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[2011] ZAGPJHC 141
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World Food Programme v Emile and Another (13927/2010) [2011] ZAGPJHC 141 (10 October 2011)
REPORTABLE
IN THE SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO. 13927/2010
DATE:10/10/2011
In the matter
between:
THE WORLD FOOD
PROGRAMME
........................................................
Applicant
and
MASSOUDI
EMILE
…......................................................................
First
Respondent
BARNABAS ASHWIN
SYLWANUS
............................................
Second
Respondent
JUDGMENT
MONAMA J:
INTRODUCTION:
[1] This is an
application in terms of Section 31(1) of the Arbitration Act 42 of
1965 (“The
Arbitration Act&rdquo
;) to have the final
Arbitration Award (“the award”) dated 18 January 2010
made. This application is opposed.
[2] The award was
granted
by
an arbitration tribunal consisting of three arbitrators, the
Honourable Mr Justice Johannes H Conradie SC (“Conradie”),
Mr John F Myburgh SC (“Myburgh”) and Professor Mervyn E
King SC (“King”).
[3] It is common
cause that the
Arbitration Act applies
to the present application.
THE PARTIES
[4] The applicant is
an autonomous joint subsidiary programme of the United Nations and
the Food and Agricultural Organisation of
the United Nations and has
the legal personality and capacity to contract, to acquire and
dispose of movable and immovable property
and to be party to judicial
proceedings.
[5] The applicant
enjoys the privileges and immunities as provided for in the
Diplomatic Immunities and Privileges Act 37 of 2001
, as amended, read
with the Convention on the Privileges and Immunities of the United
Nations, 1946 and the Convention on the Privileges
and Immunities of
Specialised Agencies, 1947. These conventions are schedules to Act 37
of 2001 and have the force of law in the
Republic of South Africa.
The applicant has waived its immunity for the sole purpose of having
the final arbitration order made
an order of court.
[6] The respondents
are former employees of the applicant. The first respondent resides
in Morningside, Johannesburg and the second
respondent in Highlands
North, Johannesburg. The respondents appear in person.
ARBITRABLE
DISPUTE
[7] During January
2003, the first and second respondents were appointed as the
applicant’s national financial officer and
finance assistant
respectively in terms of their service contract. They were all based
in the applicant’s offices in Johannesburg.
[8] The applicant
alleged in its amended statement of claim “statement”
that during the period of their employment,
the respondents, acting
in collusion, committed various acts of misappropriation of the
applicant’s funds over a period of
time.
[9] The applicant
alleged further in paragraph 7 of the statement that it was an
implied term of the service contracts that the
respondents would
respect the proprietary rights and interests of the applicant and/or
that they would not misappropriate the funds
of the applicant and/or
that they would not act dishonestly by misappropriating the funds of
the applicant.
[10] The applicant
alleges in paragraph 9 of the statement that the respondents breached
the terms of the service contracts in that,
during the currency of
the contracts, they misappropriated funds belonging to the applicant
instead of executing their obligations
arising from the service
contracts honestly and with respect for the applicant’s
proprietary rights and interests.
[11] In terms of the
statement, it is alleged that during the period May 2003 to June
2004, the first and second respondents, acting
together, the one
acting in collusion with the other, unlawfully misappropriated sums
of money belonging to the applicant. The
amount is itemized as R 8
827 891.65 and USD 5 015 979.71 as more fully described in the
statement.
THE LEGAL FRAME
WORK
[12] The applicant’s
claim against the respondents was for damages suffered as a result of
various breaches of the respondents’
respective service
contracts. The respondents’ contracts were performed in South
Africa and the breaches of the service
contracts were committed in
South Africa. Their respective contracts of services contain an
identical clause which provides that:
“
[a]ny
claim or dispute relating to the interpretation or execution of the
present contract which cannot be settled amicably will
be settled by
binding arbitration. Uncitral Arbitration Rules will apply. Binding
arbitration must in all cases be preceded by
a conciliatory procedure
under Uncitral rules.”
[Clause
15 of the service contract]
[13] During 1966 the
United Nation General Assembly established the United Nations
Commission on International Trade Law “Uncitral”.
Uncitral has the object of promoting the progressive harmonisation
and unification of the law on international trade. On 15 December
1976, the General Assembly of the Uncitral adopted Arbitration Rules.
