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[2017] ZAECPEHC 28
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Gutsche Family Investments (Pty) Limited and Others v Mettle Equity Group (Pty) Limited (4490/2015) [2017] ZAECPEHC 28 (30 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO: 4490/2015
DATE
HEARD: 02/03/2017
DATE
DELIVERED: 30/03/2017
In
the matter between
GUTSCHE
FAMILY INVESTMENTS (PTY) LIMITED
First
Applicant
HEATHER
WENDY LYNCH N.O.
Second
Applicant
DENYS
CLAUDE WESSELS N.O.
Third
Applicant
NEVILLE
CARSTENS SCHONEGEVEL N.O.
Fourth
Applicant
HILARY
ALEXANDRA EVELYN DUDLEY N.O.
as
representative of CITADEL FIDUCIARY
(PTY)
LIMITED
Fifth
Applicant
(the
Second to Fifth Applicants being cited in their
capacities
as Trustees of the LYNCH TRUST)
and
METTLE
EQUITY GROUP (PTY) LIMITED
Respondent
JUDGMENT
ROBERSON
J:
[1]
This is an application in terms of
s 31
(1) of the
Arbitration Act 42
of 1965
, for the arbitration award made in favour of the applicants
on 28 May 2008 to be made an order of court, and that the respondent
be ordered to pay the applicants the sum of R7 866 081.28,
interest thereon and the costs of the application. The
respondent opposed the application on the ground that the award had
been extinguished by set-off and payment.
HISTORY
[2]
The matter has a long history. The facts are largely common
cause. On 22
April
2003 the applicants and a company Mettle Operations Ltd entered into
a written agreement entitled “Sale of Shares and
Claims”,
in terms of which the applicants sold to Mettle Operations Ltd the
entire issued share capital of the company Formex
Industries (Pty)
Ltd (Formex) and all shareholders’ claims on loan account in
and against Formex. The purchase price
was R24 000 000.00,
payable by an initial payment of R18 000 000.00, with the
balance of R6 000 000.00
to be paid not later than 31 March
2004. The agreement contained a number of warranties by the
sellers. These warranties
will be referred to later in this
judgment. On 27 October 2003 Mettle Operations Ltd ceded all
its rights and delegated all
its obligations in terms of the sale
agreement to the respondent.
[3]
The respondent paid the initial payment of R20 000 000.00.
On 31 March 2004 it paid R1 483 270.11
leaving a balance of
R4 803 558.89 (which included interest) on the purchase
price. The respondent did not pay
this balance because it
claimed that it had suffered losses in this amount caused by breaches
of various warranties by the applicants.
These losses were set
off against the balance of the purchase price.
[4]
The non-payment by the respondent formed the subject of a dispute
which was referred to arbitration. Although arbitration
proceedings commenced in 2004, for reasons which are not necessary to
relate in this judgment, the arbitration hearing only resumed
on 5
May 2008 and ran until 13 May 2008.
[5]
In their statement of claim in the arbitration, the applicants
claimed payment of R4 803 558.89, interest on the capital
sum of R4 516 729.89 at the prime overdraft rate charged by
First National Bank from time to time plus 2%, and costs
as between
attorney and own client. The interest rate and the scale of
costs were provided for in the sale agreement.
[6]
In its statement of defence, the respondent admitted the indebtedness
to the applicants, but claimed set off of that amount
by the amount
alleged to be owed to it by the applicants, namely its losses caused
by the applicants’ breaches of six warranties.
These
alleged breaches were:
[6.1]
A breach of the warranty that the premises from which Formex
conducted its business satisfied the
requirements of relevant
authorities for the grant of the trade licences required by Formex to
conduct its business. This
breach was referred to as
“Regulatory Compliance.” The alleged breach was a
failure to comply with certain sections
of the
Occupational Health
and Safety Act 85 of 1993
and certain regulations of the Machinery
and Occupational Safety Act 6 of 1983.
[6.2]
A breach of the warranty that Formex had valid licences for its
software. This breach
was referred to as “Illegal
Software”. This breach involved the lack of licences for
27 installations of Microsoft
Office 97 and “Auto Cad 2000”.
[6.3]
A breach of the warranty that all amounts due and owing to Formex by
its trade debtors
as at the completion date would be recovered within
90 days of the completion date. This breach was referred to as
“Debtors
Book”. It was alleged that an amount owing
by a debtor had not been recovered within 90 days and had to be
written
off because the contract between Formex and the debtor had
been cancelled.
