to the purport of the IRA; ‘final judgment on merits would be susceptible to review on precedural irregularities which is the object of a review. This would result in endless litigation…..”’
 As I understand it the Dube case is advanced by Medscheme of an authoritative statement on the principle of judicial precedent in the Kingdom on the scope and import of section 152 and the proper interpretation it is to be given in regard to the High Court inherent powers of review. It is submitted the decision is consistent with the view that section 152 is no more than a restatement of the conventional powers of review of the Court and inconsistent with the interpretation sought to be advanced by SwaziMed in asserting the existence of an expansive supervisory jurisdiction – that section 152 does not create a special review framework but merely codifies that which was always the subject of the High Court’s review powers at common law.
 In contrast we were also referred to a decision of the Court of Appeal (the precursor to the Supreme Court) in Kenneth Ngcamphalala v Principal Judge of the High Court and 9 Others Civil Appeals Case No. 24/2012, which seems to suggest that there is a difference conceptually between the function or power of ‘review’ as opposed to ‘supervision’ in relation to both the declaratory consitutional provisions as regards the relative juridictions of the High and Supreme Courts. This was in relation to the connotation of the dichotomy presented by the reference to both supervisory and review powers in section 148 of the Constitution in relation to the Supreme Court (an exercise in comparing similar reference in wording to the supervisory and review powers of the High Court as per the section 152 in consideration). In reference to the connotation of the words ‘supervisory and review’ and their contextual use in the relative sections of the Constitution the court made the following remarks:
“……. It is of fundamental importance that this section deals with two different concepts, namely ‘supervisory’ and review jurisdiction……
……it is instructive to stress that section 148 deals with two concepts. Subsection (1) deals with ‘supervisory’ jurisdiction of the Supreme Court. As the word itself denotes, ‘supervisory’ in its ordinary meaning simply refers to ‘overseeing’ and not reviewing…..indeed one has to merely look at the heading of section 148 to see that it refers to two different concepts. The heading is ‘Supervisory and Review’ jurisdicition I have underlined the word ‘and’ to emphasize that is disjunctive and not conjunctive as Mr S C Dlamini would like the court to believe. It follows that supervisory jurisdiction in section 148 is not the same thing as review jurisdiction in section 148.”
 In my view it is not entirely clear other than the polemics arising in the use of the words in either section 148 and section 152, that much useful guidance can be had from the dicta that have been referred to deriving from the decisions of the Supreme Court and Court of Appeal cases. This is because the contextual setting for the interpretation and consideration of the wording and implicit concepts in the use of the terms ‘supervision’ or ‘review’ in either section of the Constitution was different from and not concerned with the review of or enquiry into an arbitral award or the delimitation of the courts jurisdiction in that regard; that which the instant case is concerned with.
Meaning of Supervisory power
 In the absence of direct judicial authority on the subject, perhaps one can look elsewhere for insipiration as to possible meaning of supervision in relation to the courts jurisdiction over arbitrations. The authors Butler and Finsen in Arbitration in Southern Africa: The Law and Practice, explain the concept as follows:
“The powers of the court in relation to that of arbitration may be classified either with reference to the nature of the relief sought or with reference to the stage in the arbitral process when the powers may be invoked and exercised, When classified with reference to the nature of the relief sought, the statutory powers of the court can be classified as powers of assistance, supervisory powers and powers of recognition and enforcement.
 It is instructive that as an example of the supervisory powers of the court the authors refer to section 13 of the South African Arbitration Act relating to the courts power to remove an arbitrator and sections 32 and 33 regarding the court’s power to remit and set aside an arbitrator’s award. Again although these references are made in respect to the South African legislation the High Court enjoys similar powers as derive from the eSwatini arbitration legislation. In addition the authors also acknowledge the courts inherent common law powers to interdict and prevent arbitration from proceeding pending the determination of an arbitration agreemend, to stay court action pending arbitration where the dispute is covered by an arbitration clause amongst other powers. In none of these senses does supervisory powers of the High Court denote a special esoteric remedy or procedure in the sense suggested by SwaziMed.
 The correct position as to the courts power of intervention in arbitral awards has to be this: on the authority of Dickenson it is the arbitration act that definitively articulates and affirms the nature, extent and scope of those powers, regardless of the position that might have obtained or indeed still currently obtains in the common law regarding the review of tribunals and quasi-judicial institutions generally. The powers of review of the Court as specific to the arbitrations is set out in the consise and clear terms of the Arbitration Act and until it can be shown that these provisions are either inconsistent with, have been varied by or are so repugnant to the Constitution as to render them unconstitutional they remain the law in the Kingdom of Swaziland governing arbitrations a la Dickenson.
 The arbitration act is the law that governs the constitution, conduct enforcement and setting aside of arbitral proceedings and awards in the Kingdom. The parties submitted to an arbitration under the arbitration act. In Telcordia it was held that:
“  By agreeing to arbitration parties to a dispute necessarily agree that the fairness of the hearing will be determined by the provisions of the Act and nothing else. Typically, they agree to waive the right of appeal, which in context means that they waive the right to have the merits of their dispute relitigated or reconsidered. They may, obviously agree otherwise by appointing an arbitral appeal panel, something that they did not happen in this case.
 Last by agreeing to arbitration the parties limit interference by courts to the ground of procedural irregularities set out in section 33 (1) of the Act. (The South African Arbitration Act). By necessary implication they waive the right to rely on any further ground of review, ‘common law’ or otherwise……”
 To similar effect, the author Peter Ramsden, in The Law of Arbitration states that:
‘By agreeing to arbitration, the parties limit the grounds of interference in their contract by the courts to the procedural irregularities set out in the legislation such as section 33 (1) of the Arbitration Act or Article 34 of MAL. The parties waive their right to rely on any further grounds of review, whether at common law or otherwise”
 Subject to the obvious qualification that the reference to “the Act’ in the above references is in regard to the South African statute in the context cited, the above propositions hold true in the Kingdom. In this instance the reference is to the Arbitration Act of 1904 which still subsists in eSwatini.
Right to a fair hearing
 The axis on which the invocation of section 152 of the constitution pivots is section 21 of the Constitution. In its heads of argument the applicant’s attorney makes a glib reference to section 21 and the right to a fair hearing enshrined therein. Although not specific it is assumed that is in regard to the section 21(1) of the Constitution which is set in very broad general terms as follows:
“21. (1) In the determination of civil rights and obligations or any criminal charge a person shll be given a fair and speedy public hearing within a reasonable time by an independent and impartial court of adjudicating authority established by law.”
 The rest of the subsections of section 21 are only relevant and peculiar to criminal or administrative justice and relate to proceedings conducted by and before a court of law or a public adjudicating authority. By their nature private arbitrations and private arbitration tribunals are consensual private fora designedly established as a private adjudicating facilities which excludes the right to appeal unless specifically agreed otherwise. Section 21 (1) is worded in broadly similar terms such as the section 34 of the South African Constitution which provides to access to the courts.
Section 21 of the eSwatini constitution provides:
‘In the determination of civil rights and obligations or any criminal charge a person shall be given a fair and speedy public hearing within a reasonable time by an independent and impartial court or adjudicating authority established by law”
 Whereas section 34 of the South African Constitution makes provision in the same vein as follows:
“Access to courts
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair hearing before a court or; where appropriate, another independent and impartial tribunal or forum”
 In Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC) the Constitutional Court in South Africa interpreted the aforesaid section 34 of the Constitution of that country restrictively, holding that the language of the provision did does not cover the concept and nature of private arbitration within its fold and held:
- that a private arbitration does not fit into a description of a court; nor
- does it entail or require public hearings in keeping with international practice; and
- private arbitrations need not as long as the parties accept this knowingly, always be independent.
 It is implicit in the Mphaphuli opinion, that the rationale in choosing private arbitration is a person does not necessarily waive their common law rights to a fair hearing or rights under 34 of the South African constitution (or the relative section 21 of the eSwatini Constitution) but simply opts not to exercise their rights under the section.
 The difficulty in the applicant’s (SwaziMed’s) case, in so far as its constitutional remedy is concerned, is that it does not set out in precise terms what aspect of the section 21 provisions have been allegedly violated by the arbitrator; except in the context of the alleged jurisdictional excess ground as a possible common law ground in terms of prayer 1 of the Notice of Motion as amplified in the founding affidavit to which I intend to revert in detail in the latter part of this judgment.
 What appears to be overlooked by the applicant is that the right to a fair hearing, although a central theme to section 21 provisions; it is not by itself peculiar to the constitution. It has its foundation in the common law right which is recognised as implicit to submission to arbitration in that under the Roman Dutch common law it is subject to the implied condition that the arbitrator shall proceed fairly and according to law and justice whilst also observing the doctrine of audi alteram partem in the process. That is trite. Ramsen takes the view that parties to consensual arbitration mutually consent to the arbitration agreement on the presumption of fairness but in so doing themselves out of their own free will define the form that the fairness or process will take in much the same approach as they do the powers of adjudication including the rights to access to the public courts.
 I am persuaded as to the soundness and sensibility of that view. In sum it is in keeping with the notion and the principles pertaining to private arbitration central to which is the position that private arbitration under the Arbitration Act is not per se unconstitutional nor does it purport to depart or detract from the right to a fair hearing embodied in the consitution but the parties freely accept that the normal arbitral principles including the finality of arbitration without the right of appeal shall apply. They subscribe to the right of access to and supervision by the courts as set out in the Act and the common law.
 There is a welter of authority stemming as far back as Dickenson and Brown for the position that under the colonial legislation (and to that end under the current eSwatini act which is based on that vintage legislation) an error of law or fact whether being the so-called ‘on the face of an award or not so apparent, which was once part of the English law before the repeal of that rule (‘the Westinghouse rule”) never formed part of our law (either in the Transvaal or the rest of the then Union of South Africa in 1907) to have been incorporated into the system. Likewise following Dickenson, it is thus settled that a bona fide mistake made by an arbitrator in law or in fact cannot be characterised as misconduct or misbehaviour in terms of section 16 of the Arbitration Act of 1904. To assert the contrary position as SwaziMed does would be to interpose a positition inconsistent with and contrary to the statutory basis for review of arbitral awards under the act which the arbitration process of the medical aid dispute was. The rejection of the rule in Westinghouse (Westinghouse Co. v Underground Electric Railway Co. 1912 A.C.) relied on by SwaziMed as authority in support of the asserted supervisory powers for quashing arbitral award on the face of the award to which reference to section 152 is made, was emphatically rejected as early as Solomon J.A.’s decion in the Dickenson Brown case either as part of the common or statutory law on arbitration.
 Solomon J.A. then (in 1915) said this of the Westinghouse rule:
“What then is the position in South Africa? We have a statute on the subject providing in what case an award may be set aside, but it is impossible to say that there has been here, as in England, a series of decisions extending over very many years embodying the principle that the court has power to go outside the statute and set aside an award on the ground that an arbitrator made a mistake of law apparent on the fact of the award. I can find no reported case in the South African reports in which such rule has been laid down”
 These principles set in Dickenson and Brown as pertains the province of review of arbitral awards in arbitrations brought in terms of the relevant statutory law have been followed and applied by the South African courts in a long line of cases including Amalgamated Clothing and Textile Workers Union of South Africa v Veldspun (Pty) Ltd 1994 (1) SA 162 (A), per Goldstone JA, at p 169; see also Total Support Management (Pty) Ltd and Another v Diversified Health Systems (SA) (Pty) Ltd and Another (supra); Telcordia Technologies Inc. v Telkom SA Ltd (supra);Hyperchemicals International (Pty) Ltd and Another v Maybaker Agrichem (Pty) Ltd and Another 1992 (1) SA 89 (W).
