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[2014] ZASCA 97
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Naidoo and Another v EP Property Projects (Pty) Ltd and Others (444/2012) [2014] ZASCA 97 (31 July 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 444/2012
Not
Reportable
In
the matter between
PERAPANJAKAM
NAIDOO
.............................................................................
FIRST APPELLANT
REGINALD
TOBIAS
MARAIS
....................................................................
SECOND APPELLANT
and
EP
PROPERTY PROJECTS (PTY)
LTD
........................................................
FIRST
RESPONDENT
ANDRIES
FRANCOIS
MARAIS
...............................................................
SECOND RESPONDENT
REGISTRAR
OF DEEDS, CAPE
TOWN
.....................................................
THIRD
RESPONDENT
P
B HODES,
SC
............................................................................................
FOURTH
RESPONDENT
Neutral
citation:
Naidoo v EP Property
Projects (Pty) Ltd
(444/2012)
[2014]
ZASCA 97
(31 July 2014)
Coram:
Mpati P, Lewis, Ponnan, Bosielo and
Willis JJA
Heard:
March 2014
Delivered:
31 July 2014
Summary
:
Arbitration –
Arbitration Act 42 of 1965
– arbitration
agreement made an order of court by mutual consent – court
order not set aside – the legal effect
thereof – whether
arbitrator had jurisdiction to conduct the arbitration – review
of the arbitrator’s award
(s 33)
– whether arbitrator’s
conduct constitutes reviewable misconduct which justifies the setting
aside of the award –
whether the court erred in awarding costs
against the funder.
ORDER
On
appeal from:
The Western Cape High
Court (Louw J sitting as a court of first instance):
The
appeal is dismissed with costs, such costs to include the costs
consequent upon the employment of two counsel where so employed.
JUDGMENT
Bosielo
JA (Mpati P, Lewis, Ponnan and Willis JJA concurring):
[1]
At the centre of this case is a dispute over the ownership of an
undeveloped coastal property described as Portion 14 of the
farm Sea
View 28 in the Nelson Mandela Bay Metropolitan Municipality (the
property). The second appellant, Reginald Tobias Marais
(Tobias), and
EP Property Projects Ltd (EP), duly represented by Gary Stevenson
(Gary), one of its two directors, have staked rival
claims to this
property.
[2]
During 1980, EP represented by Gerald John Blignault (Blignault),
acquired ownership of the property. Blignaut was EP’s
sole
shareholder until he sold all of his shares in EP to Alex Campbell
Stevenson (Alex) for R400 000 during November 1990.
These shares
were subsequently transferred into the Alexander Campbell Stevenson
Family Trust (the Trust). Pursuant to the purchase,
all of EP’s
erstwhile directors resigned. Alex and Gary were registered with the
Registrar of Companies as EP’s new
directors. As a result, the
Stevensons exercised control over EP, its assets and affairs until
about 2005 (being some 15 years).
[3]
In 2005, Blignaut, purporting to represent EP, attempted to convene a
meeting of the members of EP in terms of s 220(2)
of the
Companies Act 61 of 1973 (the Companies Act) for 27 May 2005 to
remove both Alex and Gary as directors of EP. In order to
pre-empt
this, EP, the Trust and both Alex and Gary acting as EP’s
directors, approached the Eastern Cape High Court for
an order
interdicting and restraining Blignaut from purporting to act on
behalf of EP.
[4]
On 26 May 2005, the parties reached an agreement which resulted in
the meeting scheduled for 27 May 2005 not taking place. Blignaut
undertook to desist from holding himself out as a member of or being
entitled to represent EP in any manner. In an attempt to resolve
this
dispute between them finally, Blignaut agreed to institute
proceedings for an order declaring him to be the sole member of
EP by
6 July 2005. Importantly, the parties agreed that, should Blignaut
fail to institute the envisaged proceedings as agreed,
he would
forthwith be barred from continuing to act as if he were still EP’s
sole member. This agreement was made an order
of court.