[6.4]
A breach of the warranty that Formex had no liabilities, as at the
effective date of the
agreement. This breach was referred to as
“Undisclosed Liability.” The allegation was that
Formex had not
disclosed a liability to a particular service provider
and that the respondent had to pay the service provider.
[6.5]
A breach of the warranty that Formex’s contracts were in full
force and effect and
that Formex was not in breach of any of the
contracts and had complied with its obligations in terms of the
contracts. This
breach was referred to as “Tool Rework”.
It was alleged that Formex had failed to manufacture tooling in
accordance
with its obligations and the respondent was required to
remedy the work.
[6.6]
A breach of the warranty that the books and records of Formex were up
to date and had
been properly kept according to law. This
breach was referred to as “Obsolete Stock”. It was
alleged that
books and records had not been properly kept and that a
number of stock items were reflected in the books which were in fact
obsolete
stock items.
[7] Various amounts
representing the losses caused by the breaches were alleged, the
total of such losses being R5 398 394.91.
[8] Further in its
statement of defence the respondent referred to clause 22 of the sale
agreement which provided that if either
party breached one or more of
their obligations in terms of the agreement, including a warranty,
and failed to remedy such breach
within 30 days of receipt of written
notice from the other party, the other party would have the right to
seek specific performance
of the defaulting party’s
obligations, or the right to cancel the agreement and seek
restitution, in either instance without
prejudice to the right of the
other party to claim damages it may have suffered by such failure.
The respondent alleged that
the applicants had waived their right to
written notice, alternatively alleged that it had given notice.
[9]
The respondent brought a claim in reconvention to the extent that
after set off the applicants remained indebted to the respondent,
alternatively if the defence of set off did not succeed. It
claimed an indemnity in respect of the losses it had allegedly
suffered as a result of the applicants’ breaches of warranties
in the total sum of R5 398 394.91, alternatively
payment of
that sum, interest at the prescribed legal rate and costs on the
attorney and client scale. Clause 8.5 of the
sale agreement
provided:
“
The Sellers hereby jointly and
severally indemnify the Purchaser against any loss or damage which
the Purchaser may sustain or incur
arising from, or relating to, the
breach of any one or more of the Warranties.”
[10]
In their statement of defence to the claim in reconvention the
applicants denied knowledge of the alleged breaches of warranties
or
damages suffered. They further contended that notice in terms
of clause 22 had not been given and denied having waived
the
requirement of notice. They denied any obligation to remedy any
alleged breaches.
[11]
In his award the Arbitrator found that notice in terms of clause 22
was required, that it had not been given, and that the
applicants had
not waived the requirement of notice. He consequently did not
uphold the counterclaim. Evidence was
however led at the
hearing by the respondent on the alleged breaches of the warranties.
Evidence was not led in respect of
the claims in respect of tool
rework and obsolete stock. The Arbitrator said in his award
that in his award of 23 August
2004 he had found that the respondent
had not given notice of these two claims, and during the 2008
proceedings ruled that the
respondent was not entitled to proceed
with those claims. In his award the Arbitrator said:
“
It is not necessary for me to
have regard to the provisions of clause 18
[1]
as I have found that there was no waiver. However, just as the
parties requested me to express my views on the Respondent’s
claims – even if I found against the Respondent on clause 22
and waiver – I assume that they would derive benefit from
my
views on clause 18 if the matter should proceed on appeal.”
[12]
The Arbitrator found that the respondent had established its losses
in respect of illegal software and debtors book, and a
portion of its
claimed losses in respect of regulatory compliance. He found
that the respondent had not established its loss
in respect of
undisclosed liability.
[13]
The Arbitrator made the following award:
“
The Respondent is ordered to
pay the Claimants:
(1)
the sum of R8 434 579,17 together with accrued interest
thereon from 6 May
2008 (calculated at the Prime Rate defined in the
Sale Agreement);
(2)
costs as between attorney and own client (as provided for in terms of
clause 24.2
of the Sale Agreement), which costs shall include:
(a)
the costs of two counsel where they have been employed;
(b)
the costs of the exception in August 2004;
(c)
any costs occasioned by the Respondent’s unsuccessful
application to amend its claim
in reconvention during the course of
the arbitration;
(d)
any costs occasioned by the unsuccessful applications to allow
further documents to
be introduced by the Respondent as well as for a
postponement.”