On 4 December 1980, the General Assembly of the Uncitral
adopted
Conciliation Rules. The covenants are applicable in this matter
[14] By virtue of
the service agreements, the Uncitral Arbitration Rules and the
Uncitral Conciliation Rules provides the framework
for the resolution
of disputes between the applicant and the respondents arising from
the “
interpretation
or execution
”
of the service contracts. In terms of the service contracts
conciliation must precede arbitration.
[15] In terms of the
Conciliation Rules any party conciliation initiating is required to
send a written invitation to the other
party inviting it to
conciliation. Conciliation shall commence when the other party
accepts the invitation to conciliate.
[16] If there is no
conciliation, the parties shall proceed to arbitration under the
Arbitration Rules which provides,
inter
alia,
the
procedure, the number of arbitrators, the time frames for the
proceedings. These Rules have also the deeming provisions.
[17] Should the
parties not agree on the choice of the arbitrator, the appointing
authority shall appoint the sole arbitrator. Should
the parties again
fail to agree on the appointment of the appointing authority then,
the Secretary-General of the Permanent Court
of Arbitration, The
Hague, Netherlands (“PCA”), shall designate the
appointing authority. The PCA was established by
the convention for
the Pacific Settlement of International Dispute. Its purpose is to
provide services for the resolution of disputes
between various
states, states entities, intergovernmental organizations and private
parties. The parties herein fall within the
scope of the said
convention.
THE STEPS TAKEN
BY THE APPLICANT TO CONCILIATE AND ARBITRATE
[18] On 2 June 2008
the applicant invited the respondents to conciliate the question of
whether the respondents, while in the employment
of the applicant,
and acting in collusion, misappropriated funds from the applicant.
This was done through the respondents attorneys
of record.
[19] The respondents
rejected the invitation on 13 June 2008. As a result, on 4 August
2010 the applicant delivered a notice to
arbitrate at the offices of
the respondents attorneys. The applicant’s statement of claim
was attached to the notice to
arbitrate.
[20] On 10 September
2008 the applicant invited Myburgh to accept an appointment as the
first arbitrator and Myburgh accepted the
invitation on the same day.
[21] In the
meantime on 1 October 2008 the respondents were notified of the
appointment of Myburgh as the first arbitrator and the
respondents
were afforded 30 days from the date of receipt of the notice within
which to appoint the second arbitrator.
[22] On 3 November
2008 the Secretary-General of the PCA was requested to appoint an
appointing authority, the respondents having
failed to appoint a
second arbitrator within 30 days after having been notified to do so.
On 17 November 2008 the Secretary-General
of the PCA appointed
Professor Ahmed El-Kosheri (“El-Kosheri”) as the
appointing authority.
[23] On 21 November
2008, the applicant’s attorney requested El-Kosheri to appoint
the second arbitrator. On 24 November 2009
the respondents
acknowledged the appointment of the appointing authority. On 6
December 2008 the appointing authority appointed
King as the second
arbitrator and on 9 December 2009 the respondents accepted the
appointment of King as the second arbitrator.
[24] On 9 December
2008 Myburgh and King in their capacity as the arbitrators invited
Conradie to act as presiding arbitrator which
invitation he accepted.
On 6 January 2009 the first respondent delivered an application for
the stay of the arbitration proceedings.
[25] On 20 January
2009 the respondents’ attorneys of record, Boloka Mphele
Attorneys “BMA” notified the applicant’s
attorney
that they were no longer representing the respondents.
[26] On 6 February
2009 the applicant’s attorneys served a notice on the
respondents personally calling upon them to attend
a pre-arbitration
meeting on 26 February 2009. The time and place of the meeting were
clearly identified in the said notice.
[27] On 9 February
2009, the first respondent, purporting to act on behalf of both
respondents, addressed an email to Conradie,
El-Kosheri, Myburgh,
King and the applicant’s attorney challenging the validity of
the notice served on 6 February 2009 and
challenging the arbitration
tribunal’s impartiality. The respondents failed to attend the
pre-arbitration meeting on 26 February
2009, which proceeded in the
respondents’ absence.
[28] On 3 March 2009
the applicant’s attorneys served directives, issued by the
arbitration tribunal, on the respondents,
regulating the future
conduct of the arbitration proceedings.
[29] On 4 March 2009
the respondents addressed a complaint to El-Kosheri about the
arbitration tribunal’s alleged lack of
impartiality and
requested that the arbitration tribunal recuse themselves. On 24
March 2009 El-Kosheri dismissed the challenge
to the arbitrators.
[30] On 20 April
2009 the arbitration tribunal issued amended directives affording the
respondents time to supplement their application
for a stay of the
arbitration proceedings.