[5]
Pursuant to this order, Blignaut instituted proceedings in the South
Gauteng High Court, then the Witwatersrand Local Division,
which were
subsequently set aside as irregular. As Blignaut never pursued these
proceedings any further, he was, in terms of the
court order of 26
May 2005, effectively barred from holding himself out as the sole
member of EP. Ordinarily, this should have
been the end of the
matter.
[6]
However, the matter did not rest there. Some five months later, in
February 2006, Blignaut, in breach of the court order, once
again
purporting to act on behalf of EP, tried to transfer the property to
Tobias. EP represented by the Stevensons then brought
an application
against Tobias and Blignaut challenging the validity of the purported
transfer of the property to Tobias and interdicting
him from dealing
with the property, pending an action to confirm its title to the
property. The application was heard by Bozalek
J who made an order by
consent between Tobias and EP postponing it to 6 October 2006, and
interdicting Tobias from in any way dealing
with, selling, disposing,
transferring or encumbering the property pending the outcome of the
proceedings.
[7]
On 26 October 2006 the matter was heard by Moosa J. The parties
agreed to submit their dispute to arbitration before Hodes SC,
and,
pending the arbitration, that Tobias be interdicted from in any way
dealing with, selling, disposing of, transferring or encumbering
the
immovable property. This agreement for the referral of the dispute to
arbitration was made an order of court with the consent
of both
parties.
[8]
Pursuant to the court order, both parties attended a pre-arbitration
meeting before the arbitrator (who was cited as the fourth
respondent, but who has not participated in the litigation), on 5
February 2007, where they agreed, amongst other things, on the
filing
of a statement of claim and defence and ‘a formal submission to
arbitration’. It is noteworthy that none of
the parties raised
any objection to the arbitrator’s jurisdiction or challenged
the validity of the referral agreement or
of the court order during
the pre-arbitration hearings.
[9]
The arbitration started in August 2007. The main issue was the
determination of the identity of the lawful owner of the property.
As
already indicated EP alleged that the coastal property was its
property, having acquired it by Deed of Transfer number T2725/1980
(the 1980 Deed). Tobias’ rival claim under Deed of Transfer
number T2565/2006 dated 16 January 2006 was based on a deed of
sale
allegedly concluded between himself and Blignaut.
[10]
Although Tobias never attended the arbitration proceedings, his
father, Andries Francois Marais (Dries), did. Each party was
represented by a team of legal representatives. It is common cause
that none of the parties raised any objection to the jurisdiction
of
the arbitrator or attacked the validity of either the agreement to
refer the matter to arbitration or the court order. On 9
December
2008, Tobias’ legal representative applied unsuccessfully for a
postponement of the proceedings. After the arbitrator
declined to
postpone the proceedings, Tobias’ legal team withdrew from the
matter. The arbitrator proceeded with the arbitration
to finality in
the absence of Tobias and his legal team.
[11]
In terms of his award of 18 December 2008,
the
arbitrator held that the written agreement of sale upon which Tobias
relied to obtain transfer of the property as evidenced
by the 2006
Deed of Transfer was a fraudulent document. Accordingly, he found
that EP had never intended to transfer ownership
of the property to
anybody, including Tobias. His conclusion was that, absent a valid
agreement to transfer the property, EP remained
the real owner of the
property and not Tobias.
[12]
The arbitrator despatched the award by email to the parties through
their attorneys, Mr Burger for Tobias and Mr Cohen for
the first
appellant Ms Naidoo (Naidoo), who subsequently came to be involved as
Tobias’ funder in this litigation, and to
whose role I shall
revert. There was some dispute as to whether it had been agreed that
the arbitrator would send the award to
Tobias’ legal
representative who would receive it on behalf of Tobias. It is
noteworthy that although both Tobias and Burger,
his attorney, filed
affidavits, they failed to deal with this issue.
[13]
Pursuant to the award, EP applied to the Western Cape High Court to
have the arbitral award made an order of court. As a precautionary
measure, EP obtained an urgent interim interdict on 9 February 2009
in the form of a rule nisi before Maqubela AJ preventing the
Registrar of Deeds from effecting transfer of the property pending an
application by it to have the award made an order of court.
