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[2020] ZAGPJHC 180
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Transaction Capital Recoveries (Pty) Ltd v Emfuleni Local Municipality (2014/2020) [2020] ZAGPJHC 180 (7 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
No.
2014/2020
In
the matter between:
TRANSACTION
CAPITAL
RECOVERIES (PTY)
LIMITED
APPLICANT
And
EMFULENI
LOCAL
MUNICIPALITY RESPONDENT
JUDGMENT
M
I
LL
A
R.
A J
1.
The applicant and respondent are
presently engaged in arbitration proceedings for the determination of
disputes. The applicant claims
payment of monies it contends are owed
to it by the respondent and the respondent has counterclaimed from
the applicant monies
it contends were overpaid to the applicant.
2.
The
arbitrator, pursuant to the arbitration made an
"
award”
[1]
.
It is this award and the applicant's contention that it is appealable
which is the subject matter of the present application.
For its part,
the respondent argues that the award is not a final award and for
that reason is not appealable.
3.
The applicant having taken the view that
it
did
,
after the award was handed down on 4
December 2019
,
then
proceeded to deliver a notice of appeal and to initiate the appeal
process in terms of the agreement that had been reached
between the
parties. The respondent, disputing that the award is appealable,
refused to take part in the appeal process or to nominate
an appeal
arbitrator as it was entitled to do. The nominated appeal arbitrators
for their part, absent the agreement of the respondent,
are unable to
hear the appeal and hence
the
present application for a declaratory
order so that the applicant can proceed with an appeal at this stage.
4.
The award of 4 December 2019 is as
follows:
'WARD
67.
In the event
,
I make the following award:
67.1
In the light of the conclusion in
this award
,
the
parties are required to deliver within 14 days written submissions on
the following issues:
67.1.1
The total amount of commission,
if any, to which the Claimant is entitled for the period August
-
September 2018 as at the date of this
award together with interest capitalised and accrued up to the date
of this award
.
67.1.2
The amount of which the
Respondent is entitled pursuant to its counterclaim together with
interest capitalised and accrued up to
the date of this
award.
67.2
What is the appropriate order to
make in these proceedings?".
5.
.
It was
argued on behalf of the applicant that notwithstanding the terms
of the award and the request for further submissions
in
respect of the either the further
amounts which may be due to the applicant or the value of the
respondent's counterclaim as
well
as
the
question
posed as
to
the
appropriate order
to
be
made in the proceedings - the arbitrator
had expressly and if not expressly, impliedly made findings from
which the questions posed
in the award could be answered.
6.
It
was
argued
that
this
was
apparent from the
finding in
paragraph 65
of
the
award that
"the
experts indicated that the amount
received by TCR on behalf of the municipality from 22 September 2018
to 17 May 2019 is R10, 769,
702.11. This amount has not been updated
and the experts undertook to update this amount as and when
subsequent bank statements
and information is made available to them.
It may well be that the (sic) TCR is entitled to some commission for
the period August
2018 to September 2018 when it stopped
collections."
7.
This it was argued was indicative of a
finding of the amount that was due to the applicant and
that no
further submissions need have been
made
by
the
applicant. Additionally, it was argued
that the award in paragraph 67.1.2 which made plain, although it did
not express it in specific
monetary terms, that the respondent's
counterclaim was allowed and that having regard to the evidence led
before the arbitrator,
the allowing of such counterclaim had the
effect of extinguishing the claim of the applicant was in fact in its
effect, a final
award dismissing the applicant's claim.
8.
The respondent argued that the award was
not a final award given its express terms and that it had been agreed
between the parties
at the pre- arbitration meeting th
.
at
only a "final award" would be subject to an
appeal.
9.
The
use of the term
"
award"
to describe the directions given
,
or
even the fact that the paragraph containing such directions was
headed
"
Award"
,
does
not as a matter of course elevate them to either an award or to being
final
[2]
.
10.
In
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another
[3]
the
Constitutional Court held that :
"Courts
should be respectful of the intentions of the parties in relation to
procedure. In so doing, they should bear in mind
the purposes of
private arbitration which include the fast and cost-effective
resolution of disputes
.
If
courts are too quick to find fault with the manner in which an
arbitration has been concluded, and too willing to conclude that
the
faulty procedure is unfair or constitutes
a
gross irregularity within the meaning
of section 33(1), the goals of private arbitration may well be
defeated.
"
11.