[31] On 28 April
2009 the respondents filed supplementary argument in support of their
application to stay the proceedings. On 13
May 2009 the applicant
filed submissions in response to the respondents’ application
to stay the proceedings.
[32] On 25 May 2009
the arbitration tribunal dismissed the respondents’ application
to stay the arbitration proceedings (“the
interlocutory
award”’). On the same day the applicant served the
interlocutory award and an amended statement of claim
on the
respondents.
[33] The applicant
served a notice of bar on the respondents on 24 June 2009 because the
respondents were in default. They were
obliged to file same on 23
June 2009. The respondent did not respond to the notice of bar and on
1 July 2009 the respondents became
ipso
facto
barred from filing statements of defence.
[34] On 3 July 2009
the applicant served an application for default judgment on the
respondents. On 12 August 2009 the arbitration
tribunal issued
directives for the receipt of affidavit evidence in support of the
application for default judgment.
[35] On 13 November
2009 the applicant delivered affidavit evidence and heads of argument
to the arbitration tribunal and the respondents
in support of the
application for default judgment. This constitutes the date of
entering
of reference
as more fully explained hereinafter.
[36] On 17 November
2009 the respondents acknowledged receipt of the application for
default judgment and the affidavit evidence
but requested the
arbitration tribunal not to proceed with the application until the
question of the applicant’s immunity
had been resolved.
[37] On 4 December
2009 the arbitration tribunal issued further directives notifying the
applicant that no further oral evidence
or oral argument would be
required in support of the application for default judgment.
[38] On 8 December
2009 a supplementary affidavit was served on the arbitrators dealing
with the question of interest on the sums
claimed by the applicant.
On 19 January 2009 the arbitration tribunal published the
arbitration award at the chambers of Myburgh
in Sandton.
LEGAL PRINCIPLES
GOVERNING ENFORCEMENT
[39] As the
applicant seeks to enforce the award it bears the onus of showing the
following requirements, namely that:
the valid
arbitration agreement between the parties, and in terms of which the
arbitration was conducted.
the arbitration
tribunal was validly and correctly appointed;
the dispute falls
within the jurisdiction of the arbitration tribunal;
the arbitration
award is final; and
the arbitration
award is valid.
[40] The
Arbitration
Act prescribes
the following statutory requirements for the validity
of an arbitration award:
the arbitration
award must be in writing and signed by all the members of the
arbitration tribunal;
the arbitration
award must be made, unless the arbitration agreement provides
otherwise, within the period of four months after
the date on which
the arbitration tribunal entered on the reference or the date on
which such arbitrators were called upon to
act by notice in writing
from any party to the reference, whichever date is the earlier
unless the time period of four months
has been extended;
the award must be
delivered by the arbitration tribunal, the parties or their
representatives being present or having been summoned
to appear.
[41] The
unsuccessful party may resist an application for the enforcement of
an arbitration award on the grounds that the award
is invalid or void
ab
initio
.
In the circumstances, and if the court is satisfied that the
arbitration award is invalid, the court should refuse to enforce
the
arbitration award. By agreeing to arbitration, parties to a dispute
agree that the fairness of the hearing will be determined
by the
provisions of the Arbitration.
[42] Unless they
agreed otherwise by appointing an appeal tribunal, parties to
arbitration waive the right to appeal which means
the right to have
the merits of their dispute re-litigated or reconsidered. By agreeing
to arbitration parties limit the interference
by the courts to the
grounds of procedural irregularities set out in
section 33
of the
Arbitration Act. If
the arbitration award is voidable for being
procedurally irregular in terms of
section 33
of the
Arbitration Act,
it
is valid and enforceable until it is set aside or remitted to the
arbitrator.
[43]
Section 33
of
the
Arbitration Act determines
that where the party against whom the
arbitration award has been granted contends that any member of an
arbitration tribunal has
misconducted himself in relation to his
duties as arbitrator; or an arbitration tribunal has committed a
gross irregularity in
the conduct of the arbitration proceedings or
has exceeded its powers; and the arbitration award was improperly
obtained, the unsuccessful
party is required to bring an application
to court within six weeks after the publication of the award to the
parties to have the
award set aside. In the absence of such
application, as it was the case in casu, the applicant can approach
the court for enforcement.