[14]
The respondent appealed against this award. It appealed against
the finding: that it was required to give notice; that
it had not
given notice; that the applicants had not waived the requirement of
notice; that the full claim in respect of regulatory
compliance had
not been proved; and that the respondent was prohibited from proving
its claims in respect of tool rework and obsolete
stock. It
also appealed against the costs order. The respondent prayed
for an order that the award be set aside and
substituted with an
award upholding the plea of set off and awarding the respondent
R411 776.65 together with interest thereon.
Alternatively
it prayed for an order setting the award aside and substituting it
with an award upholding the applicants’
claim and the
respondent’s counterclaim in the amount of R4 104 953.24
together with interest thereon. Further
relief claimed was for:
the costs of the arbitration; the costs of an exception which was
heard in August 2004; the costs of an
application for an amendment
which was brought during the course of the arbitration proceedings;
an order granting the amendment;
and an order that the matter be
remitted to the Arbitrator to hear evidence on the claims for tool
rework and obsolete stock.
[15]
The applicants filed a conditional cross-appeal against the
Arbitrator’s findings that the respondent had proved its
claims
to the extent that he found.
[16]
On 12 June 2009 the Appeal Tribunal upheld the respondent’s
appeal against the findings that notice was required, that
notice had
not been given, that a portion of the claim in respect regulatory
compliance had not been proved and that the respondent
was not
entitled to proceed with the claims in respect of tool rework and
obsolete stock. The Appeal Tribunal found that
the respondent
had established its claim in respect of regulatory compliance in a
higher amount than that found by the Arbitrator.
The
applicant’s cross-appeal was dismissed. The claims in
respect of tool rework and obsolete stock were remitted to
the
Arbitrator for adjudication. The final amount for which the
applicants were liable to the respondent was to be calculated
after
the determination of these two outstanding claims.
[17]
The applicants unsuccessfully (in the High Court and the Supreme
Court of Appeal) applied to review and set aside the decision
of the
Appeal Tribunal.
[18]
The Arbitrator did not adjudicate the two claims which the Appeal
Tribunal had remitted because on 7 October 2013 the parties
concluded
an arbitration agreement in the following terms:
“
A.
INTRODUCTION
1.
The Claimants have an award of R8,434,579.17 together with accrued
interest thereon
from 6 May 2008 (calculated at the Prime Rate as
defined in the Sale Agreement) in their favour (“the Award”).
2.
The Claimants contend that the award of interest at the Prime Rate is
an omission
on the part of the Arbitrator
a quo
and that such
award should have been at the stipulated contractual rate of the
Prime Rate +2% and accordingly the Award serves
to be corrected in
accordance with the provisions of
section 30
of the
Arbitration
Act
>, 1965.
3.
The Respondent contends that no interest should have been awarded on
the amount
of R286 829.00, since this was not prayed for in the
statement of claim and accordingly the Award contains a patent error
and serves to be corrected in accordance with the provisions of
section 30
of the
Arbitration Act
>, 1965.
4.
The Respondent has obtained an appeal award in its favour which has
directed
the arbitrator to:
4.1
determine that the Respondent’s claim as set out in paragraph
3.7 and 3.8 of its statement
of defence in respect of the tool rework
and obsolete stock; and
4.2
thereafter determine the final amount for which the Claimants are
liable to the Respondent.
5.
The Claimants have admitted the Respondent’s loss in respect of
the claims
set out in paragraph 4.1 above in an amount of R
303,303.00, which admission has been accepted by the Respondent and
the aforesaid
claim is therefore no longer in dispute.
[2]
6.
In view of the settlement of the claim referred to in paragraph 5
above, the
Parties are agreed that the aggregate of the Respondent’s
claims in reconvention is R4,288,754.00.
7.
The Parties have been unable to mediate a final resolution of the
dispute and
accordingly all remaining issues now serve to be resolved
by arbitration.
8.
The Parties have agreed to refer those remaining issues, identified
in Part B
below, to arbitration before a new arbitration tribunal and
wish to record such agreement in writing.
B
AGREEMENT
1.
The following issues are hereby referred to arbitration and the
arbitration tribunal
is empowered to determine such issues:
1.1
the entitlement of Claimants to a correction of the interest rate
accruing on the Award
in accordance with the provisions of
section 30
of the
Arbitration Act,
1965
;
1.2
the entitlement of the Respondent to a correction of the amount in
respect of which interest
was awarded, in accordance with the
provisions of
section 30
of the
Arbitration Act,
1965
;
1.3
the date from which interest shall run on the component parts or
whole of the Respondent’s
claim in reconvention of
R4,288,754.00 and the rate at which such interest shall accrue;
1.4
the costs of the Claimants’ exception and objection to the
Respondent’s amendment
to its claim in reconvention; and
1.5
the costs of the arbitration, including proceedings before the
arbitration tribunal.