 Other jurisdiction with arbitral statutory provisions with which we share the common law persuasions have also followed the Dickenson Brown approach. In Southern District Council v Gerrit Herman Vlug and Another Case No. MAHLB-000222-08 the High Court of Botswana applying the same principles in relation to a provision in the now repealed Botswana Arbitration Act (section 13) cited the above South African authorities with approval as it did the doctrine that has now been entrenched in the field of review of private arbitrations conducted under the act. In that case Newman J, having carefully reviewed and affirmed the pertinent South African case law and principles as equally applicable in Botswana, also referred to a similar approach adopted by the Zimbabwean Supreme Court in its decision Zimbabwe Electricity Supply Authority v Maposa  (2) ZLR 452 (SC); where at p.462 Gubbay CJ as he then was, considering section 12(2) of the repealed Arbitration Act of Zimbabwe (framed in pari materia to our section 16 and section 13) of the Botswana Acts had this to say:
“ a….party seeking to set aside an arbitral award could succeed only if able to establish either misconduct on the part of the arbitrator or the fact that the award was improperly procured. The word ‘misconduct’ was to be understood in the sense of some wrongful, dishonest or improper conduct; a bona fide mistake whether of law or of fact on the part of the arbitrator could not be relied upon as a ground for setting aside the award”
 The review proceedings in the Botswana case had been brought in terms of section 13(2) of the Arbitration Act, Cap.06:01 worded similarly to section 16(2) of the eSwatini Act in the terms:
“Where an arbitrator or umpire has misconducted the proceedings or an arbitration award has been improperly procured, the Court may set the award aside, and may award costs against any such arbitrator or umpire personally”
 I think that the judgment in the Batswana Southern District case provides a useful sounding board as to the rigour of the principles in the South African cases to the effect that other than the established grounds and standard for the review and setting aside of arbitral awards to which parties to private arbitration subject themselves to in the act, there exists no other legal standard for review. It also highlights the folly of relying on the supervision of public administrative and quasi-judicial bodies as basis for interference in light of the principles of party autonomy, privacy and finality. Newman J was mindful of this critical question when he said in that case:
“Grounds of review
 As I have recorded, section 13(2) of the Act empowers a court to set aside an arbitration award, where it has been established that the arbitrator has 'misconducted the proceedings', or his award has been 'improperly procured'. Before giving consideration to these terms, it is an appropriate time to clarify one small, but important issue. In Total Support Management (Pty) Ltd and Another v Diversified Health Systems (SA) (Pty) Ltd and Another 2002 (4) SA 661 (SCA), at p 673H, ‘Smalberger ADP emphasized the point that an arbitration arises through the exercise of private rather than public powers, and does not fall within the sphere of' administrative action':
'The hallmark of arbitration is that it is an adjudication, flowing from the consent of the parties to the arbitration agreement, who define the powers of adjudication, and are equally free to modify or withdraw that power at any time by way of further agreement... As arbitration is a form of private adjudication the function of an arbitrator is not administrative but judicial in nature.'
 Accordingly, the three conventional grounds on which administrative conduct may be subjected to judicial review, namely, 'illegality', 'irrationality', and 'procedural irregularity', have no application to the case at hand. As Harms JA explained in Telcordia Technologies Inc. v Telkom SA Ltd 2007 (3) SA 266 (SCA), at p 292, by taking the arbitration route, the parties thereto have agreed, inter alia, to:
'...limit interference by courts to the ground of procedural irregularities set out in section 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, "common law" or otherwise.'
 If these principles embody an expression of the state of the then South African, Batswana and Zimbabwean common and statutory law as indeed it is surely should be of the eSwatini statutory and common law position, by necessary implication the SwaziMed case sought to be advanced by its attorneys both orally and in the written submissions must interpose the proposition that section 152 of the Constitution introduces a new review standard that overrides the prevailing common law and statutory ground for setting aside a private arbitration award. We have not been shown any direct authority for so bold a position as has been suggested by the SwaziMed case.
 It appears to me that the upshot of the Dube judgment referred to by Medscheme in the construction of section 152 it advances, is that constitutional provisions in and of themselves are but bold affirmations and declarations of the judicial institutional and jurisdictional framework under the constitution. They do not in and of themselves, save where expressed in that form, create remedial and substantive law standards. The bill of rights serves as a bulwark against which vindication or rights and access to the courts and administration of justice is accomodated and guaranteed. It is largely the basis for the justiciability of any causes framed in terms of the constitution including infringements or violation of rights. I am not persuaded that section 152 of the eSwatini Constitution creates substantive rights in law as to override the courts inherent, common law and the pertinent statutory powers conferred in terms of section 16 of the Arbitration Act as suggested by Mr Magagula.
 Of significance is that the state of the law in eSwatini upon adoption of the constitution is set on firm ground in section 252 (1) of the Constitution which says:
‘The Law of Swaziland.
252. (1) Subject to the provisions of this Constitution or any other written law, the principles and rules that formed, immediately before the 6th September, 1968 (Independence Day), the principles and rules of the Roman Dutch Common Law as applicable to Swaziland since 22nd February 1907 are confirmed and shall be applied and enforced as the common law of Swaziland except where and to the extent that those principles or rules are inconsistent with this Constitution or a statute…..”
 To the extent that SwaziMed seeks to draw parallels between the jurisdiction of the Supreme Court in terms of section 148 of the Constitution, this bears comment. It is my considered view that the provisions of section 148 (2) of the constitution to which SwaziMed relies, especially the subsection on the revisional powers of the Supreme Court over its own decisions, are unique and stand out as special jurisdictional provisions. The sub-section is worded in such a way as to leave no doubt as to its prime object – the creation of a constitutional mechanism for review. It is also qualified in so far as it envisages the enactment or promulgation of the remedial procedural framework to facillitate access to the court in this limited specific jurisdiction. There is thus no equivalence or comparison with section 152 as pertains to the review and supervisory powers of the High Court.
 All said the bare bones of constitutional provisions do not in and of themselves create remedies or mechanisms by which perceived infringements of rights may be vindicated or made justiciable. As stated earlier, in my view they stand as declaratory guarantees to which their content and procedure for enforcement may be further provided for in statutory or other existing common law, remedial and substantive law sources.
 What emerges in the Swazimed papers in relation to the ‘special supervisory’ power whose source is attributed by SwaziMed to the sections relied on in the constitution, is that although it is at pains to distinguish the same from the High Court’s common law powers, it does bear the hallmarks of the general jurisdiction of the Court. This is in line with the view expressed by Pollak on Jurisdiction (1993) at p.30 where in reference to the Supreme Court of South Africa, he states that the court’s power to review proceedings of administrative and quasi judicial bodies/tribunals, e.t.c., does not derive from its inherent but general jurisdiction.
 However, in Ex Parte Millsite Investment Co. (Pty) Ltd 1965 (2) SA 582 (TPD) at 585 G-H, the court held that in addition to the statutory power of the High Court to review, it has inherent (or common law) right to review statutory bodies and domestic tribunals where the latter fail to conduct their proceedings in a fair and just manner, which is not dependent upon the review machinery created by the legislature. What is certain, despite difference of opinion as to whether this jurisdiction derives from the inherent or general common law power of the court, it predates the constitutional dispensations and does not depend on the constitution for the definition of its content. That is consonant with the position of the Supreme Court in the Dube case and on this, we incline towards the submissions made by the learned Counsel for Medscheme as a sound characterisation of the supervisory power of the court.
Foreign judgments – Persuasive authority
 In their extensive written submissions on the scope and the supervisory jurisdiction argument and during oral submissions the attorneys for SwaziMed placed before us a plethora of foreign judgments on a comparative illustration and application of the supervisory jurisdiction phenomenon in various Commonwealth jurisdictions. I do not propose to deal in much detail with these judgments and the specific arguments in regard to which the individual case law is advanced save to say their persuasive value is ostensibly tendered in support of the unique remedy and relative jurisdiction of those courts concerned to intervene in private arbitral proceedings to set aside awards tainted with a manifest error on a matter of law or fact.
 Although the court is always grateful to counsel for comparative jurisprudence in the form case law material emanating from foreign jurisdiction, I am mindful that the relative value of such material will almost invariably depend on the textual and contextual conditions of the case law in determining the interpretive utility of such judicial material or opinions. To be persuaded as to the relevance of such approaches to intepretation yielded by the comparative jurisprudence it would be instructive to determine and compare the constitutional provisions within the context of the relative constitutions and the judicial institutional framework of origin.
 There is much benefit to be had in the use of comparative international jurisprudence especially in the interpretation of constitutional provisions, especially the bill of rights. However, the difficulty that arises in terms of tendered construction approaches on specific words is that the comparative persuasive value of such material is lost when cited in vacou in the absence of the contextual conditions.
 I do not propose to render a comprehensive survey of the case material that has been placed before us as an intepretive aid to the constitutional provisions that we are asked to give weight to. For the most part, quite apart from the Irish case of Irishenko, these cases appear to me to relate to the respective courts powers over inferior courts of justice and other adjudicative tribunals or quasi-judicial public institutions in the oversight of proper and fair administration of justice.
 It is notable that the case of Carrilion Irishenko t/a Irishenko Construction v Dublin City Council  IEHC 225, we were referred to by Mr Magagula was concerned with the exercise by the court of its review jurisdiction under Irish arbitration law – being a review in terms of that country’s arbitration Act. It involved the determination of whether the arbitrator’s award in that matter was affected by any act of misconduct in the context of the statutory provisions. Of significance in the judgment is the court’s reference to its ‘supervisory jurisdiction in relation to a section in the Irish Act which is incidentally couched similarly to the eSwatini Arbitration Act. At para 54 of the judgment the court observes:
“the Arbitration Acts 1954-1998, confer an the High Court a certain jurisdiction over arbitrations. The purpose of this role is supervisory and is designed to ensure that the arbitration procedure is conducted fairly”
 The court then referred to subsection 37 and 38 of the legislation which provides in much the same language as our section 16(1) and section 16(2) by reference to ‘misconduct’ or ‘an improperly procured award’ as the only good grounds upon which an arbitrator may be removed and an arbitral award may be set aside.
 This leads me to conclude that the Irishenko case relied on by Mr Magagula goes on to affirm and underscore the Supreme Court position in the Dube case that, in the context of review of arbitral awards the ‘supervisory’ jurisdiction referred to in section 152 is co-extensive with and denotes no more than the common law power of review vested in the courts and as set out in the Act. I think it underscores the view that as regards private commercial arbitrations, in this Kingdom as it is in that country, the supervisory review function is provided for and is to be exercised in terms of the legislative framework governing the conduct of arbitrations as well as the common law. As in the Dickenson standard the case does not serve as support for the construction SwaziMed seeks to give to section 152 of the constitution – the proposition that the said section confers on the court expansive powers of review to enquire into errors of law and fact in arbitration proceedings whether on the face of the award or otherwise.
 I have also examined the texts of the judgments that Mr Magagula kindly availed this court in the Ghanaian and Indian authorities. I cannot however find any thing in those decisions serving as useful guidance on the issues at hand in so far as regards the proper construction to be given to the constitutional provisions invoked. On the contray, I find the analysis and overview undertaken by Medschemes Counsel to be more an accurate characterisation and assesment of the cases referred to and the jurisprudence they yield, with which assesment I mind myself in concurrence.
 Much store was also placed by SwaziMed’s attorney on the Westinghouse case during oral arguments. I have already referred to that case. We were urged to regard the Westinghouse principle as to the form and nature of the supervisory jurisdiction as the standard imported by section 152 and we invited to infer from section 152 as conferring on the High Court such wide powers over arbitral awards as to enable courts to intervene into the propriety and merits of an arbitral award on the basis of errors of law and or fact existing on the face of the award. The Westinghouse decision, as stated earlier in my discussion of the status and legal standard for review set out in that case, was specifically referred to in the Solomon JA judgment that sounded the death knell to the english doctrine per Westinghouse and other like decisions when the English approach to the review of arbitrations was soundly rejected. I have already indicated the position in Dickenson and Brown makes for good and sound law for eSwatini in the same way as the judicial tradition the Telcordia decision follows in terms of its persuasive content on the principles and its reasoning.