[44] The
unsuccessful party which contends for one or more of the grounds
listed in
section 33
of the
Arbitration Act, cannot
simply oppose the
application for enforcement of the award but will have to take active
steps to have the award set aside. However,
if the application for
the enforcement of the award is brought within the period of six
weeks after the publication of the award,
then the unsuccessful party
may bring a counter-application to have the order set aside. When
parties select an arbitrator as the
judge of fact and law, the award
is nil and conclusive. An error in an award does not amount to
misconduct unless the mistake was
so gross and manifest that it could
not have been made without a degree of misconduct or partiality, in
which event the award will
be set aside not because of the mistake
but because of the misconduct.
[45] “Gross
irregularity in the conduct of the arbitration proceedings”, as
a separate ground of review contemplated
in
Section 33(1)(b)
of the
Arbitration Act, relates
to the conduct of the proceedings and not
the result. Every irregularity in the proceedings will not constitute
a ground for review,
the irregularity must have been of such a
serious nature that it resulted in the aggrieved party not having his
case fully and
fairly determined.
RESPONDENTS’
GROUNDS OF OPPOSITION
[46] The respondents
allege that the award is invalid. They oppose the application for the
enforcement of the award on the following
grounds:
the dispute between
the parties are not regulated by the service agreements.
the dispute is not
within the scope of the service contracts but within the scope of
the “Food Procurement Contracts”;
the constitution of
the arbitration tribunal was not in accordance with the agreements.
the respondents
never received any communications from the arbitration tribunal
notifying them of the commencement of the arbitration
proceedings;
the respondents’
correspondence to the arbitration tribunal remained unanswered;
the arbitration
failed to stay the proceedings despite sufficient cause having been
presented to them to stay the proceedings.
the award should
have been made within four months after the date on which the
arbitrators were designated to act as no agreement
was reached
between the parties or the “Arbitration Court” to extend
the time for making the award;
the respondents
doubt whether the arbitration award was signed by the arbitrators;
the award was not
delivered in the presence of the respondents or their
representatives nor was the respondents summoned by the
arbitration
tribunal to appear for the publication of the award.
THE ARBITRATION
AGREEMENT
[47] The parties are
in agreement that the service agreement is valid and contains an
arbitration clause. The applicant and the
first and second
respondents, respectively, entered into two service agreements
regulating the employment relationship of the respondents.
Clause 15
of each of the service agreements contains the arbitration clause and
determines that any dispute between the parties
should be referred to
conciliation under the Uncitral Conciliation Rules; and arbitration
under the Uncitral Arbitration Rules.
The application was within his
right to invoke the said procedure.
[48] The applicant’s
claims against the respondents arise from a breach of the service
agreements. The existence and validity
of the arbitration clause are
admitted. However, the respondents claim food procurement contract
applies. The applicant is
dominus
litis
.
Employees are expected to act honestly and not steal. Any breach of
honesty is a sufficient ground to utilize the terms and condition
of
the service agreement. In the circumstances, the applicant was
entitled to institute arbitration proceedings in terms of the
service
agreements as the disputes between the parties, as formulated by the
applicant, fell within the ambit of the service contracts.
The
dispute as formulated related to dishonesty misappropriation and
theft committed by the respondents in their capacity as employees
of
the applicant. For this reason their defence lacks merits and is
dismissed.
[49] The essence of
the respondents’ objections are that the disputes between the
parties relating to the alleged misappropriation
of funds, are
governed by “Food Procurements Contracts” concluded
between the applicant and the first respondent’s
company,
Sizani (Pty) Ltd, and not the service contracts on the Food
Procurement Contracts, although providing for arbitration,
is not
governed by the Uncitral Arbitration Rules. As stated above the
applicany is
dominus
litis
and had options to formulate his claim. In any event I do not express
any view as regards the applicability of the said contract
to the
dispute as formulated.
[50] The applicant
disputes the validity of the alleged “Food Procurement
Contracts”. The applicant persists that the
entire service
contract applies to the issue as formulated
[51] The respondents
allege that they raised the arbitration tribunal’s lack of
jurisdiction on several occasions but the
communications remained
unanswered. Several notices were delivered to them personally to
which they did not respond. The respondents
chose not to respond. The
applicant was entitled to proceed as he did.
[52] In terms of
article 21(1) of the Uncitral Arbitration Rules the arbitration
tribunal may hear any objection that it has no
jurisdiction,
including any objections to the existence or the validity of the
arbitration clause or of a separate arbitration
agreement. A plea
that the arbitration tribunal does not have any jurisdiction should
have been raised in the statement of defence.