2.
The Parties further agree that:
2.1
no further evidence will be led at the resumed hearing and that the
issues raised in paragraph
1 above shall be determined on the record
of the arbitration as prepared for and used in the appeal to the SCA
under case number
115/2011, and those portions of the record of the
appeal arbitration not included in the SCA record; save that the
Respondent shall
be entitled to lead evidence in relation to the
tender it made on 8 May 2008 and the document attached by the
Claimants to their
closing argument in the arbitration, marked HOA1;
2.2
the arbitration tribunal will consist of a panel of three arbitrators
one of whom shall
be the present arbitrator, Adv J Myburg SC and the
additional members being Piet Streicher (retired judge) and Adv S
Burger SC.
To the extent that either Piet Streicher or Adv S
Burger do not accept the appointment as arbitrator, such position
shall be filled
by a retired judge or senior counsel to be agreed
upon by the parties. In the absence of agreement as to the
appointment
of an arbitrator in replacement of Piet Streicher or Adv
S Burger (as the case may be), then the outstanding appointment shall
be made by AFSA from those retired judges or senior counsel who are
on its panel of arbitrators;
2.3
the Parties agree that there will not be any right of appeal against
the award made by the
arbitration tribunal;
2.4
the arbitration shall reconvene at Port Elizabeth on a date to be
agreed, failing agreement
on a date to be determined by the
arbitration tribunal; and
2.5
the arbitration tribunal shall determine the procedure to be adopted
for the hearing.”
[19]
The issues identified in paragraph B1 of the arbitration agreement
were determined by the Arbitration Tribunal on 11 August
2014.
The Arbitration Tribunal made the following award:
“
1.
The Claimants are entitled to a correction of the Award by the
addition
of the words ‘plus 2%’ after the words ‘Sale
Agreement’ in paragraph 125(1) thereof.
2.
The Respondent is entitled to a correction of paragraph 125(1)
of the
Award by the substitution of the figure ‘R8 434 579.17’
with the figure ‘R4 803 558.89’
and the
substitution of the words ‘thereon from 6 May 2008’ with
the words ‘on the amount of R4 516 729.89
from 31
March 2004’.
3.
Interest on the component parts or the whole of the claim in
reconvention runs from 10 June 2004 at the legally prescribed rate of
interest being 15.5%.
4.
The costs of the Claimant’s exception and objection to
the
Respondent’s amendment to the counterclaim are to be paid by
the Claimant on the scale as between attorney and own client.
5.
(a) The Claimants are awarded their costs,
on
the scale as between attorney and own client, in respect of their
claim in the first arbitration.
(b) The
Respondent is awarded its costs, on the scale as between attorney and
own client, in respect of
its counterclaim in the first arbitration.
6.
No costs order is made in respect of the proceedings before us.”
[20]
After this award, on 23 September 2014 the respondent paid the
applicants the amount it calculated was owing by it, basing
its
calculation on set off of its counterclaim against the claim having
taken place on 28 May 2008, and set off of costs awards
in its favour
which costs were taxed in 2012 and 2013. It included in its
calculation interest on the claim and the counterclaim.
As a
result of an error in its calculation, after the payment the
respondent still owed a further amount which it undertook to
pay on
or before 11 March 2016.
DISCUSSION
[21]
The dispute between the parties essentially concerned the date when
set off of the respondent’s counterclaim against
the
applicants’ claim occurred. The date was significant
because of the higher rate of interest running on the claim
than that
running on the counterclaim. The respondent accepted that its
defence of set off as at 31 March 2004 could not
have succeeded
because its claims were illiquid. It however contended that set
off of the counterclaim against the claim
as a matter of law had
occurred on 28 May 2008. The Arbitrator had finally determined
three of the claims on 28 May 2008.
The Appeal Tribunal had
increased the amount proved in one of those claims. The effect
of that increase substituted the Arbitrator’s
determination as
at 28 May 2008. Reliance was placed on the judgment in
General
Accident Versekeringsmaatskappy Suid-Afrika Bpk v Bailey NO
1988
(4) SA 353
(A). I quote from the English headnote as follows:
“
A judgment debt is payable on
the day upon which the trial Court hands down its judgment,
irrespective of whether the judgment is
substituted or amended on
appeal, so that the eventual judgment debt is only determined on
appeal. Where an appeal against
a judgment succeeds and the
amount of the judgment debt is altered, there is no question of a new
judgment, but of an amended judgment
which the trial Court should
have given and such judgment is of force and effect retrospectively
to the date of the trial Court’s
judgment.”