 I now turn to the specific errors cited by Swazimed grounding its application with a view to examining whether outside of the perceived section 152 review, they bear any substance as conceivable basis for review in terms of the common law in so far as reliance is had to that aspect for the relief set out in Prayer 1 of the Notice of Motion.
ERRORS AS GROUNDS FOR REVIEW
 As I have already said the established legal standard for review of arbitration awards is the age-old Dickenson & Brown test which has echoed through the ages and received affirmation in Telcordia. Simply put that position rules out review of a consensual commercial arbitration award on grounds of a material error of law, of adjudicating on any issue placed for determination, of evaluation of fact and or interpretation or construction of a contractual provision as impermissible. That is the standard against which the alleged ‘errors’ which according to Swazimed were committed by the arbitrator in the conduct of the arbitration. The principles have been so thoroughly reviewed in Telcordia that they require no further elucidation.
 Of course the gravamen of SwaziMed’s case as has been robustly advanced by its attorney and as founded in the second prayer in its Notice of Motion is that Telcordia has no application in this matter in preference of the perceived section 152 relief. As I have already pointed out that position is misconceived in light of the weight of the authorities on the subject and the provisions of the Arbitration Act which SwaziMed has scarcely had regard to in the prosecution of its case. The arbitration act and its applicability is the elephant in the room and should have been the starting point of the applicants pursuit of this application for the setting aside of the award of the honourable arbitrator.
A Wrong Interpretation of Clause 5 of the Management Agreement
 One of Swazimed’s spirited attacks on the arbitrator’s award and or conduct is that the learned arbitrator made a patent error by wrongly interpreting Clause 5 of the Management Agreement; that his interpretation was not only wrong in law but had the effect of artificially creating an agreement for the parties. Swazimed contends further that the allegedly erroneous interpretation of Clause 5 constituted an error of law on the face of the award.
 In another respect SwaziMed contends the arbitrators conduct is liable to be impugned in the manner of the interpretation when he relied on an inference of a tacit agreement for the reason that in so doing he exceeded the bounds of the submission and his jurisdiction. For reasons that I set out below I have dealt with this aspect under the theme of jurisdictional grounds as a separate enquiry under ‘excess of jurisdiction’.
 At this time I turn to the element of error in interpretation as an example of a patent error warranting review; in other words the merits argument. In this regard I can do no more than revisit the dictum by Harms JA in the Telcordia judgment when he said:
“ The fact that the arbitrator may have either misinterpreted the agreement, failed to apply South African law correctly, or had regard to inadmissible evidence does not mean that he misconceived the nature of the inquiry or his duties in connection therewith. It only means that he erred in the performance of his duties. An arbitrator ‘has the right to be wrong’ on the merits of the case, and it is a perversion of language and logic to label mistakes of this kind as a misconception of the nature of the inquiry – they may be misconceptions about meaning, law or the admissibility of evidence but that is a far cry from saying that they constitute a misconception of the nature of the inquiry. To adapt the quoted words of Hoexter JA: It cannot be said that the wrong interpretation of the Integrated Agreement prevented the arbitrator from fulfilling his agreed function or from considering the matter left to him for decision. On the contrary, in interpreting the Integrated Agreement the arbitrator was actually fulfilling the function assigned to him by the parties, and it follows that the wrong interpretation of the Integrated Agreement could not afford any ground for review by a court”.
 It is the principle expressed in the above dictum that has valid application to these proceedings and with which I respectfully associate myself with the caveat and adaptation to the law in the Kingdom. Misinterpretation or even a serious misconception of the law in a manner of interpretation which in effect yields a wrong interpretation does not supply a ground for review.
Determination of damages calculation (see pleadings)
 Allied to Swazimed’s litany of errors of law that have been cited as grounds for quashing the arbitrator’s award is the contention that he made grave errors in misconceiving the correct principles in the computation and awarding damages for the alleged breach of the management contract on which he found for the Medscheme. This received extensive coverage in argument by both the Counsel of Medschem and SwaziMed’s attorneys in the written and oral submissions.
 As an instance of this error it was advanced on behalf of SwaziMed that the arbitrator made a serious mistake and thus misconceived the law when he awarded ‘gross damages’ and consequently he overcompensated Medscheme. Again it is difficult to understand how such a contention could conceivably arise given the history of the conduct of the proceedings. Starting with the pleadings the total sum in quantum of the damages sought by Medscheme was set out in the statement of claim and SwaziMed was afforded every opportunity to deal with and engage the pleadings in challenging the basis of the claim on quantum. Also the Rules of this Court being the rules of choice afford a litigant leeway for thorough discovery and interrogation mitigation of commercial or monetary claims.
 Whilst it is possible that in the impassioned hurly burly of litigation the use of exaggerated language and hyperbole may by slip occur, I think the reference in SwaziMed’s submission to the arbitrator having given Medscheme ‘a windfall’ is to be deprecated. By way of slight digression I pause to also sound a word of caution in light of the various instances during Swazimed’s arguments where there were certain allegations and assertions that would appear to detract from the integrity of the learned arbitrator. I appreciate that Mr Magagula wisely decided to abandon the final three prayers in which, allegations of impartiality against the honourable arbitrator had been made. In matters of this kind I can do no more than echo the words of Foxcroft JA in the case Southern District Council v Vlug and Others 2011 2 BLR 427 before the Court of Appeal in Botswana when he said words to the effect that ‘it is a serious matter to impugn the integrity of a professional man carrying out his work to the best of his ability of bias and impropriety amounting to misconduct’ and one that could cause great harm. It could also do damage to the nascent practice of arbitration in the Kingdom as potential arbitrators could be wary or discouraged. This is no less so when the man is a retired judge of distinguished service in this and other jurisdictions.
 Returning to the matter on hand, it is unclear to me as to how the arbitrator can said to have made an error in the determination of the quantum of the claim. The evidence we were referred to as well as the detailed breakdown setting out the rates on which the claim of fees and revenue streams were based during the arbitration beg the question as to why these issues could not have been thoroughly investigated and challenged by SwaziMed during the arbitration.
 Having said that again whether the arbitrator may have made an erroneous decision or award of damages in the manner he calculated or determined the quantum of loss is not in itself proper grounds for review and as such again the point cannot sustain basis for review of an arbitral award. For this reason we find no merit for this ground in so far as it does not stand as proper ground for review.
Dismissal of Swazimed’s counterclaims
 SwaziMed mounts further attack on the arbitrator’s award on the basis of certain alleged errors made by the learned arbitrator in regard to his findings dismissing the various counterclaims brought by SwaziMed against Medscheme in the course of the arbitration. I must say that again in the manner and substance of formulating these grounds, they appear to relate substantially to the merits of the arbitrators findings and his reasons for the dismissal than they do to any reviewable procedural defect or instance of misconduct based on the test for review. In essence they stand as the sort of grounds that would have stood muster as grounds of appeal than of review.
 For an example Swazimed complains that the arbitrator’s dismissal of SwaziMed’s counterclaims was not rationally connected to the evidence and was based on errors of law. Citing the counterclaim based on tax liability allegedly incurred made by Swazimed, it is alleged that the arbitrator was errant in making a finding that was contradicted by evidence of forensic auditors against Medscheme’s defence. This allegation is not at all borne out by the factual record including the manner in which the issue was disposed of in the award. As it was to be subsequently conceded by Mr Magagula during the hearing of this application, the issue of the tax liability was in fact resolved either in the run up to the arbitration or so soon after the arbitrator had entered in the reference. The reasoning of the arbitrator did not relate to the tax liability per se but was made in the context of resolving the question of costs. SwaziMed’s position herein is obviously untenable if only ultimately for the reason that even if the arbitrator made a wrong turn in his reasoning and his finding that is nor a reviewable error.
 It is also common cause that SwaziMed’s made counterclaim B in the pleadings in which it set out a claim for damages predicated on an alleged breach by Medscheme of a contractual obligation under the agreement to ‘maintain proper, adequate and recognised control procedures in the payment of claims in that Medscheme failed to undertake the said standards of control. The claim was formulated in a manner in which it also suggested delictual liability for want of the exercise of proper care, skill and diligence with the result of certain losses to Swazimed on account of incurred losses for payment of fraudulent claims. The learned arbitrator in his award made an analysis of the evidence led and in his assesment concluded that SwaziMed had failed lead sufficient evidence to establish the alleged breaches and thus discharge its onus of proving the liability. Now whether correct or not or whether SwaziMed can find any flaw in the decision it appears to me to be a matter of judgment on the merits in regard to which error cannot ground a review for the reasons that I have stated repeatedly herein. This ground or allegation is also without substance.
 Having also considered the basis of attack aimed at impugning the award in regard to the dismissal of the third counterclaim C, on the same basis as in the preceding paragraph the approach taken by Swazimed of relying on a perceived erroneous decision on the merits of the counterclaim is legally unsustainable for the reasons stated herein. It has no merit as a possible ground even under the rubrik of misconduct or misbehaviour in terms of section 16 (2) of the Act or the common law to the extent that it is applicable.
 This leads me to the questions I have reserved to be dealt with separately and last as to whether there can be any viable basis for the Swazimed contentions of want of and excess of jurisdiction on the part of the arbitrator on the conceivable basis that these contentions could be sustained as part of the statutory or common law grounds of review. Again I should stress that although Mr Magagula in his submissions both oral and written pitched much of of SwaziMed’s case on the supposed existence of a section 152 procedure for review, which we find no basis for, the common law as an alternate basis for the review features in Prayer 1 of the Notice of Motion.
THE JURISDICTIONAL ISSUES
 In the SwaziMed’s specific grounds as set out in the written submissions the learned attorney for the applicant raises two significant contentions in which he seeks to impugn the arbitrator’s award from a jurisdictional standpoint. They appear to be interrelated and at times conflated with the allegations on which the award is attacked on the basis of error. However upon close examination, these contentions constitute separate and distinct bases of attack.
 The grounds are set out at paragraph 65 of the Applicant’s submissions where at page 32 and 33 it is stated:
“SwaziMed’s case for invoking the supervisory power of the High Court is that the Arbitrator’s Award must be set aside on the following grounds:
65.1 Firstly, the arbitrator in some respects assumed a jurisdiction he did not have and decided a matter he was not entitled to;
65.2 Secondly, in some other respects, he exercised the jurisdiction he had in a manner not permitted by law. The jurisdiction was exercised in a manner which is tantamount to over-stepping the limits of his juridiction.”
 As regards the first point it is contended that the learned arbitrator in some respects assumed jurisdiction he did not have and decided matters he was not entitled to. This is in specific reference to the allegation that in making a finding to the effect that the appointment of the Principal officer of SwaziMed was invalid and therefore in breach of the management agreement, the arbitrator had decided a matter he had no jurisdiction to arbitrate upon hence he exceeded the limits of his authority in the sense of assuming jurisdiction over a matter falling outside of the arbitration clause in reference to clause 21 of the Management Agreement. I propose to deal with this aspect first.
 It is not in doubt that the matter of the appointment of the principal officer was squarely placed as part of the dispute in the pleadings as part of the issues to be adjudicated upon in the arbitration. It was relied on by Medscheme as an integral part of its case and as an alleged instance of SwaziMed’s breach of the Management Agreement. In turn SwaziMed joined issue and disputed these averments in its statement of defence. It is therefore not correct nor can it be an acceptable contention that in addressing and ruling on this issue the arbitrator exceeded his powers at all in terms of the submission. As shall be seen below where I define the submission, when all is said and done the parties by agreement redefiined the scope of the submission by stipulating that the arbitrator was to adjudicate on the issues as set out in the pleadings in terms of Clauses 4 and 8 of the Arbitration Agreement where the arbitrators terms of reference were spelled out. It is chiefly for this reason that the submission that the arbitrator exceeded his powers in deciding the appointment of the principal officer is without merit and must accordingly fail.