On 25
February 2010 Tobias and his father, Dries, once again purporting to
act on behalf of EP, approached the Western Cape High
Court to set
aside that interdict. They contended that as directors and
shareholders of EP they could lift all interdicts preventing
them
from dealing with the property. Not having served the application on
EP, they succeeded before Riley AJ in having the interim
interdict
set aside on 1 March 2010. On fortuitously learning of the fraudulent
uplifting of the interim interdict, on 3 March
2010 EP launched yet a
further urgent application and was granted another interim order
interdicting Tobias and the Registrar of
Deeds from in any way
dealing with the property pending the final outcome of the rescission
application.
[14]
EP’s application to make the arbitration award an order of
court, Tobias’ counter application to review and set
aside the
arbitration award, EP’s application for Naidoo to be declared
liable for a portion of EP’s costs and EP’s
rescission
application, all came to be consolidated and argued before Louw J in
the Western Cape High Court. It is the high court’s
decisions
in respect of those applications that to a greater or lesser extent
are the subject of this appeal.
[15]
For his opposition to the award being made an order of court, Tobias
relied, amongst other things, on the fact that the arbitrator
lacked
jurisdiction to enter into the reference and adjudicate the dispute
referred to him; that the award was not properly published
as
envisaged by s 25(1) of the Arbitration Act 42 of 1965 (the
Arbitration Act); that
the arbitration proceedings and award were
tainted by irregularities; and further that the arbitrator was guilty
of gross misconduct.
[16]
In respect of the review, the grounds relied on were, amongst other
things, that the arbitrator lacked jurisdiction; alternatively
that
the agreement for referral to arbitration and the court order based
on it were vitiated by a mistake of law common to the
parties; that
the arbitrator failed to consider all the issues which were raised
and that therefore the award was not final; that
the arbitrator
permitted the evidence of Alex to be taken by video conferencing
without resolving the issue of whether he was a
fugitive from
justice; that the arbitrator unlawfully refused Tobias a postponement
on 9 December 2008 and continued with the proceedings
in his absence;
that the arbitrator conducted the arbitration in a manner which
provoked an apprehension of bias; that the
arbitrator was guilty of
misconduct by entertaining a private communication from a third
party; and further, that the arbitrator
exceeded his powers by
ordering costs on an attorney and client scale as this was not
provided for in the referral. Many of these
grounds for opposing the
application to make the award an order of court and for the review of
the award (which overlapped to a
considerable extent) were not
pursued on appeal.
[17]
Concerning the alleged lack of jurisdiction by the arbitrator, the
court below found that this ground had no merit as the arbitration
was based on a valid court order which was the result of an agreement
by the parties. The court held further that, as this court
order had
not been rescinded, varied or set aside, it was still valid, and that
it gave the arbitrator the authority to adjudicate
the dispute
between the parties. Regarding the alternative submission that the
arbitral award should be rescinded under Uniform
Rule 42(1)
on the
basis that the agreement for referral was void as it was based on a
mistake of law common to the parties, the court below
held that this
ground had no substance as, at the time of the order, Marais knew
that EP was represented by the Stevensons as its
duly appointed
directors who were registered as such. Accordingly, the court below
held that there was no room for a mistake of
law by the parties.
[18]
Regarding the attack based on non-compliance with the provisions of
s
25(1)
of the
Arbitration Act (as
to the mode of delivery of an
award), the court below found that the provision was essentially
directory and not mandatory. Furthermore,
it held that as the
arbitration in this instance was consensual, the parties were free to
make their own arrangements regarding
any aspect of the arbitration.
As a result it found this ground to be without any substance. It is
to be noted that this ground
of attack was not pursued on appeal.
[19]
Concerning the alleged irregularities or gross misconduct, the court
found all the complaints raised by Tobias to be devoid
of any merit.