[22]
These three claims, so it was submitted, therefore became liquidated
on 28 May 2008 and set off of those claims against the
applicant’s
claim occurred on that date.
[23]
With regard to the claims for tool rework and obsolete stock, it was
submitted on behalf of the respondent that the admission
in the 2013
arbitration agreement of the amount of these claims (R303 303.00)
was a formal admission of the merits of these
claims. This
admission related to a dispute which the Arbitrator ought to have
determined but was no longer required to do
so. The admission
therefore was to be considered as taking effect on 28 May 2008, even
though it was made at a later date.
With regard to the
principle expressed in
Bailey
(
supra
)
it was submitted that the position should be the same where a matter
is remitted to the court
a
quo
for
determination and the court makes such determination. It would
not be fair for an appellant to lose the advantage of
this principle
merely because the appellate court was unable to substitute the
decision of the court
a
quo
with
its own. This submission was taken further to the effect that
the position should also be the same if, subsequent to
a remittal, a
defendant or respondent admits a claim. If it were not, a
claimant would be obliged to refuse to accept an
admission in order
to avoid losing the benefit of the claim being determined with effect
from the date of the original decision.
This would result in
unfairness to a claimant and would not be in the interests of justice
in that it would discourage settlement
of matters where there is no
real dispute.
[24]
Further with regard to the date on which the respondent’s
claims were liquidated, it was submitted that each claim constituted
a separate cause of action. They involved breaches of different
warranties, different
facta
probanda
,
and a decision on one or more claims would not found a defence of
res
judicata
if grounds for a further claim for breach of a particular warranty
were discovered at a later date.
[25]
The applicants’ stance was that set off only occurred on 7
October 2013, when the final amount of the counterclaim was
determined. It was submitted that set off only applied if there
had been an award or an agreement on the counterclaim.
The
effect of the decision of the Appeal Tribunal was that the total
amount of the counterclaim was still to be determined.
The
Appeal Tribunal did not make a partial award and considered the
counterclaim to be one claim. Reference was made to the
respondent’s notice of appeal where it was prayed in the
alternative that the Arbitrator’s award be set aside and
substituted with an award upholding the claimants’ claim and
the respondent’s counterclaim in the sum of R4 104 953.24.
If the respondent had achieved that relief on appeal, so it was
submitted, it would have had a liquidated counterclaim. The
first time the respondent had an award was on 7 October 2013 which
was when the counterclaim was finally liquidated. There
was
nothing in the arbitration agreement of 7 October 2013 to suggest
that the parties agreed that the award was retrospective.
Paragraphs 4 and 5 of the agreement were couched in the present
tense.
[26]
With regard to the submission that the counterclaim consisted of
separate causes of action, it was submitted that the cause
of action
was the claim for an indemnity. This was how the counterclaim
was pleaded.
[27]
I think that it is important that although the Arbitrator and the
Appeal Tribunal did not expressly make awards on the counterclaim,
their determinations of the various claimed losses remained in place
and, together with the admitted amount of R303 303.00,
made up
the amount on which interest was granted by the Arbitration Tribunal
in 2014. The date from which interest was to
run, 10 June 2004,
was, according to the Arbitration Tribunal, the date of the
counterclaim. Had the Arbitrator ruled in
the respondent’s
favour on the question of notice, the respondent would have led
evidence on all the losses it alleged it
had suffered, and an award
would have been made on the counterclaim, which at that stage would
have been set off against the claim.
This was not a case of
judgment on a claim being stayed pending a decision on a
counterclaim. The claim and the counterclaim
were heard and
were to be decided upon at the same arbitration proceedings.
[28]
Going further, if the claims which the Arbitrator and the Appeal
Tribunal found had been proved, were separate causes of action,
then
set off of those claims would have occurred as at 28 May 2008.
This follows from the finding of the Appeal Tribunal
that the
arbitrator erred in finding that notice was required. If he had
not so found, he would have upheld those claims.
In my view the
respondent’s claims for the six breaches of warranties were
separate causes of action. They involved
different warranties
each breached in a particular and different manner. The short
précis of each claim contained
in paragraph [6] above,
indicates the different
facta probanda
involved in each
claim. Support for my view is to be found in
Samancor Chrome
Ltd v Rham Equipment (Pty) Ltd
[2014] ZASCA 66
(19 May 2014)
where Lewis JA said at para [14]:
“
There
is no reason why there cannot be separate and distinct claims arising
from a single contract. Indeed such claims are commonplace.
