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[2016] ZAWCHC 163
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Alexandre v Milnerton Informal Trader's Association and Others (19960/2008) [2016] ZAWCHC 163 (15 November 2016)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
No: 19960/2008
Before: The Hon. Mr Justice Binns-Ward
Hearing: 10 November 2016
Judgment: 15 November 2016
In
the matter between:
CESAR
ALEXANDRE
Applicant
and
MILNERTON
INFORMAL TRADERS’
ASSOCIATION
First
Respondent
ADV
EBEN GROBBELAAR
N.O.
Second
Respondent
THE
SHERIFF, CAPE TOWN
EAST
Third
Respondent
JUDGMENT
BINNS-WARD J:
[1]
The applicant has applied for an order
staying execution of an award in respect of costs made against him in
arbitration proceedings.
The stay is sought pending the
determination of an intended appeal. The award was made on 11
May 2015 and the appeal against
it was noted only on 11 March
2016, notwithstanding a provision in the arbitration agreement that
any party desiring to appeal
was required to do so by delivering
notice thereof to the other party ‘not later than 10 days after
the delivery of the Arbitrator’s
award’. The
agreement also provided that a party wishing to proceed on appeal
from the award at first instance had
to put up security in the sum of
R250 000 within 10 days of noting the appeal. The
applicant furnished the required
security only on 30 September
2016, more than six months after having purported to note the appeal.
[2]
It is evident that the applicant is
intending to prosecute an arbitration appeal that has been noted well
outside the period afforded
in terms of the governing agreement and
that having noted it he failed to timeously fulfil the condition to
which its prosecution
was made subject. The applicant’s
counsel has argued, however, that the agreement allows for any
appellate tribunal
that might be constituted to condone the late
noting of the appeal and the tardy provision of security. He
was at pains to
emphasise that the jurisdiction to determine whether
condonation should be granted or not vested in the appellate
tribunal, not
in the court. He also submitted that the general
principle that the noting of an appeal suspends the exigibility of
the judgment
was applicable in respect of an arbitration award.
[3]
I am willing for present purposes to assume
(without so deciding) that all of those submissions were
well-founded. The factor
that they failed to take into account,
however, was that the award was made an order of court on 11 August
2015 in terms of
s 31
of the
Arbitration Act 42 of 1965
.
The order was obtained pursuant to an application that was served on
the applicant’s attorney of record in the arbitration
on
11 June 2015, after the expiry of the period provided in terms
of the arbitration agreement for the noting of an appeal.
I
refrain from commenting on whether service on the applicant’s
attorneys of record in the arbitration was competent
for the purpose
of the subsequent curial proceedings. The court that made the
order had the requisite jurisdiction and the
judge was evidently
satisfied with the effectiveness of the notice that had been given.
The effect of the order made on 11
August 2015 was that the award
thereupon became enforceable ‘in the same manner as any
judgment or order to the same effect’;
see
s 31(3)
of the
Act.
[4]
Once the award was made an order of court
it was no longer amenable to any appellant jurisdiction created in
terms of the arbitration
agreement; at least for so long as the order
remains in place. The effect of having an award made an order
of court translates
the outcome of the arbitration proceedings from
the private environment of contract to the public sphere, whereupon
it qualifies
for enforcement using the resources of the state
pursuant to s 165(5) of the Constitution.
[1]
The applicant’s notice of appeal in terms of the arbitration
agreement did not have the effect of suspending the court
order; only
a notice of appeal against the court order could have had that
consequence.
[5]
The applicant has therefore misconceived
his remedy. He should have applied for the setting aside of the
order of court.
If he were to obtain such relief the question
of execution would fall away; if on the other hand it were to be
refused, no basis
would exist for suspending execution. It
would be appropriate to consider exercising this court’s
discretion in terms
of rule 45A
[2]
only in the context of evidence that the first respondent was
proceeding to enforce the court order in the face of a pending
application
by the applicant to set it aside. There is no such
application, and, having regard to the applicant’s history of
inordinate
procedural dilatoriness, no assurance that one might be
brought with expedition. While the court order stands
unimpugned,
there is no basis to stay its execution.
[3]
[6]
For those reasons the application is
dismissed with costs.
A.G. BINNS-WARD
Judge of the High Court
[1]
Section 165(5) of the Constitution
provides: ‘
An
order or decision issued by a court binds all persons to whom and
organs of state to which it applies
’.
[2]
Rule 45A provides: ‘
The
court may suspend the execution of any order for such period as it
may deem fit
’.
[3]
Cf.
Firm
Mortgage Solutions (Pty) Ltd v Absa Bank Ltd
2014 (1) SA 168
(WCC).