The court held that, having regard to the proceedings and their
context, no reasonable, objective or informed person
could reasonably
have apprehended that the arbitrator was biased or prejudiced or
unable to bring an impartial mind to bear on
his adjudication of the
issues.
[1]
The court thus
dismissed this ground as being without any merit.
[20]
On the issue of costs against Naidoo, the funder, it is common cause
that the first appellant had entered into a funding agreement
with
Tobias on 31 July 2009. She was later joined as a party to the
litigation. In terms of this agreement, Tobias had ceded all
his
rights, claims and obligations in respect of the arbitration and the
litigation involving the property to Naidoo. In return
Naidoo was set
to receive a substantial portion of the property. Based on this EP
had asked for costs on an attorney and client
scale against both
Naidoo and Tobias, jointly and severally.
[21]
The court below held that ordinarily costs are a matter for the
discretion of the trial judge. Importantly, the court found
that,
absent any exceptional circumstances, generally courts are averse to
awarding costs against non-parties. However, it found
that in the
circumstances of this case, and given the terms of the funding
agreement, Naidoo had effectively acquired for herself
the exclusive
right to determine the course of litigation as well as appointing her
own preferred legal team, which made her the
dominus
litis
. It also found that the fact that
she stood to benefit from funding this litigation made her a
‘commercial’ as opposed
to a ‘pure’ funder.
Thus the court held that it was just that she be ordered to pay the
costs of the litigation incurred
from 29 July 2009.
[22]
Accordingly the high court granted all the relief sought by EP.
Tobias appeals to this court with the leave of the court below.
[23]
I turn to a consideration of those contentions that were persisted
with before this court on appeal.
[24]
As to the authority of the arbitrator to conduct the arbitration, the
appellants’ main contention is that the Stevensons,
who
purported to represent EP as its directors, did not have authority to
do so with the result that the agreement purportedly
concluded by the
parties, which is foundational to Moosa J’s order and, in turn,
the arbitration by Hodes SC, is invalid.
The contention therefore is
that the arbitration award is invalid and cannot be made an order of
court.
[25]
It is common cause that this attack was not raised on the papers in
the litigation preceding the order by Moosa J, nor in answer
to the
statement of case or in evidence before the arbitrator. Any complaint
about the arbitrator’s lack of jurisdiction
being potentially
dispositive of the matter should have been raised at the beginning of
the arbitration as a point in limine. This
was never done. Instead,
Tobias participated in the arbitration proceedings until December
2009 when he unsuccessfully applied
for a postponement. It is common
cause that Tobias was until then represented by an attorney and
counsel. In those circumstances
it is safe to infer that he
participated knowingly and voluntarily in the arbitration
proceedings. In this regard the following
dictum by Gauntlett AJ in
Abrahams v RK Komputer
SDN BHD
2009 (4) SA 201
(C) at
210E-F is apposite:
‘
If,
as her affidavit would have it, it is the latter, it does not avail
her now – disgruntled by the results – to fossick
in the
procedural ashes of the proceedings and to disinter her perception
when it suits. An attack based on bias – with its
devastating
legal consequences of nullity – is not to be banked and drawn
upon later by tactical choice. As the Court of
Appeal in England has
put it,
“
It
is not open to [the litigant] to wait and see how her claims …
turned out before pursuing her complaint of bias …
[she]
wanted to have the best of both worlds. The law will not allow her to
do so.” ’
This
is exactly what Tobias did in this case. Instead of objecting to the
jurisdiction of the arbitrator at the beginning, he participated
in
this protracted arbitration until the proverbial shoe started to
pinch.
[26]
Confronted with a similar situation in
Purser v Sales; Purser &
another v Sales & another
[2000] ZASCA 135
;
2001 (3) SA 445
(SCA) para 14 this
court held that:
‘
It
is common cause,
in casu,
that the appellant never raised any objection to the jurisdiction of
the English Court. Instead he filed a plea on the merits.
When the
respondent applied for the removal or transfer of the matter from the
Queen’s Bench Division to the Central London
County Court the
appellant moved for the striking out of the respondent’s claim
“for want of prosecution”.’