The
refusal of the appeal arbitrators to proceed with the appeal in the
absence of the agreement of the parties or the order of
this court is
consonant with
the
approach
to be followed in such instances. In Gutsche Family Investments (Pty)
Ltd and Others v Mettle Equity Group (Pty) Ltd and
Others
[4]
the Supreme Court of Appeal concluded, that in circumstances where
parties do not expressly agree to the jurisdiction of an appeal
arbitrator (or a panel) the appeal arbitrator cannot proceed to
finally determine the issue and thus determine his own
jurisdiction
12.
In
regard to the approach to be taken in the interpretation of the award
in the present matter, in Natal Joint Municipal Pension
Fund v
Endumeni Municipality
[5]
the
court held:
"[18].
Over the last century there have
been significant developments in the law relating to the
interpretation of documents, both in this
country and in others that
follow similar rules
to
our own.
It
is
unnecessary to
add
unduly to the burden of
annotations by trawling through the case law on the construction of
document in order to trace those developments.
The relevant
authorities are collected and summarized in Bastian Financial
Services (Pty) Ltd v General Hendrik Schoeman Primary
School. The
present state of the law can be expressed as follows: Interpretation
is
the process of attributing
meaning to the words used in a document
,
be it legislation, some other
statutory instrument, or contract, having
regard to the context provided by
reading the particular provision or provisions in the light of the
document as a whole and the
circumstances attendant upon its coming
into existence. Whatever the nature of the document, considerations
must be given to the
language used in the light of the ordinary rules
of grammar and syntax; the context in which the provision appears
;
the apparent purpose to which it
is directed and the material known to those responsible for its
production
.
Where
more than one meaning is possible each possibility must be weighed in
the light of all these factors. The process is objective
,
not subjective
.
A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike results
or undermines the apparent purpose
of the document.
Judges must be alert to
,
and guard against, the temptation to
substitute what they regard as reasonable, sensible or businesslike
for the words actually
used. To do so in regard to a statute or
statutory instrument is
to
cross the divide between interpretation
and legislation
;
in a contractual context it is to
make a contract for the parties other than the one they in fact made.
The
"
inevitable
point of departure is the language of the provision itself,"
read in context and having regard to the purpose of
the provision and
the background to
the
preparation and production of the document."
13.
Objectively construed, the agreement
between the
parties
was
that
only a
final
decision or award could be
the
subject of an
appeal.
Whether or not the award made by the
arbitrator is in fact an award or even final
,
must appear from its express terms and
not by inference as the applicant has sought to do
.
14.
The award in the present matter, is
,
properly construed nothing more than
directions by the arbitrator to the parties for further submissions.
This much is readily apparent from the
text.
15.
Most telling perhaps and indicative of the fact
that the award is neither final nor for the matter an
award in the true sense, is
apparent from paragraph 67.2 in which
the arbitrator poses the question as to what the appropriate order to
be made was
"
in
these proceedings". From this it is self-evident that the
arbitrator did not intend to make any award, final or otherwise
,
in the true sense.
16.
For the reasons set out above
,
I find that the award of 4 December 2019
by the arbitrator is neither an award nor is it appealable
.
17.
In the circumstances, I make the
following order:
17.1
The application is dismissed.
17.2
The applicant is ordered to pay the
respondent's costs of the application, which costs are to include the
costs consequent upon
the employment of two counsel.
___________________
A
MILLAR
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
HEARD
ON: 4 AUGUST 2020
JUDGMENT
DELIVERED ON: 7 AUGUST
2020
(ELECTRONICALLY
HANDED DOWN BY EMAIL DELIVERY TO THE PARTIES)
COUNSEL
FOR THE APPLICANT: ADV. ARG MUNDELL SC
INSTRUCTED
BY: MARIE-LOU BESTER INC
REFERENCE:
MS ML BESTER
COUNSEL
FOR THE FIRST RESPONDENT: ADV. W MOKHARE SC
ADV. MC MAKGATO
INSTRUCTED
BY: SELEKA ATTORNEYS
REFERENCE:
MR SELEKA
[1]
"award" - used as a verb means to give something
officially as a prize, payment, or reward - Compact Oxford English
Dictionary, Third Edition, Oxford University Press, 2005.
[2]
Turffontein Estates Ltd v Mining Commissioner Johannesburg
1917 AD
419
at 431.
[3]
2009 (4) SA 529
(CC), at para 236.
[4]
[5]
2012 (4) SA 593
(SCA), para [18] footnotes omitted.