 The second ground is premised on the allegation that in interpreting the management agreement not only did the arbitrator commit a ‘patent error’ by misconstruing clause 5 of the agreement but in so doing inferred and made a finding as to the existence of a tacit agreement. His interpretation in that regard is attacked on the dual basis that not only is it allegedly erroneous but also in excess of his power to interpret the agreement within the limits of his mandate as defined in the submission.
 During the hearing of oral argument on this point it was contended further that as Medscheme had not pleaded the tacit agreement and therefore in deciding the a matter not covered in the pleadings the arbitrator although technically acting within his jurisdiction he had in fact strayed beyond the submission and thus exceeded his powers.
The issue of jurisdiction must be viewed against the scope of the submission.
 The management agreement contained a wide arbitration clause. This is set in clause 21 of the Agreeement in fairly expansive terms as follows:
21.1 Subject ot any other provision of this agreement, if any dispute or difference arises between the parties relating to or arising out of of this agreement, including the validity, implementation, execution, interpretation, rectification, termination or cancellation thereto the parties will immediately attempt to settle such dispute or difference failing such settlement within a period of 10 business days the dispute will be submitted for arbitration to and in accordance with the rules of the Arbitration Foundation of Southern Africa (‘AFSA’) at Mbabane”
 It is common cause that when the dispute arose and was declared by Medscheme it was in due course referred to AFSA as the designated arbitration institution as envisaged in the arbitration clause. AFSA is a not-for-profit arbitral body registered and based in the Republic of South Africa whose core function is the facillitation and administration of private arbitration proceedings referred to by disputants; as an institution it hosts the management of the process, the supply of the rules of arbitraton for the process as well as the consensual appointment of arbitrators.
 Under the oasis of AFSA the first respondent, Mr Justice Phillip Levinsohn N.O. was appointed as a single arbitrator to conduct the arbitration proceedings. The arbitrator immediately set about to initiate the proceedings by shortly convening a pre-arbitration (preliminary) meeting with the particular purpose of confirming the submission as well as the conditions of his appointment. This was done via telephone conference on 18 September 2017. A minute of that meeting was transmitted to the parties by the arbitrator shortly thereafter.
 Subsequent to the preliminary meeting, the learned arbitrator drew up and prepared a document captioned ‘ARBITRATION AGREEMENT’. For the sake of clarity and reasons that shall become apparent later in this judgment it is necessary to set out the trenchant paragraphs from the contents of the document drawn by the arbitrator as these are of significant bearing on the submission. I confine myself to the first five items in paragraphs 1-5 of the said ‘arbitration agreement’. They state:
- The Parties
The parties to this arbitration are as stated hereinabove;
- Reference To Arbitration
The parties agree that the disputes between them (referred to in paragraph 4 below) are to be resolved by arbitration in terms of this reference to arbitration
- The arbitrator has confirmed his acceptance of his
appointment as arbitrator;
- The parties confirm the appointment of the arbitrator and acknowledge that the arbitrator was properly appointed as arbitrator;
- The parties confirm that they have accepted the fee
structure of the arbitrator;
- The arbitrator shall have the powers conferred on an arbitrator in terms of the arbitration Act 24 of 1904 (The Act) and this reference to arbitration.
- Arbitral Dispute
The parties confirm that the disputes to be determined in this arbitration are the disputes that appear from the pleadings to be delivered.
- Rules Governing ArbitrationThe Rules of the High Court of Swaziland shall govern and apply to the arbitration commencing on the 24th to 27th October 2017 at Royal Villas, eZulwini except and subject to the provisions of the Act”
 By the use of the term submission in this judgment it is intended to denote a deed of submission or an arbitration agreement or reference in the sense of an agreement to refer disputes differences to arbitration. Section 2 of the Arbitration Act No.24 of 1904 (the Act) defines submission in the following words:
“submission’ means a written agreeement to submit present or future differences to arbitration, whether an arbitrator is named therein or not”
 For the avoidance of doubt the terms submission and arbitration agreement essentially refer to the same thing and are sometimes used interchangeably. It is clear from the facts that the original submssion or arbitration clause in the contract between the parties was supplied by article 21 on arbitration. What is equally clear is that the arbitral clause as pertains certain material terms of the submission were subsequently rectified, supplemented to or varied by the subsequent ‘arbitration agreement’ made by the parties after the preliminary meeting. In this context however it may be necessary to specifically refer to ‘the arbitration agreement’ in reference to the modified submission.
In effect the following elements of the submission were:
- the scope of the submission as pertains the issues in dispute falling for determination; and
- the rules governing the conduct of the arbitration.
 This was by consequent upon the parties agreement after the preliminary meeting inter alia accepting the arbitrators appointment conditions but also varying the submission under clause 21 as pertains the scope of the dispute. It was upon the basis of the revised scope of the submission that the arbitrator duly entered upon the reference.
 I am prepared to accept upon these circumstances that this submission redefined the scope of the arbitrators jurisdiction because it limited it to adjudicating the disputed as set out in the pleadings in terms of clause 4 of the ‘arbitration agreement’. In effect the original submission contained in the contractual arbitration clause was supplemented by the subsequent ‘arbitration agreement’ drawn up and tacitly approved at the inception of the arbitration. The scope of the submission was thus qualified and redefined and to the extent of circumscribing the dispute by limiting the issues to the pleadings, it was tramelled or narrowed down. That sets the tone in regard to clarifying the principles as pertains the source of the submission or arbitration agreement. I intend to deal, in greater detail with the question of the scope of the submission as an aspect of the issues arising out of the arising for determination before the arbitrator in the context of the allegation of excess of jurisdiction raised by the applicant.
 As I understand SwaziMed’s complaint on this aspect of the arbitrator’s award is that in the interpretation of the management agreement the arbitrator strayed from the submission on account of making the inference assuming the existence of a tacit agreement. To this end I shall refer to SwaziMed’s founding affidavit deposed to by the Principal Officer, Mr Peter Simelane which at para 30.3 specifically canvasses this complaint. It is at the heart of the ‘excess of jurisdiction ground’. It is expressed in the following words:
’30.3 ………from a procedural point of view, it was at no stage Medscheme’s case as pleaded that there was a tacit agreement between the parties for the period April 2012 to January 2013, with the result that the necessary averments to found a claim based on a tacit agreement were lacking in the Respondent’s pleadings. Quite obviously, the Applicant was entitled to know what Medscheme’s case is, that is to say that there was a tacit agreement between the parties, in order to be able to plead and respond thereto, and was denied that opportunity. The alleged tacit agreement was not even referred to by Medscheme, other than in cross-examination of me, before the stage of argument. This tacit agreement in any event loses sight of and /or ignores by evidence. I was involved in the drafting of the Agreement and I testified that it was at all times my understanding that the renewal would take place in January of each year whilst the agreement was still in force, so theat there would not be a period during which there would effectively not be an agreement between the parties……”
 It is therefore clear that the nub of the complaint lies in the allegation that the tacit agreement construct or inference relied on by the arbitrator in his interpretation was not canvassed by the pleadings.
 It is also clear from an examination of the pleadings that Medschemes claim for damages represented substantially by the loss of revenue claim awarded by the arbitrator was largely predicated on an alleged breach alternatively repudiation of the management agreement by SwaziMed occasioned by SwaziMed’s allegedly misconceived and thus wrongful premature termination of the management agreement on account of its delivery of a notice of termination leading to the cessation of Medscheme’s tenure as the fund administrators. The damages were consequential loss arising from the alleged breach/repudiation.
 It is not in dispute that the notion of a tacit agreement between the parties was not canvassed at all in the pleadings. In fact the concept of a ‘tacit agreement’ extending or complementing the term of the management agreement is first adverted to in the text of arbitrators written award as a matter that arose during argument in the course of the parties submissions before the learned arbitrator as more fully appears at page 18 of the award where in his analysis he concludes:
‘In the present case we are confronted with the automatic renewal scenario, since we know that no termination notice was given 180 days before the 28th April 2012. (On the assumption that it had been given the agreement would have terminated on the latter date).
The fundamental controversy in this case is the commencement date of the 2012 renewal period. Swazimed contends that this date is 1st January 2012 while Medscheme argues that it is 1st January 2013.
If Swazimed’s submission is correct, the first five year period in terms of 5.1 would be truncated by at least four months when the automatic renewal period is triggered. On Medscheme’s case, the next fixed period of five years would commence on the 1st day of January of the following year.
It seems to me that the parties intended to lay emphasis on the “further fixed period of 5 years”. In other words, that duration should have been no less than 5 years. Swazimed’s approach in terms of which the five year period is shortened undermines this intention.
We are enjoined by the learned judges in the cases cited above to have regard not only the words used in the particular provision but also to the context. A sensible and businesslike meaning is to be given to it must ultimately achieve what the parties intended it to achieve.
Here, as mentioned, it is clear that the fixed period of 5 years was emphasised in 5.2. It is unlikely that the parties in stipulating that the renewal is to take place with effect from January of each year intended to shorten the said fixed period. On the other hand, Medsheme’s interpretation results in an extension of the first year period (April 2007 to April 2012) to January the following year. In my view, that latter situation is the inevitable outcome of the parties expressly inserting the ‘January of each year’ provision in 5.2 and as it were, notwithstanding the date of the signature of the agreeement, projecting the commencement date of the renewal to that month. I agree with counsel for Medscheme’s submission that the parties continued with their contractual relationship during that intervening period and that can be categorised as a tacit agreement until the renewal took effect. It follows in the result that I uphold Medscheme’s interpretation which in my view presents as a sensible and businesslike one. I find therefore that the commencement of the ‘2012’ automatic renewal was the 1st January 2013 and the agreement was to endure until 31 December 2017”
 On behalf of Medscheme its Counsel, Mr Kennedy in his written submissions, countered the applicant’s contentions regarding the ‘tacit agreement’ as set out in Mr Simelane’s founding affidavit that I refer to in para119 above, which contentions were further amplified by Mr Magagula that the inference of tacit agreement had not been pleaded as follows:
“76. Aligned to this, Swazimed also complains that the learned arbitrator created the construct of a tacit agreement which Medscheme did not plead. It ignores the fact that Medscheme was not required to plead a tacit agreeement as no relief was sought in respect of any tacit agreement and Medscheme’s cause of action was not premised on a breach of one or more provisions of a tacit agreement as having given rise to a claim for specific performance or damages in the period April 2012 to January 2013. As such the suggestion that Swazimed was denied an opportunity to plead is spurious, nor can it be said that the learned arbitrator made a contract for the parties. Medscheme’s claims pertained to the period February 2017 to December 2017 which was during the renewal term of the management agreement which was fully pleaded by Medscheme. Swazimed did not dispute”
 The fact remains whether Medscheme relied on the ‘tacit agreement’ construct or not the inference as to the existence of a tacit agreement that ‘bridges’ the imponderable gap referred to by the learned arbitrator in the award, was a vital cog to the entire edifice on which the Medscheme claim depends; it was relied on by the arbitrator to resolve the conundrum presented by the renewal clause in order to maintain the integrity of the mechanism for the renewal of the management agreement with a seamless tenure.