The court held:
‘
The
appellant thus participated fully in the proceedings.’
This
Court held further, at para 22 that,
‘
-
a defendant who raises no objection to a court's jurisdiction and
asks it to dismiss on its merits a claim brought against him
is
invoking the jurisdiction of that court just as surely as the
plaintiff invoked it when he instituted the claim. Such a defendant
does so in order to defeat the plaintiff's claim in a way which will
be decisive and will render him immune from any subsequent
attempt to
assert the claim. Should he succeed in his defence, the doctrine of
res
judicata
will afford him that protection. Should his defence fail, he cannot
repudiate the jurisdiction of the very court which he asked
to uphold
it. In my view, the facts point overwhelmingly to the appellant
having submitted to the jurisdiction of the English Court.
’
[27]
Not having objected to the jurisdiction of the arbitrator at the
outset and thereafter having voluntarily participated in the
arbitration until his application for a postponement was refused,
Tobias must, in my view, be deemed to have acquiesced to his
jurisdiction.
[28]
It was further contended that the order by Moosa J should be
rescinded in terms of
Rule 42
on the basis that it was induced by a
mistake of law common to the parties. As already indicated, it is
common cause that the court
order for referral was based on an
agreement reached by the parties who were both legally represented.
This very case was instituted
by EP represented by the Stevensons as
its directors. This fact was known to Tobias. There could therefore
have been no for any
mistake of law, certainly not one common to the
parties, for the Stevensons evidently did not labour under any
mistake. Notably
the company’s share register reflected the
Trust as the sole member whilst the records of the Registrar of
Companies reflected
Alex and Gary as the duly appointed directors of
EP. These are public documents which Tobias was free to inspect if he
had wished
to do so. In any event this defence was raised
neither during the pre-arbitration hearings nor at the beginning or
even during
the arbitration. Suffice it to state that the defence has
no merit.
[29]
Another ground of attack was based on the failure to comply
withs 25(1) of the
Arbitration Act. As
I have mentioned above,
this ground was not pursued on appeal.
[30]
Another complaint was that the arbitrator did not deal with all the
issues raised in the arbitration, one of which was the
allegation
that Alex was a fugitive from justice who should therefore not be
given a hearing by our courts, and, secondly that
the arbitrator
failed to decide the issue of whether EP was properly represented by
the Stevensons. It suffices to state that the
contention that Alex
was a fugitive from justice lacked any factual foundation. During his
evidence before the arbitrator Alex
denied that he was a fugitive
from justice. There was nothing to gainsay that.
[31]
As to the issue of the representation of EP, as I have already
pointed out, the records of the Registrar of Companies reflected
Alex
and Gary as the duly appointed directors of EP. These two
grounds must thus also fail.
[32]
I now turn to the review of the arbitral award. The correct legal
approach to a review of an arbitral award was enunciated
by Gardiner
J in the dictum in
Clark v African Guarantee and Indemnity Co Ltd
1915 CPD 68
at 77 as follows:
‘
The
Court will always be most reluctant to interfere with the award of an
arbitrator. The parties have chosen to go to arbitration
instead of
resorting to the Courts of the land, they have specially selected the
personnel of their tribunal, and they have agreed
that the award of
that tribunal shall be final and binding. As
Halsbury,
L.C.,
said in
Holmes
Oil Co. v Pumpherston Oil Co.
(Court of
Sess., R.18, p. 53):
“
One
of the advantages which people are supposed to get by a reference to
arbitration is the finality of the proceedings when the
arbitrator
has once stated his determination. They sacrifice something for that
advantage – they sacrifice the power to appeal.
If, in their
judgment, the particular judge whom they have selected has gone wrong
in point of law or in point of fact, they have
no longer the same
wide power to appeal which an ordinary citizen prosecuting his remedy
in the courts of law possesses, but they
sacrifice that advantage in
order to obtain a final decision between the parties. It is
well-settled law, therefore, that when
they have agreed to refer
their difficulties to arbitration as they have here, you cannot set
aside the award simply because you
think it wrong. The parties have
agreed that it shall not be subject to the ordinary modes of appeal
and that it shall be final;
and that is, in nine cases out of ten,
the very object which they mean to attain by submitting their
difficulties to arbitration.”