A
contract may give rise to multiple obligations and a breach of two or
more may give rise to different causes of action and thus
different
debts.”
[29]
If the respondent’s claims constituted different debts then the
time that they became liquidated was the time that set
off took
place. The claims which the Arbitrator determined, as increased
on appeal in one respect, were effectively determined
on 28 May 2008.
[30]
With regard to the applicant’s submission that there was a
single cause of action, namely the claim for an indemnity,
it is so
that the relief claimed in the main in the counterclaim was that the
applicants indemnify the respondent in the total
amount of
R5 398 394.91. However in its prayer for the
indemnity, the respondent specifically prayed that the applicants
indemnified it in respect of the losses it had suffered as referred
to in paragraphs 9 and 10 of the claim in reconvention.
Paragraph 9 of the claim in reconvention was a repetition of the
allegations set out in paragraphs 3.3.1 to 3.9 of the respondent’s
statement of defence. These paragraphs dealt separately with
each alleged breach. Further in my view the indemnity
clause
envisaged breaches of different warranties, each requiring its own
indemnity. I therefore do not think that the claim
for an
indemnity in the total amount detracts from the position that the
claims were separate causes of action.
[31]
The claims for tool rework and obsolete stock require a somewhat
approach with regard to the date they became liquidated.
The
Appeal Tribunal could make no decision on the
quantum
of these claims because no evidence had been led. The
Arbitrator’s decision not to allow those claims to proceed was
reversed on appeal. The intention of the Appeal
Tribunal was that they be determined by the Arbitrator.
However
this did not happen because the parties concluded the October 2013
agreement. If the Arbitrator had decided these
two claims, such
a decision would in my view, applying the
Bailey
principle, have been the decision he should have given when he made
the award, on 28 May 2008. It would have been unfair
if the
date those claims became liquidated was a later date, merely because
the Arbitrator had originally erred.
[32]
In my view the same result should occur when the order of the Appeal
Tribunal was not carried out and the applicants admitted
the claims
in a quantified amount. That admission substituted the decision
the Arbitrator would have made had he been called
upon to do so, and
the decision he should have made on 28 May 2008. The applicants
admitted that the respondent had suffered
a loss in that amount.
It was not necessary for the respondent to prove that amount. I
do not think it was going too
far to submit, as counsel for the
respondent did, that this amounted to a formal admission of the
merits of the claim. The
admission must be seen in the context
of the Appeal Tribunal’s order that the Arbitrator was to
adjudicate the two outstanding
claims. Again, it would be
unfair if the respondent, who had had to wait all this time for a
final determination of the outstanding
claims, was denied the
advantage of an earlier liquidation of these claims because the
Arbitrator erred.
[33]
In my view therefore, the respondent’s claims, which were
separate causes of action, were liquidated on 28 May 2008 and
fell to
be set off against the applicants’ claim as at that date.
[34]
I do not think that the wording of the October 2013 agreement changed
this legal position. If set off took place at the
time the
respondent’s claims were liquidated and effectively awarded,
then there was no need to mention it in the agreement
or expressly to
record that the award on the counterclaim was retrospective.
[35]
It was submitted on behalf of the applicants that the respondent was
suggesting that this court had a discretion to revisit
the award made
by the Arbitrator. I do not agree. The respondent
accepted that the award was made and that it stood.
Its
opposition was based on set off and payment. As was submitted
on behalf of the respondent, the issue was one of law,
namely the
legal consequences of the Arbitrator’s award and the award of
the Appeal Tribunal and whether or not the respondent’s
claims
were separate causes of action. The applicants seek enforcement
of the award and the respondent contends that there
is nothing to
enforce. I am satisfied, for the reasons given above, that the
respondent’s contention is correct.
[36]
The application is dismissed with costs, such costs to include the
costs of two counsel.
_______________
J
M ROBERSON
JUDGE
OF THE HIGH COURT
Appearances:
For
the ApplicantS: Adv R G Buchanan SC, instructed by Rushmere
Noach Incorporated, Port Elizabeth
For
the Respondent: Adv J Blou SC with Adv MA Wesley, instructed by
Burman Katz, Port Elizabeth
[1]
Clause 18 was the non-waiver clause
[2]
The amounts claimed in the counterclaim for these two claims were
R457 102.58 and R149 236.13 respectively.