Arose by necessary inference as a function of interpretation
 A word about the pleadings. The foundation for Medscheme’s principal cause was only tersely laid down in the following relevant averment contained in its Statement of Claim as pertains the pivotal material references to the renewal and terminal provisions of the management agreement. They are pleaded as alternative bases to establish an alleged breach or repudiation of the contract by SwaziMed as more fully appears in paras 19,34-38 of the statement of claim. I am impelled to set them out in fullness as they are of high pertinence herein:
“19. In the alternative to paragraphs 15 to 18 and only in the event that it is found that the decision to terminate the management agreement was properly taken by the board, the claimant pleads as set out below:
19.1 the decision to terminate the management agreement with effect from 21st March 2017 is bad in law in that the management agreement terminates on the 31st December 2017;
19.2 the respondent’s notice respondents notice of termination as annexed hereto marked “SOC 4” constitutes a repudiation of the management agreement which the claimant does not accept;
19.3 The claimant is accordingly entitled to an award declaring that the management agreement remains valid and binding on the parties until 31 December 2017.”
 Paragraph 34 of the Statement of Claim largely replicates the same averments to this effect:
“34. The decision to terminate the management agreement with effect from 21st March 2017 constitutes a breach of the management agreement in that the management agreement endures until 31st December, 2017;
35. As a result of the aforesaid breach, the claimant has suffered damages and is entitled to be placed in the position it would have occupied had the respondent performed the obligations in terms of the management agreement until 31 December 2017……
36. In the circumstances the claimant is entitled to payment from the respondent in the amount of E21, 711 310.00 …….in the form of damages representing the management fees it would have earned under the agreement for the period from April to December 2017”
 It is clear from these facts that not only did the Medscheme statement not rely on the inference of a tacit agreement as an element of its cause of action in the formulation of the basis for its claim or indeed its interpretation of the renewal clause in the agreement, it certainly did not plead it at all. That said it does however appear that Medscheme ostensibly advanced arguments or contentions based on this proposition as an essential element of its case, as adverted to by the learned arbitrator in his award in reference to the Medscheme’s submissions during the arbitration. That is central to the enquiry at hand.
 There is thus no doubt that in relying on this contention in his reasoning the learned arbitrator placed capital on the concept as an essential construct to this interpretation of the agreement. In so far as this aspect was not pleaded at all, is it unreasonable to regard its application as going beyond the confines of the pleadings, thus travelling beyond the submission as defined by the parties in clause 4 of the ‘arbitration agreement’? I do not think so and that is the rub.
 Put another way the critical issue is whether in his approach the arbitrator did not exceed his jurisdiction as alleged in the Swazimed papers.
 The focal point that emerges from the circumstances of this arbitration is that in his finding of a ‘tacit agreement’ relied on an attribution of the parties’ intention that the term of the management agreement would be complemented in that manner. The key question was in light of the pleadings-bound parameters of his reference was he at large to so without the parties having either expressly or tacitly enlarged his mandate beyond the scope of the pleadings.
 In Hos+Med Medical Aid Scheme v Thebe ya Bophelo Healthcare Marketing & Consulting (Pty) Ltd and Others 2008 (2) SA 608 (SCA) the Supreme Court of South Africa sitting as a full bench, held that unlike a court of law which has inherent jurisdiction to decide a matter even where it has not been pleaded, an arbitrator has no jurisdiction to decide a matter that has not been canvassed in the pleadings before him or her. I intend to return to this decision for its obvious relevance to the present matter. Before venturing thus far it is necessary to discuss the first principles as pertains an arbitrator’s remit.
 The position espoused in the Hosmed case certainly owes its origin to the common law. Unlike the provision for review of an arbitrators award in section 35 of the South African act, our arbitration act does not specify exceeding ones jurisdiction as a ground for reviewing and setting aside of an arbitral award. However it has long been recognised that even under the South African colonial legislation bearing the geneology of our act, in terms of the common law the courts had the power to set aside an award on account of arbitrators exceeding his jurisdiction under the submission. (see Solomon JA’s judgment in the Dickenson & Brown case; see also Harms J dictum to this effect in the Telcordia case as to the common law standard).
 In paragraph 56 of the Telcordia case Harms JA in homage to Solomon JA had this to say:
“ Solomon JA recognised that it would have been a valid ground for setting aside the award if an arbitrator had exceeded his powers’: to exceed ones power does not go to the merits but to jurisdiction”
 The arbitrator’s duty not to exceed the submission is a fundamental duty. On this the Roman Dutch authorities are clear. Voet says:
“So on the other hand an arbitrator should also take care not to exceed the bounds of the submission, nor dispose of those matters other than those which have been entrusted to his personal discretion, nor do so in any other way than that indicated in the terms of the submission. It should be broadly noted that the whole handling of an arbitrator’s duty and power should be taken from the submission itself; and that nothing is allowed him but what has been there provided that he can bring to pass.
Examples of excess- He will not be able then to determine whatever he likes nor in whatever matters he likes, but only on the matters submitted and to the extent submitted; and taking a broad view of the submission to judge only on those matters and accounts and disputes which were originally between the persons submitting, and not those which have arisen afterwards….” 
 As indicated earlier I am proceeding on the understanding and the fact that the scope of the original arbitration agreement which was couched in expansive terms to include generally broad powers and latitude to interpret the management contract, was redefined and narrowed down to the matters pleaded in the subsequent arbitration Agreement.
 The learned author Jacobs takes the view that where the original arbitration agreement has been consensually amended or rectified by the parties by a further agreeement as in this case, it is the new terms of reference that will prevail. He states:
‘However, if there is a further deed defining the aspects that are to be entertained by the arbitrator, then that is the document that will be referred to and the parties will be bound by the terms of the deed of submission. Similarly whereafter an action had commenced it was agreed that all matters in dispute in the action be referred to an arbitrator for decision, that this meant that the submission was rightly construed as not including any claim not set forth in the pleadings. (Re Curator of Church of England v Colley (1888) 9 NLR 45; Also South African Evangelisation & Missionary Trust v Gumbi 1975 (3) SA 636 (D).
Whilst it is clear that parties can either by an actual or by a tacit agreement enlarge the ambit of the submissions, if the arbitrator without such agreement travels outside the scope of his submission the award will be bad. (See Williams v Estate Williams (1902) 19 SC 443; Harris v Aluminium Solder Co. (Pty) Ltd 1954 (3) SA 388 (D); Van Boeschoten N.O. v The French Belgian Co. of the Northern Railway of the SAR Ltd (1897) 4 OR 424)”
 In Roberts Construction Ltd v Dominion Earthworks Ltd 1968(3) 261 Jansen AJA revising the rules as to pleading of implied contracts relied on the dictum in an early case of Paris v Nigel Gold Mining Co. 1903 TS 132 at para D, to wit:
“The general principle would require a statement of the facts or circumstances constituting an implied contract relied upon, or put in another way, the facts or circumstances from wich such contract is inferred”
 It merits repeating that during arguments before us Medscheme maintained that it did not plead a tacit agreement as it did not seek to rely on the same; its claim thus was not dependent on an inference thereof and further that whilst conceding the arbitrator’s reliance on the finding as an implied term, such inferential reasoning was not beyond the arbitrators remit to interpret the agreement as it arose by necessary implication, ex lege (by operation of the law) and as such did not require to be specifically pleaded. That goes against the principle stated in the Paris case above. I must also say that am also not impressed by this contention as regardless, Medscheme found it convenient if not necessary to resort to the device of the tacit agreement in its submissions to the arbitrator. Whilst it may very well be that Medscheme did not find it necessary to plead the point, nonetheless the Honourable arbitrator found it a necessary and material inference which he deemed supportable as a proposition and in so doing he would by Medscheme’s stance necessarily have to travel outside the scope of the pleadings as he did. In effect he sought to lend business to the efficacy on the basis of what he inferred was the intention of the parties.
By accepting and adopting the contentious construction that the management agreement was extended and renewed with effect ‘not from ‘April 2012’ but January 2013’ and that in the interim a tacit agreement prevailled, in order to stitch the two disparate terms together, was a momentous, far-reaching conclusion that Swazimed had not had neither the opportunity of being forewarned about by way of pleadings nor afforded an opportunity of making appropriate representations or averments nor lead evidence in defence of its own contervailing interpretation.
 I now revert to the Hos+Med decision to which I made a passing reference to earlier. Its circumstances and the legal principles it wrought resonate and are most instructive to the matter at hand. The salient feature of that case are that, as in this case that case involved a dispute arising out of a management service agreement between a medical aid scheme (Hosmed) and its erstwhile administrators (Thebe). Because of the pertinence of the context to the crucial issues arising during the arbitration and the litigation which ensued thereafter, I set the salient background facts of this case. The case before the Supreme Court had its origins in an arbitration between Hosmed and Thebe. Hosmed a medical aid scheme and Thebe a broker and administrator became embroiled in a dispute over a claim by Thebe for certain brokerage and administration fees. The parties had entered in a series of contracts in terms of which Thebe would introduce new members to the Hosmed scheme in consideration of certain introduction and administrative/service fees were payable.
 In the course of their dealings a dispute ensued over Hosmed’s obligation to pay certain fee claims which was eventually referred to arbitration in accordance with an arbitration agreement between the parties.
 In terms of the arbitration agreement it was agreed inter alia that:
‘4 The issues to be determined by the arbitrator are the issues contained in the pleadings referred to at clause 8 below………..
7.1 The arbitration shall be conducted in accordance with the rules of the High Court, subject to any specific directions that the arbitrator may give in regard to the conduct of the arbitration;
7.2 The arbitrator shall have full powers in connection with the arbitration, and in particular, without limitation, the arbitrator:
7.2.1 Shall have the power set forth in the Arbitration Act, as amended, or any replacement Act;
7.2.2 May make such award or awards, whether interim, provisional or final, as he may consider appropriate.’
8.1 The parties have agreed that the pleadings filed in the High Court action . .. will serve as the pleadings in this matter; . . .’
 Further the agreement provided for an appeal to an arbitration Appeals Tribunal as follows:
“16 The award made by the arbitrator shall be final and binding on the parties, subject to the right of appeal contained at clause 17 below……
17.1 The final award made by the arbitrator shall be subject to a right of appeal;….
17.4 Such appeal shall be heard by a panel as agreed to within ten court days [after notices of appeal and cross appeal had been lodged] failing which three arbitrators shall be nominated and appointed by the Arbitration Foundation of South Africa. . . .’
 In the event the arbitrator heard the arbitration incuding the hearing of extensive evidence on the issues and having made an interim award had adjourned the proceedings for purposes of determining quantum aspects. In the intervening time Hosmed brought an appeal to the Appeals Tribunal constituted in terms of clause 17 of the arbitration agreement.
 A contentious point in the Appeal was the reliance by Hosmed on the principle of ‘unanimous assent” as a defense to Thebes fee claims as an essential decisive element as to its obligations to Thebe under the contract. The basis for Hosmed’s stance had been that Thebe’s sole director had agreed to the disposal of Thebe’s right to the contentious fees claimed for ongoing services to Hosmed’s members. The principle of unanimous assent is to the effect that where all the shareholders of a company agree to a matter that normally requires a resolution of a general meeting of the company the need for a formal resolution falls away. Upon Hosmed lodging the appeal the Arbitrator had not made his final award.
 The arbitration appeals tribunal in its award upheld Hosmed’s defence and averment of unanimous consent to the effect that there was unanimous assent to the disposal of the fees by virtue of which Thebe had disposed of its claim for the fees claimed. The presumption relied on in Hosmed’s defence stemmed from the approval by Thebe’s managing director of succeeding amending agreements on terms whereof Thebe gave up its right ot claim the fees for the ongoing Services had turned on the application of the Turquand rule as to requisite corporate approvals.
 That however is incidental. The critical element of interest to these proceedings is that the Appeals Tribunal had upheld Hosmed’s argument of the unanimous assent defence although this issue had not been specifically pleaded in line with clause 8 in the parties arbitration agreement and despite an opportunity for amendment to incorporate it had been available on account of numerous amendments by both parties to the pleadings including during the arbitration hearing.