The respondents failed
to raise, at the appropriate time, and in the arbitration
proceedings, the objection to the arbitration
tribunal’s
jurisdiction. The respondents were advised that the respondents could
raise the defence of lack of jurisdiction
at the appropriate time in
the proceedings. The respondents continued to participate in the
arbitration proceedings by acknowledging
the appointment of the
appointing authority; by the appointment of King as the second
arbitrator; by delivering an application
to stay the arbitration
proceedings; by challenging the arbitrators on the grounds of their
alleged lack of impartiality; and by
filing further submissions in
support of the application to stay the arbitration proceedings. The
respondents failed to file a
statement of defence. They did not
formally raise the arbitration tribunal’s lack of jurisdiction
at the appropriate time
in the arbitration proceedings. Accordingly I
find that this ground is without substance and legally untenable.
THE APPOINTMENT
OF THE ARBITRATORS
[53] The respondents
allege that the appointments of the arbitrators were irregular. I
disagree. The applicant has religiously observed
the rules in the
appointment of the arbitrators without fail. The respondents again
chose not to do so. Their attitude led to the
appointment of the
appointing officer. The challenge of these appointments is without
merit and is hereby rejected.
ARBITRATION
AWARD - FINAL
[54] The Uncitral
Arbitration Rules make no provision for an appeal against the award.
The arbitration award is therefore final
and binding subject to the
arbitration tribunal’s right, on the written request of the
parties, to correct errors in computation,
any clerical errors or
typographical errors or any errors of a similar nature and to the
arbitration tribunal’s right, on
the written request of the
parties, to make an additional award as to claims presented in the
arbitration but omitted from the
award.
Section 28
of the
Arbitration
Act provides
for an arbitration award to be final and not subject to
an appeal and requires each party to the arbitration to abide by and
comply
with the award. The respondents has a right to, within six
weeks after the publication of the award, remit the arbitration award
to the arbitration tribunal for reconsideration. The respondents have
failed remit the award to the arbitration tribunal for
reconsideration
and the respondents have not applied to have the
award set aside. In the circumstances, the award is final.
THE WRITTEN AWARD
SIGNED BY THE ARBITRATION TRIBUNAL
[55] In terms of
Section 24(1)
of the
Arbitration Act the
award must be in writing and
signed by both parties. This was done on 18 January 2010. The final
award, in my view, is properly
signed in terms of this section. This
ground of opposition is otherwise groundless and is hereby rejected.
ARBITRATION AWARD
MADE WITHIN FOUR MONTHS
[56] Finally the
respondents raised the time limit as regards
Section 23
of the
Arbitration Act. In
terms of section 23 of the
Arbitration Act the
arbitration award must be made, unless the arbitration agreement
provides otherwise, within the period of four months after the
date
on which the arbitration tribunal
entered
on the reference
or the date on which such arbitrators were called upon to act by
notice in writing from any party to the reference, whichever date
is
the earlier, unless the time period of four months has been extended
by the parties or the court, on good cause shown, whether
before or
after the expiry of the time period.
[57] The Uncitral
Arbitration Rules confer the arbitration tribunal with the right to
regulate the arbitration proceedings and to
determine the time
periods for the conduct of the arbitration proceedings. Where such
Rules are silent as regards the time then
the
Arbitration Act must
be
resorted to.
[58] The arbitration
process commenced on 2 June 2008 when the invitation was extended to
the respondents for conciliation. In my
view the date of 2 June 2008
cannot constitutes date:
“On
which arbitrators entered on reference.”
[59] From 2 June
2008 until the request for a default judgment the parties were
engaged in pre-arbitration process in order to get
the matter ready
for adjudication. The applicant in their long heads of argument and
in their submissions applied for the extension
of the time limits in
this regard. The application was in the alternative in the event that
the court finds that 2 June 2008 is
the applicable date. They
submitted that in their view the Uncitral Rules dictated the
procedure and they applied the said procedure.
[61] Section 23
provides for the time frames for making award by the arbitral
tribunal. The relevant part of s 23 of the Act reds
as follows
:
’
23 Time
for making award
The arbitration
tribunal, unless the arbitration agreement otherwise provides, makes
its award-
(a) in the case
of an award by an arbitrator or arbitrators, within four months after
the date on which such arbitrator or arbitrators
entered on the
reference or the date on which such arbitrator was or such
arbitrators were called on to act by notice in writing
from any party
to the reference, whichever date be the earlier date; and
(b) …..,
Or in either case
on or before any later date to which the parties by any writing
signed by them may from time extend the time for
making the award:
provided that the Court may, on good cause shown, from time to time
extend the time for making any award, whether
the time has expired or
not.’”