’
[33]
It is clear from this statement that the rights of parties to have an
arbitral award set aside are very limited. Our courts
observe a high
degree of deference to arbitral decisions in line with the principle
of party autonomy. Hence the scope for intervention
by the courts is
very limited.
[2]
The
circumstances under which an arbitral award can be set aside are set
out in
s 33
of the
Arbitration Act as
follows:
‘
(1)
Where -
(
a
) any
member of an arbitration tribunal has misconducted himself in
relation to his duties as arbitrator or umpire; or
(
b
) an
arbitration tribunal has committed any gross irregularity in the
conduct of the arbitration proceedings or has exceeded its
powers; or
(
c
) an award
has been improperly obtained,
the
court may, on the application of any party to the reference after due
notice to the other party or parties, make an order setting
the award
aside.’
[34]
Having had regard to the conspectus of the evidence, the high court
found that the arbitrator’s conduct complained of
did not
amount to misconduct or any gross irregularity that justified the
award being set aside. It is trite that the onus to prove
a gross
irregularity rests on the party who alleges it. Furthermore, proof of
such gross irregularity is a pre-requisite for the
setting aside of
the award.
[3]
It suffices to
state that there is no evidence or suggestion by Tobias to sustain
any allegation of gross irregularity by the arbitrator.
It follows
that this ground must fail.
[35]
Some allegations of misconduct in relation to his duties as an
arbitrator were made against the arbitrator. The gravamen of
this
complaint is that he proceeded with the arbitration in Tobias’
absence without enquiring if he had closed his case or
whether he
wished to participate further in the proceedings. It is alleged that
this failure denied Tobias a fair hearing. The
question is whether
this amounts to an irregularity or misconduct as envisaged by
s 33.
[36]
As stated in
Total Support Management,
the grounds on which an arbitration award will be set aside on a
complaint of misconduct are very narrow. This can only be done
in
instances of wrongful or improper conduct, dishonesty, mala fides or
partiality and moral turpitude. As already indicated Tobias
had
instructed his legal representatives to withdraw from the arbitration
should his application for a postponement be refused.
The application
for postponement was refused. His legal representatives then withdrew
from the proceedings. This was a calculated
decision on his part. He
must have fully appreciated the logical consequences of his decision.
Furthermore, neither he nor his
legal representatives indicated that
he wished to participate further in the arbitration. It was not for
the arbitrator to compel
him to participate further as he had made a
conscious decision to terminate his participation. This ground of
alleged misconduct
on the part of the arbitrator is therefore devoid
of merit.
[37]
It was submitted further that at some stage during the proceedings
when Tobias was absent, the arbitrator suggested that Tobias
did not
exist. Tobias perceived this to be an unwarranted attack against him
or scepticism by the arbitrator about him. Another
complaint was that
the arbitrator had misconducted himself when he put a series of
leading questions to one witness designed to
prove that EP’s
shareholding had been paid for by the Trust. The allegation was that
by so doing, the arbitrator had abandoned
all pretext to
impartiality. The high court found that the evidence and the record
did not bear these allegations out. I agree.
[38]
The last complaint was that the arbitrator had received private
correspondence from Blignaut during the arbitration. However,
it is
not in dispute that such communication was unsolicited, Blignaut
having taken it upon himself to communicate with the arbitrator.
Furthermore, the arbitrator disclosed this to the parties. Of
importance, the arbitrator stated that he took no account of this
correspondence and that therefore it did not influence him in his
findings. This is borne out by the record. In my view, this complaint
has no merit.
[39]
I now proceed to deal with the order of costs made against Naidoo,
the funder. It is common cause that Tobias and Naidoo had
concluded a
written agreement in the form of a
pactum
de quota litis
on 31 July 2009. In
terms of this funding agreement, Naidoo took cession of Tobias’
‘rights, title, interest claim
and demand in the arbitration
proceedings and all associated actions or proceedings of whatever
nature involving the property’.