 To reach that conclusion the arbitration appeals tribunal had determined that despite the fact that the issue had not been pleaded, on the strength of an Appellate Division cas of Shill v Milner AD 101 at 105, the issues according to the tribunal had been substantially broadened druing the hearing before the arbitrator to include the defence of ‘unanimous assent’. The Appeals Tribunals award was challenged by Thebe before the High Court which found in its favour and set aside the Appeals tribunals’ award. Hosmed appealed the review decision of the High Court to the Supreme Court.
 In my mind the following analysis and discussion of the circumstances, principles and legal authorities on the parameters of an arbitrators jurisdictioin in relation to the scope of a submission in the Hosmed case resonates presently in so far as the matter is almost at all fours with the instant matter before us. At the risk of prolixity it is worth quoting the judgment ad verbatim in the paragraphs 30 to 37:
“ In my view it is clear that the only source of an arbitrator’s power is the arbitration agreement between the parties and an arbitrator cannot stray beyond their submission where the parties have expressly defined and limited the issues, as the parties have done in this case to the matters pleaded.
Thus the arbitrator, and therefore also the appeal tribunal, had no jurisdiction to decide a matter not pleaded. Hosmed’s rejoinder put in issue Thebe’s allegation that there had been compliance with section 228. Had Hosmed intended to rely on the principle of unanimous assent it would have had to plead it specifically because it amounts to a classic confession and avoidance. There is a fundamental difference between a denial (where allegations of the other party are put in issue) and a confession and avoidance where an allegation is accepted, but the other party makes an allegation which neutralises its effect – which is what the raising of unanimous assent would seek to achieve. It is of course possible for parties in an arbitration to amend the terms of the reference by agreement, even possibly by one concluded tacitly, or by conduct, but no such agreement that the pleadings were not the only basis of the submission can be found in the record in this case, and Thebe strenuously denied any agreement to depart from the pleadings.
 The appeal tribunal held, however, that it was entitled to go beyond the pleadings where the issue had been traversed in evidence. It relied, as I have said, on Shill v Milner where De Villiers J A said: ‘The importance of pleadings should not be unduly magnified. “The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full inquiry. But within those limits the Court has wide discretion. For pleadings are made for the Court, not the Court for pleadings. Where a party has had every facility to place all the facts before the trial Court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal merely because the pleading of the opponent has not been as explicit as it might have been.” Robinson v Randfontein Estates GM Co Ltd (1925 AD 198).’ Relying on these dicta in Shill v Milner and in Robinson v Randfontein Estates the appeal tribunal held, as mentiond in para 22, that the issues were ‘substantially broadened during the hearing before the arbitrator . . . to include a defence of unanimous assent’.
 I have already said that the appeal tribunal was not entitled to take this approach: its powers were conferred by the arbitration agreement and it did not have the power to go beyond that. But even if, for the sake of argument, it were accepted that the appeal tribunal did have jurisdiction, it can hardly be contended that the question whether there was unanimous assent was properly canvassed before the arbitrator. Counsel for Hosmed said that that was the issue on his mind when he cross-examined Laird on recall. But he conceded that he did not communicate this expressly to the witness or to Thebe’s counsel. I have set out the relevant evidence above. It is far from clear that what counsel was attempting to elicit from Laird was whether the sole shareholder in Thebe had assented to the disposal of the right to claim fees for ongoing services. At its highest, Laird conceded that it would have been pointless for McCulloch to call a meeting with himself to pass a resolution. But Laird could not testify on what had in fact happened since he had not been part of Thebe when the amending agreements were concluded.
 Hosmed contends that Thebe did not object to the questions asked of Laird. It is not clear why they should have done so: it was not obvious that a new issue was being raised, and even if counsel for Thebe had realized what was on Hosmed’s counsel’s mind, he was entitled to remain silent knowing that the issue had not been pleaded. But there is no point in examining this issue further. On any basis, the question whether there had been unanimous assent, obviating the need for a meeting and a special resolution, was not really, let alone fully, canvassed in the evidence. It was first raised in the oral argument before the arbitrator, and did not feature even in counsel’s heads of argument which form part of the record.
 The facts on which the Shill v Milner principle can be applied, even if it had been open to the appeal tribunal to rely on it, were not traversed in evidence. There was thus no basis for the appeal tribunal to find that there was unanimous assent to the disposal of the right to claim fees for ongoing services.
 In the circumstances the appeal tribunal exceeded its powers: it went beyond the terms of the arbitration agreement. This is a clear case where the arbitration appeal tribunal exercised a power that it did not have. This court recently referred with approval to the decision of the House of Lords in Lesotho Highlands Development Authority v Impreglio SpA where Lord Steyn distinguished between cases where a tribunal mistakenly exercises a power that it does have, and those where a tribunal exercises a power that it does not have. In the latter type of case the tribunal exceeds its power, and, under our Arbitration Act, that warrants the setting aside of the order. This is the position stated earlier in Dickenson & Brown v Fisher’s Executors applied by the court in Telcordia. The judgment of Harms JA in Telcordia embodies a comprehensive account of the bases on which an arbitrator’s award may be set aside and there is no need to repeat what is said in that case.
 In view of the finding that I make that the appeal tribunal exceeded its powers, it is not necessary to consider whether its decision on unanimous assent constituted a gross irregularity”
 It is my considered view that the above statement, made as it is with high erudition and clarity of principle, constitutes a correct position that should equally apply to the facts of this case. It is consistent with the principles and seminal case law that I have traversed in this judgment regarding the requisite appropriate test for review of arbitral awards of which excess of jurisdiction is one. Commercial Businesslike
The central issues in this case involved in essence a choice between competing constructions and the learned arbitrator in invoking the ‘commerciality doctrine’ does no more than investigate which between the parties’ respective positions yields a reasonable businesslike result. The contract before him was one involving a clause whose plain meaning on an ordinary reading of the words used was obscure or ambiguous at best, but dare I say, was more incoungrous in the sense of the meaning or language conveyed by the text spelling out the tenure of the agreement, led to an absurdity and lack of clarity.
It is one where the parties competing constructions would be articulated in the pleadings. With hindsight we now know that the Medschem position was only more fully articulated or clarified in the parties submissions during closing arguments. Thence, at least on the part of the version and iteration of the Medscheme position, came to be revealed the most disastrous consequence to the Applicant – the proposition that to make commercial sense of the ‘renewal clause’ entailed the interposition of a ‘tacit agreement’ for a supplementary period before the renewal ‘proper’ took effect in January 2013. There came to fore a novel construct.
Justice Robert McDougall gives an insightful discussion of the paramount principles informing approaches to interpretation of commercial contracts in the adjudication of disputes. His proposition focuses on the doctrine of ‘commercial efficacy’ as an interpretive tool. In his paper Interpretation of Commercial Contracts – Hunting for the Intention of the Parties he cautions against the pitfalls that face the trier of fact in the exercise of construing a contract in the following words:
“Choosing between constructions:
93. Finally, the court’s view of “commerciality” is often used as a basis for deciding between competing constructions. This should not be a matter of surprise. Where there are two available interpretations, it should be assumed that the reasonable businessperson would have understood the more commercial one to be the one that is chosen. The principle is obvious, but what is less so is the basis on which courts should analyse “commerciality”.
94. This principle, in my view, should not be taken too far, but rather should only be exercised in relatively clear cases. The basis for that reservation is the caution of the High Court that commercial common sense, although an apparently objectively ascertained matter, may itself be a topic upon which minds may differ and in respect of which an imputed consensus is impossible. (Maggbury Pty Ltd v Hafele Aust Pty Ltd (2001) 210 CLR 181 at 198  (Gleeson CJ, Gummow and Hayne JJ).
95. Another reason for restraint is that, although a certain construction may appear overly favourable to one side, the court is simply not (nor can it be) privy to the negotiations of the parties. It will not know, for example, whether this provision was traded for a concession elsewhere. Consequently, the court should only be concerned with avoiding unreasonable, as opposed to unfavourable, results. Finally, the question of commerciality only arises where the court is required to choose between two available constructions; it is no part of the mandate of a court to rewrite a contract which has turned out to be a commercial disaster for one side. Except in exceptional circumstances (which I will discuss shortly), the clear words of the contract cannot be overridden. As a matter of practical reality, however, the more unreasonable the outcome, the clearer the language will need to be to sustain it.”
Further the Hon McDougal proposes the following guidelines as elemental in the approach to interpretation to illustrate the scope of the mandate:
“100 In addition to these case examples, there are some further points of guidance about the role of commercial considerations in determining between competing meanings:
(1) first, commercial common sense cannot be invoked retrospectively, but must always be done prospectively. (Arnold v Britton  UKSC 36 at  (Lord Neuberger). The fact that a contract turned out to have disastrous consequences for one or indeed all parties is only relevant to the extent that that fact could have been anticipated at the time of the agreement. This much follows from the fact that a contract is interpreted according to the objective understandings at the time the agreement was made.
(2) Second, in more difficult cases involving complex contracts, it may sometimes be necessary to undertake an iterative process of determining which construction is the most commercially sensible. This involves checking each of the rival constructions against the remainder of the contract, and investigating the associated consequences.(HP Mercantile Pty Ltd v Hartnett  NSWCA 342 at  (Leeming JA).
(3) Third, in many cases, the more ‘commercial’ construction may not be immediately apparent. In such cases, it is suggested that less reliance should be placed on commerciality as a determining feature.
(4) Fourth, and as I have attempted to emphasise throughout this paper, commercial considerations should only be given effect within the scope of the language of the parties, and to the extent that they rationally inform an understanding of the parties’ presumed intentions. This is because, as Lord Neuberger explained:
“unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract”.
(See Arnold v Britton  UKSC 36 at (Lord Neuberger))
In the instant case I cannot conceive of how the interpretation exercise could be carried out by the Honourable Arbitrator outside of those considerations but within the mandate. To stay true to the submission it appears to me inevitable that the exercise would involve examining and investigating the full parameters of the parties respective and rival constructions in line with the arbitrator’s remit as per the arbitration agreement wherein the parties elected to define the issues in the pleadings. To put it another way, if Medscheme’s construction of the problem clause entailed, as an essential (indespensable) element of its case, the interposition of a tacit agreement between the date of expiry of the first term of the contract and January 2013 in order to give the incoungruous clause a businesslike or commercial efficiency, that version would have to be put to the respondent and they would have to respond to it in the pleadings; an opportunity of leading extrinsic evidence to fully give context to the circumstances of the agreement, the intention of the parties and other relevant considerations would have to be afforded all the parties enabling the arbitrator to investigate the two opposing versions in their fullness.
I think that is exactly what the Honourable Justice McDougal refers to when he characterises the interpretation of commercial contract clauses as an ‘iterative process of determining which construction is the most commercially sensible’ and that this involves ‘checking each of the rival constructions against the remainder of the contract, and investigating the associated consequences”.
I think the approach taken by the learned arbitrator of invoking the ‘commerciality’ principle in the abstract outside of the pleaded matter was problematic in so far as it involved an analysis of an aspect without proper ventillation of both sides of the parties versions or constructions of what would be a ‘commercially sensible’ and ‘reasonably businesslike’ version. I could not put it any simpler than than. There lies the difficulty with the approach he adopted in relation to the submission.
The principle in Hosmed has been affirmed in a subsequent Cape Division decision of the South African High Court in Three Cities Management (Pty) Ltd v Bantry Bay Management Company (Pty) Ltd and Ano. (7474/2017) ZAWCHC 109 although on the facts the latter case was deemed distinguishable from the circumstances in the Hosmed case. In the Three Cities the arbitrators decision was impugned on the basis that the arbitrator was not entitled to determine any issue relating to ‘tacit cancellation’ given that this point or contention had not even been raised in the proceedings and a version thereof advanced by the first respondent in the alternative rendered it mutually destructive of the arbitrators finding. The challenge followed along the lines that had the respondent intended to rely on an agreed or tacit relocation, it would have had to at least plead this and put it to its witness. It was thus contented that the arbitrators conduct in allowing and recognising the defence of tacit cancellation had in effect denied the applicant from having its case fully and fairly determined. As I have said the Court in Three Cities did not fault or question the principle but only found that the question of tacit cancellation was implicit and a necessary corollary to the respondent’s submissions on pleadings thus hardly novel. I think that certainly is not the case in casu.