Section 32(b) deals
with an award made by an umpire as opposed to an award by arbitrator
and do not apply in the circumstances
of the present case. The
application for extension can even be made at anytime regardless
whether the time has expired or not.
Regard been had to the purpose
of
section 23
of the
Arbitration Act, namely
to conclude the process
expeditiously with the greater laxity for extension of time limits, a
greater flexibility in such a case
is called for.
[62] The phrase
‘enter on reference’ is not defined in the
Arbitration
Act. In
my view, the date on entering reference can only mean the
date when the matter is ripe to be allocated a date of hearing. In
the
matter of
Van
Zijl v Von Haebler
1993 (3) SA 654
SECLD the phrase was held to denote:
“
-the date
on which he [arbitrator] commences hearing evidence or entertains
submissions from the parties as to the conduct of the
matter”
(see
page 664 E-F)
Similarly, in
Bhoola
v Bhoola
1945 NPD 109
at 113 it was held that:
“-Entering
on reference means something more that giving notices-“
This interpretation
makes sense and is logically sound. In this case the ‘pleadings’
only became closed when application
for default judgment affidavit
was filed. I used the ‘pleadings’ by way of analogy. In a
trial the matter comes before
the court for adjudication on merits
once all the pretrial issues have been resolved. This was on 13
November 2009. Any other step
before then was still a preparatory
step. The matter was still as yet not ripe for the arbitrators to
evaluate the merits of the
application.
[63] The respondents
did not argue that the award has lapsed. Accordingly I hold the view
that the award was made timeously. There
was no need to apply for
extension of the time limits. The applicant’s application for
extension of time limits was done
ex
abudanti cautela
as any diligent litigant will do.
PUBLICATION OF
THE AWARD
[64] On 18 January
2010, Myburgh invited a representative of the applicant to attend at
his offices for purposes of collecting a
copy of the award. On or
about 19 January 2010, and at the chambers of Myburgh at Group 1,
Sandown Village, Sandton, the final
award was published by delivery
of the award to the applicant’s representative. This satisfies
the requirements of
section 25
of the
Arbitration Act.
[65
] On 19 January
2010 the applicant delivered a copy of the award to each of the
respondents at their residential addresses. The
said delivery was at
the instructions of the tribunal. On 22 January 2010 the first
respondent acknowledge receipt of the award.
Any delivery of notices
and other related directive to the respondents were done to assist
the tribunal and facilitate the process.
To hold such steps as
irregular is ludicrous.
THE APPLICANT’S
CASE
[66] In summary, the
applicant has satisfied the requirements. The service contracts in
terms of which the arbitration was conducted,
are valid; the
arbitration tribunal was validly and correctly appointed; the dispute
fell within the ambit of the service agreements;
the arbitration
award is final; the arbitration award is valid; the arbitration award
is in writing and signed by all the members
of the arbitration
tribunal; the arbitration award was made within the time limits
prescribed by the Uncitral Arbitration Rules
read with the time
periods imposed by the arbitration tribunal and the award was
properly published.
THE RESPONDENTS
FURTHER OBJECTIONS
[67] The respondents
filed the following notices after having filed their answering
affidavit. On 27 October 2010 - “Request
for witness to appear
personally in court in terms of section 6(5)(g) and production of
documents”; on 29 October 2010 –
“Notice in terms
of Rule 30A(1)”; on 1 November 2010 – “Second
notice in terms of Rule 35(3)”; on
11 November 2010 –
“Notice in terms of Rule 33(4)”. The above notices are
misconceived and irregular steps in
terms of Rule 30 of the Rules of
Courts. The respondents have misconceived their right to request the
delivery of documents. Such
documents could only have been requested
if these documents are referred to in the applicant’s
affidavits or if the respondents.
The filing of these notices
demonstrate the delaying tactics and stratagem employed by the
respondents throughout these proceedings.
CONCLUSION
I find that the
applicant has made out a proper case for the relief it seeks
ORDER
From the reasons
stated above I make the following order:
1. The arbitration
award, a copy of which is marked “X” and attached to the
applicant’s notice of motion is made
an order of court; and
2. Costs of suit;
which costs shall include the costs consequent upon the employment of
two counsel.
______________________________
RE MONAMA
JUDGE OF THE HIGH
COURT
Date of Judgment: 10
October 2011
Counsel for the
Plaintiff
…............................................
Counsel
for the Defendant
Adv. M. Hellens
SC
.....................................................
Unrepresented
Adv. TD Prinsloo
Instructed by:
Deneys Reitz
Attorneys