Furthermore, she was appointed
as ‘the true and lawful attorney and agent for purposes of
giving effect to all matters connected
with the cessions and
obligations contained in this agreement’. Evidently, she was
not an impartial funder who left the management
of the case to the
real litigant. On the contrary, she had taken over control of this
litigation and became a party to it although
not cited as such. In
addition, she stood to acquire a substantial shareholding in a
company in which she and Tobias would be the
only shareholders in
respect of this property.
[40]
In respect of two of the three applications that served before the
high court, namely the application to make the arbitration
award an
order of court and the counter application to review and set aside
the arbitration award, the court below held Tobias
solely liable for
those costs until 28 July 2009 on the scale as between attorney and
client. From 29 July 2009 (being the date
when she became involved in
the litigation) it ordered Naidoo to pay the costs of EP jointly and
severally with Tobias also on
the punitive scale as between attorney
and client. Insofar as the third application was concerned, namely,
the one by EP to set
aside the order that had been fraudulently
obtained before Riley AJ, the court below ordered Tobias and his
father, who was plainly
a party to the fraud, to pay EP’s costs
jointly and severally once again on the punitive scale. I agree with
the court below
that, given the circumstances of this case and the
critical role played by Naidoo in financing and controlling this
litigation
to the exclusion of Tobias, and the substantial benefits
she stood to receive, it was only just and fair that an order should
have
issued against her.
[41]
The manner in which Tobias conducted this litigation warrants
condemnation. The record speaks volumes of the dishonourable
manner
in which Tobias conducted himself throughout this protracted legal
battle. He instituted many applications which proved
to be frivolous
and which unfortunately took up much of the court’s precious
time. What is worse, he went to the extent of
deliberately subverting
some of the court orders. He obtained some orders through fraud. No
doubt he did all this to obtain ownership
of a property to which he
knew he was not entitled. He had embarked on multiple proceedings
which were vexatious. Such conduct
was deserving of a punitive costs
order.
[42]
Something has to be said about the size and state of the appeal
record. The first six volumes of the appeal record comprise
the
entire arbitration record which consists of pleadings,
pre-arbitration notices, pre-arbitration minutes of two meetings,
various
interlocutory applications, heads of arguments, a transcript
of the proceedings, the exhibits in the arbitration and the awards.
According to the first respondent’s Practice Note all of these
were not relevant for a determination of the appeal. The appellants
conceded, correctly in my view, that parts of the record in Volumes
1, 2, 7, 11, 15 and the whole of volumes 12, 13, and 14 are
not
relevant to the resolution of this appeal. Furthermore, it is not
disputed that the record contains unnecessary duplication.
This is a
flagrant disregard of the rules of this court pertaining to appeals
which is to be deprecated.
[43]
In conclusion, I have not been persuaded that the trial judge erred
in his judgment. The appeal must accordingly fail.
[44]
In the result, the following order is made:
The
appeal is dismissed with costs, such costs to include the costs
consequent upon the employment of two counsel where two counsel
were
employed.
_________________
L
O BOSIELO
JUDGE
OF APPEAL
Appearances:
For
Appellant: N Singh SC (with him K Yourden)
Instructed
by:
Woodhead
Bigby & Irving; Durban
Lovius
Block Attorneys, Bloemfontein
For
Respondent : J Muller SC (with him G Rome)
Instructed
by:
Eversheds;
Johannesburg
Matsepes
Attorneys, Bloemfontein
[1]
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
[1999] ZACC 9
;
1999
(4) SA 147
(CC) para 48.
[2]
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews & another
2009
(4) SA 529
(CC) para 28;
Telcordia
Technologies Inc v Telkom SA Ltd
2007
(3) SA 266 (SCA).
[3]
Total
Support Management (Pty) Ltd v Diversified Health Systems (SA)
(Pty)
Ltd
[2002] ZASCA 14
;
2002 (4) SA 661
(SCA) para 21.