 On the facts and circumstances of this case, regardless of the merit of the decision and the interpretation reached by the arbitral tribunal, the approach taken by the learned arbitrator constituted a departure from the submission. I am inclined to find that the question as to whether there was a tacit agreement being a matter neither covered nor properly canvassed by way of evidence and attendant submissions before the arbitrator was fundamental to the dispute. As stated earlier it is common cause that the only time the matter was raised and dealt with in evidence before the arbitrator was during the cross-examination of Mr Peter Simelane. As in the Hosmed case above the matter was raised for the first time during oral submissions and for such a weighty pivotal matter to have been dealt with in this fashion was in my view prejudicial to Swazimed’s conduct and or prosecution of its defence. On this basis it is my view that the arbitrator exceeded his powers in this regard by going beyond the province of the submission as delineated by the pleadings.
 This is not a matter where the arbitrator lacked jurisdiction to interpret the management agreement but one where he strayed and travelled beyond the conferred jurisdiction as defined in the arbitral agreement concluded before him. It is therefore my finding that at this instance the learned arbitrator exceeded his jurisdiction the effect of which vitiates his award and renders it liable to be set aside as a nullity. In the event Swazimed’s challenge on the arbitrators award succeeds on a key and decisive issue – that the arbitrator exceeded his jurisdiction on the identified aspect in a key finding informing his award with the result that it is vitiated and must accordingly be set aside.
 Finally I come to a matter that has given me some difficulty. It concerns the specific prayers for relief as set out in the notice of motion; in the event the court intervenes and sets aside the arbitrator’s award. Much obscurity arises from a clear misconception of the nature of arbitral submissions or arbitration agreement. To suggest that this court can ‘remit’ the matter to another arbitrator and not to the first respondent in itself is a contradiction in terms. In its plain meaning of the word ‘remit’ denotes ‘to return to’ or ‘refer back’. That can only mean referring the matter back to the arbitrator appointed by the parties. In terms of the arbitration act a matter may be remitted to an arbitrator under section 15 of the said Act. I would make bold to say that the latter is the sense in which remission of the matter to an arbitrator is used in the act. Clearly this is not what is desirable as far as SwaziMed is concerned. It is another question whether it is in any case either practicable or feasible given what has come to pass.
 The second difficulty is presented by SwaziMed’s plea to refer the matter on the basis of a new arbitration agreement. This is another misconception of an arbitration agreement. As indicated earlier, a reference, submission or arbitration agreement is the raison d’etre for arbitration and exists on a consensual basis. Without it there would have been no basis for the arbitration under review nor would there be any for reconstituting the arbitral process. Its primary source is Clause 21 of the Management Agreement and that has not changed. It is that clause 21 whose scope was rectified by the parties for the proceedings under review. It follows therefore it is the only substratum under which a ‘new’ arbitral process can be resumed.
 I am mindful that the counsel for Medscheme did not address us on the basis of a setting aside of the award eventuating and as to the preferable procedural options in that event. However it seems unlikely to me that given the highly contentious history of this matter, and SwaziMed’s clear preference that the matter be placed before a different arbitrator, that it would be feasible at all to refer the matter to the original arbitrator in these circumstances. Further the question whether it may not, given the already expressed findings of the learned arbitrator, be a foregone conclusion, is one that is highly relevant. However it is not one that is necessarily decisive in the circumstances. This court reserves a discretion which it must exercise judiciously with a modicum of realism and a measure of practicality in the circumstances.
 It is therefore this court’s considered view that the proper and reasonable course to follow is to have the dispute subjected to a fresh arbitration before a new arbitrator to be appointed in terms of the arbitration clause (Clause 21) of the Management Agreement.
 On the question of costs we determine that in light of SwaziMed being substantially successful in the challenge to the arbitral award they are entitled to the costs of this application. In sum we make the following orders:
- The arbitrators award dated 29th March 2018 is hereby set aside;
2. The dispute between the parties is referred to a new arbitrator to be appointed in terms of clause 21 of the management agreement between the parties;
3. The 2nd Respondent is ordered to pay the Applicant’s costs of this application;
C S MAPHANGA J
For the Applicant: Mr. M. Magagula
Magagula Hlophe & Associates
For the 1st Respondent: ADV. P. Kennedy, S C (with him Mr. C. Bester)
Robinson Bertram and Co. (Instructing Attorneys)
 I have had the advantage of reading in draft the very comprehensive judgment by my Learned Colleague Maphanga J. I am unable to agree with the conclusion therein that the learned Arbitrator exceeded his jurisdiction and consequently that the award by the arbitrator must be set aside.
 Before embarking on the merits of the application, I think certain legal principles regarding the role and powers of the court pertaining to arbitration proceedings must be restated and these have been, in the main, eloquently stated in the majority judgment and these are as follows:-
[158.1] In determining whether an arbitrator has exceeded his or her powers, the court may admit extrinsic evidence and is not solely confined to the record of the proceedings and where the agreement either expressly or by necessary implication places the determination of the scope of the dispute within the powers of the arbitrator, then, in the absence of fraud or some other unlawful act on the part of the arbitrator, or some patent error on the part of the arbitrator regarding his interpretation of his mandate or jurisdiction, the parties are legally bound by his identification of the issues under consideration or in dispute. (See Kroon Meule cc v Wittstock t/a JD Distributors 1999 (3) SA866 (E)).
[158.2] Where an arbitrator strays beyond the terms of the submission, the award would be set aside by the court on review, as being ultra vires or ineffectual. Again, Vide Cone Textile (PVT) Ltd v Ayres & Another 1980 (4) SA 728 (ZA).
[158.3] A court will not generally interfere with an arbitrator’s award where the arbitrator has made an error or mistake of law or drawn a wrong inference from the evidence before him. (See Clark v African Guarantee & Indemnity Co. Ltd 1915 CPD 68).
These are the powers of the court as enshrined under the common law and may not necessarily be applicable where the court exercises its Supervisory powers over lower courts and tribunals as pleaded by the applicant in the instant case. It is, however, noted or observed that Counsel for the applicant did rely on the issue of excess of jurisdiction or ultra vires as one of the applicant’s grounds in this application and indeed it is upon this ground that the majority judgment finds in favour of the applicant.
 The Supervisory powers of this court as stipulated in section 152 of the Constitution were broadly stated by the Supreme Court in Director of Public Prosecutions v Sipho Shongwe (12/2018) SZSC 23 (22 August 2018). There, the Court stated that “there should be set out clear grounds for the application, spelling out the nature and gravity of the [act] complained of and the specific remedy required” and the issue complained of must be ‘fundamental, substantial, material, grave or so serious as to go to the roots of the matter, or, in other words, the error must be extant on the face of the record, that is, it must be prima facie, to import the supervisory jurisdiction of the court” (Per para 44 & 45). In Carillion Irishenco Formerly Known as Irishenco Construction v Dublin City Council & John Higgins  IEH, a case cited to us by Counsel for the Applicant, the court held that an arbitration award will only be set aside if the act or conduct complained of is so fundamental ‘that it cannot be allowed to stand or remain unchallenged’ or if ‘it smacks of injustice or unfairness’ (per paragraph 112).
 Although obiter the court in Sipho Shongwe (Supra) stated that the issue of excess of jurisdiction or ultra vires may be a ground for invoking the Court’s supervisory powers (para 43 – 45). See also Tlhabologang Molatlhegi v Col. R.Z. Christmas and Ano. Botswana Court of Appeal CACLB-020-10 para 8-9. It is observed herein that although the Supreme Court in Sipho Shongwe (supra) was not pointedly dealing with the Supervisory powers of this court over lower courts and tribunals but its own powers, the court was magnanimous or generous to point out that its Supervisory powers in terms of Section 148(1) of the Constitution were similar in nature and scope to those of this court as provided under section 152 of the constitution, (per para 40). The court further pointed out that this power or jurisdiction must be sparingly and cautiously exercised, ‘to avoid it having a chilling effect on the lower courts or tribunals and the appearance of undue interference’. This jurisdiction must in my view, be invoked and exercised in clear or obvious cases and where for instance, an ordinary appeal or review would not be appropriate or available to the litigants.
 In exercising its power of review of arbitration awards or proceedings, a court would generally be very slow to interfere with such awards. In Three Cities Management (Pty)Ltd v Bantry Bay Management Company (Pty) Ltd, case 7474/2017 the court stated as follows:-
‘ Judge F D J Brand, writing about the judicial review of arbitration awards, has noted: ‘the question whether or not the arbitration had strayed beyond the pleadings of a particular case is clearly one to be decided on the facts of that case. But it is clear that in line with their general reluctance to interfere with arbitrator’s awards, the courts are prepared to adopt a rather generous approach to pleadings’. FDJ Brand “Judicial review of Arbitration Awards” 2014 Stellenbosch Law Review 247 at 255.’
Again, in Amalgamated Clothing & Textile Workers Union v Veldspun (Pty) Ltd 1994(1) SA 162(A) at 169, Goldstone JA stated that:
‘when parties agree to refer a matter to arbitration, unless the submission provides otherwise, they implicitly, if not explicitly (and, subject to the limited power of the Supreme Court under section 3(2) of the Arbitration Act), abandon the right to litigate in courts of law and accept that they will be finally bound by the decision of the arbitrator. There are many reasons for commending such course, and especially so in the labour field where it is frequently advantageous to all the parties and in the interests of good labour relations to have a binding decision speedily and finally made. In my opinion, the courts should in no way discourage parties from resorting to arbitration and should deprecate conduct by a party to an arbitration who does not do all in his power to implement the decision of the arbitrator promptly and in good faith.’
 In the instant application, it is argued that the arbitrator exceeded his jurisdiction by holding that there existed a tacit agreement between the parties. The applicant and the majority decision holds the view that the arbitrator had no power to make such a conclusion inasmuch as the issue of a tacit term or agreement was never raised in the pleadings before the arbitrator. As stated by Maphanga J, ‘... the nub of the complaint lies in the allegation that the tacit agreement construct or inference relied on by the arbitrator in his interpretation was not canvassed by the pleadings.’
 Whilst I accept that there was indeed no use of the phrase or term ‘tacit agreement’ in the pleadings, viewed holistically and in a common-sense-like manner or approach, there was nothing in the pleadings that prevented the arbitrator from reaching the conclusion he reached, namely that at one point or stage, the relationship between the parties was governed by a tacit agreement or term. In law, a tacit agreement or term is by its very nature not an expressed term. It is inferred from the proven or established conduct of the parties. It must be the only reasonable inference to be drawn under the circumstances and it was such an inference in this case. See Swaziland National Provident Fund Board v Kenneth Van Zyl (512/2017)  SZHC 15 (14 February 2020). But more importantly in this case, whether the arbitrator has reached or drawn a wrong inference on the evidence, his decision is not reviewable on this ground (See Clark (supra).
 It is fair to say that the whole dispute between the parties, and consequently the arbitration proceedings centred around an alleged breach of the contract by the applicant. The applicant denied that it had breached the agreement. As of necessity and logic or common sense, the arbitrator was called upon to interpret the management agreement. This was the only way, I dare say, he would have been able to determine whether there had been a breach or not.
 In his award, the Learned arbitrator expressed himself as follows regarding the tacit agreement, namely:-
‘The fundamental controversy in this case is the commencement date of the 2012 automatic renewal period. Swazimed contends that this date is 1st January 2012 while Medscheme argues that it is 1st January 2013. If Swazimed’s submission is correct, the first five year period in terms of 5.1 would be truncated by at least four months when the automatic renewal is triggered. On Medscheme’s case, the next fixed period of five years would commence on the 1st day of January of the following year.
It seems to me that the parties intended to lay emphasis on the ‘further fixed period of 5 years’. In other words, that duration should not be less than five years. Swazimed’s approach in terms of which the five year period is shortened undermines this intention.
We are enjoined by the Learned judges in the cases cited above to have regard not only to the words used in the particular provision but also to the context. A sensible and business-like meaning is to be given to it and it must ultimately achieve what the parties intended to achieve.
Here, as mentioned, it is clear that the fixed period of 5 years was emphasized in 5.2. It is unlikely that the parties in stipulating that the renewal is to take place with effect from January of each year intended to shorten the said fixed period. On the other hand, Medscheme’s interpretation results in an extension of the first year period (April 2007 to April 2012) to January of the following year. In my view, that latter situation is the inevitable outcome of the parties expressly inserting the ‘January of each year’ provision in 5.2 and as it were, notwithstanding the date of signature of the agreement, projecting the commencement date of the renewal to that month. I agree with Counsel for Medscheme’s submission that the parties continued with their contractual relationship during the intervening period and that can be categorized as a tacit agreement, until the renewal took effect.
If follows, in the result, that I uphold Medscheme’s interpretation which in my view presents as a business-like one. I find therefore that the commencement of the ‘2017’ automatic renewal was on the 1st January 2013 and the agreement was to endure until 31st December 2017.
Given the finding that the agreement would terminate on 31st December 2017, Swazimed’s May 2016 letter [purporting to terminate the agreement] was premature and constituted a breach of the agreement. It follows that Medscheme is entitled to damages. The amount of damages awarded is designed to place Medscheme in the financial position it would have been in had the agreement run its full course to December 2017.”
 I cannot find any fault with this reasoning by the arbitrator. He did nothing more than what he was entitled or had jurisdiction to do. That is, interpreting the management agreement. It was this agreement that governed the parties and it was this agreement that had been allegedly breached by the applicant. To argue that he could not interpret the agreement the way he did is in effect to assert that he was expected to interpret it in a particular way and not use his own independent knowledge, expertise and judgment. That is totally illogical and untenable in my view. It is tantamount to saying he had no mandate or jurisdiction to interpret the agreement at all, which in turn amounts to saying he had no jurisdiction to determine whether there had been a breach or not. That, in my humble view, is absurd in the circumstances. Ultimately, it was a matter of construction or interpretation of the terms of the management agreement, nothing more. Whether his interpretation of the said agreement was correct or not is a matter, entirely different. For it to be a ground warranting intervention by this court, it must fall under one or all of the grounds already listed above; or more specifically, it must have been outside his jurisdiction in terms of the pleadings or submission.
 The application or challenge to the arbitration award in Three Cities (supra) was substantially based on the judgment in Hos+Med Medical Aid Scheme v Thebe ya Bophelo Healthcare Marketing and Consulting (Pty)Ltd  ZASCA 163; 2008 (2) SA 608(SCA) to which the majority judgment also relies. The court summarized the facts in Hos+Med as follows:-
‘ Respondent brought an application for the review and setting aside of the decision of an arbitration appeal tribunal on the ground that it exceeded its powers and committed gross irregularity in terms of Section 33 of the Arbitration Act by making a finding on an issue which had not been pleaded. The tribunal held that, notwithstanding that the issue had not been pleaded, it was entitled to go beyond the pleadings as the issue had been traversed in evidence. Briefly the facts, to the extent that they are relevant to the present dispute, were as follows: In order to facilitate the conduct of a medical aid scheme run by Hosmed, it used the services of brokers and facilitators. To this end, it entered into a contract with Thebe engaging it to introduce new members to the scheme for which an introduction fee was payable and requiring it to provide on-going services to members of the scheme for which another was payable. As a result of certain amendments to regulations under the Medical Schemes Act, the parties considered that it was no longer permissible for Thebe to charge a fee for on-going services. The agreement was then entered into which varied the initial agreement so as to delete this clause which had provided for the payment of Thebe for on-going services.
 The regulations under the Medical Schemes Act were again amended which made provisions for brokers to charge fees for on-going services. A further agreement was then concluded, making provision for Thebe to be able to charge fees for its on-going services to Hos+med Members. For a time Thebe made no such claims because it presumably thought that it was not able to do so pursuant to the earlier amendments. Later it sent invoices to Hos+med claiming a substantial sum of money. Hos+med denied liability for payment thereof and eventually the matter went to arbitration.
 The defence raised was that the amending agreements by which Thebe gave up its right to claim fees for on-going services to Hosmed members constituted a disposal of a greater part of Thebe’s assets but had not been approved by a general meeting of Thebe’s shareholders, pursuant to Section 228 of the Companies Act 61 of 1973. Hos+med therefore alleged that Thebe has represented that its managing director had authority to conclude the amending agreements, that Hos+med had relied on such representations and further had entered into the amending agreements in good faith on the assumption that the internal requirements of Thebe had been complied with (the so called Turquand Defence).
 When the arbitration commenced, the disputes to be determined were whether the amendment to the regulations in 2001 precluded Thebe from claiming fees for on going services and whether the amendments to the parties’ agreements in 2001 were in contravention of Section 228 of the Companies Act.
 The matter was finally determined by the appeal tribunal which found that Thebe was entitled to claim the fees initially on the basis that there had been unanimous consent to the disposal and that the amending agreement were thus enforceable; that is it was the case where all the shareholders of the company had agreed on the matter which ordinarily would require resolution of a general meeting of the company. Given unanimous consent the need for the formal resolution had fallen away. According to Thebe the arbitration appeal tribunal had exceeded its powers and committed a gross irregularity in terms of Section 33 of the Arbitration Act.’
 Clause 5.2 of the management agreement provided for automatic renewal of the term of the agreement for a further 5 years in the absence of either a termination notice in terms of the agreement or the conduct of negotiations to renegotiate any renewal and ancillary terms.
 The Act is a colonial statute modelled on what has been at times referred to as first generation arbitration legislation in the region. In other jurisdictions within and without the continent extensive reforms have been carried out resulting in in some instances second and third generation arbitral statutes in step with international law and best practice. See Prof. Amazu A. Asouzu, Internatational Commercial Arbitration and African States, Cambridge Studies in International and Comparative Law (CSICL).CAMBRIDGE 2001 c.f. pages 119-139.
 See Sections 15 and 16 (1) and (2) of the Arbitration Act 24 of 1904 in relation to the power of the Court to remit an award, remove an arbitrator and to set aside an arbitrators award respectively.
 The Law of Arbitration (South African and International Arbitration) JUTA, 2009 para 9.16.5 at page 201
 c.f. Mtetwa and Another v Mupamhadzi Supreme Court of Zimbabwe Harare Judgment No. SC 35/07 Civil Appeal No. 162/06, May 8 2007.
 See s21 (2)-(9) refer specifically to criminal courts and the proceedings thereof, whereas the rest of the subsections 10 refer generically to proceedings and processes before a court of law or public adjudicating authority. For example section 21 (11) makes it mandatory that proceedings before an adjudicating authority be held in public”
 In this regard reference is made to Section 35 of the Constitution as pertains to the mechanism for protection of the bill of rights under the constitution.
 See section 16 above.
 See para. 24 of Claimant’s Statement of Claim. Vol. 1 at p84.
 Para. 15.1 of Statement of Defence Vol. 1 at p 227 of bundle.
 p50 of the Review Bundle.
 D.4.8.18. see also M.Jacobs, The Law of Arbitration in South Africa, JUTA 1977., chap 9 paras 35-7 pp 32-8 and chap 9 para 33 pp 29-30.
 A judge of the Supreme Court of New South Wales; Adjunct Professor, Faculty of Law, University of Technology, Sydney AUSTRALIA.
 From the above facts, it is plain to me that the judgment in Hos+Med turned around the doctrine of unanimous consent as applied in company law, which had not been raised in the pleadings (see para 21-28). It was raised by the arbitrator mero motu in his award and it did not flow directly as part of the interpretation of the agreement in question. Furthermore, the parties did not have the opportunity to address the Tribunal thereon. In the present case, as appears from the arbitrator’s excerpt above, the parties had their own say on the issue - in the interpretation of the contract or agreement. The facts in Hos+med and are therefore distinguishable from the facts in the case under consideration.
 In dismissing the challenge in Three Cities (Supra) the Court had this to say:
‘ As indicated in the introduction to this judgment, great care must be exercised in respect of a case brought to the effect that an arbitrator has exceeded his or her powers in terms of Section 33 (1) (b) of the Arbitration Act. The reason therefor is due to the fundamental principle that only narrow grounds for review of an arbitrator’s award are recognised, in order to permit what would effectively be an appeal against the award which, in turn, would subvert the entire purpose thereof.
 As Wallis JA said in Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd 2013 (6) SA 520 (SCA) at paras 19 – 20:
‘Provided the parties receive a fair hearing there are no grounds for challenging the arbitration’s decision in that regard. The advantages of arbitration over litigation particularly in regard to the expeditious and inexpensive resolution of dispute are reflected in its growing popularity worldwide. Those advantages are diminished or destroyed entirely if arbitrators are confined in a straightjacket of legal formalism that the parties to the arbitration have sought to escape. Arbitrators should be free to adopt such procedures as they regard as appropriate for the resolution of the dispute before them unless the arbitral agreement precludes them from doing so. They may therefore receive evidence in such form and subject to such restrictions as they may think appropriate to ensure, as the arbitrator in this case was required to do so, ‘just, [expeditious], economical and final, determination of the dispute.
 With this deferential approach to arbitration awards in mind, it appears to me that the facts of Hos+med are distinguishable from the present case. In that case, an entirely different doctrine was invoked by the arbitration tribunal to that which had been the focus of the dispute between the parties and to that which had been argued before the arbitrator.’
 From the above analysis of the facts and applicable law, the suggestion by the applicant that the arbitrator created a new contract for the parties, is rejected. There is no merit whatsoever in this submission. Similarly, the suggestion that the award means that the management agreement lapsed and later on renewed itself is baseless and unwarranted. The truth of the matter is that the parties to the agreement decided when the agreement would commence; the duration thereof, and when it would be automatically renewed. This is expressly contained in the agreement and was not created or invented by the arbitrator. This, in my Judgment is too plain for argument.
 The pleadings and in particular the issue regarding the renewal inevitably brought into sharp focus the debate about the existence or otherwise of the contract between the parties and the duration thereof. The relevant period was May 2016, when the Applicant purported to terminate the management agreement. As to when the agreement was automatically renewed was again subject to the expiration of the initial agreement for 5 years. The automatic renewal, it was common cause, had to take effect of 1st January. The parties, during argument, were in disagreement regarding the year of renewal. This was the issue in dispute and which the arbitrator had to resolve. The arbitrator rejected the contention by the applicant that the automatic renewal came into effect on 1st January, 2012 because the initial agreement would have been shortened by a few months whilst the parties had expressly agreed on a full 5 year term. There is, in my Judgment, nothing inconsistent with the management contract in this construction or interpretation. Therefore, because the automatic renewal took effect on 1st January 2013, it was the intervening period between May 2012 and December 2012 that the Learned arbitrator ‘categorized’ or labelled as a tacit or implied agreement. This was the case because the parties continued working together in terms of the contract. To say he had no jurisdiction to make this pronouncement, is, in my view, incorrect. Such pronouncement flowed directly from a businesslike interpretation of the contract. After all this was a business or commercial contract.
 In the result, I, for my part, would dismiss the application with costs.
FOR THE APPLICANT: MR M. MAGAGULA
FOR THE FIRST RESPONDENT: ADV. P. KENNEDY, S C (with him MR C. BESTER)
Robinson Bertram and Co. (Instructing Attorneys)