Bantry Construction Services (Pty) Ltd v Raydin Investments (Pty) Ltd (128/08) [2009] ZASCA 10; 2009 (3) SA 533 (SCA) ; [2009] 3 All SA 1 (SCA) (17 March 2009)

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Bantry Construction Services (Pty) Ltd v Raydin Investments (Pty) Ltd (128/08) [2009] ZASCA 10; 2009 (3) SA 533 (SCA) ; [2009] 3 All SA 1 (SCA) (17 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 128 / 08
BANTRY
CONSTRUCTION SERVICES (PTY) LTD Appellant
and
RAYDIN
INVESTMENTS (PTY) LTD Respondent
___________________________________________________________________
Neutral citation:
Bantry Construction Services v Raydin
Investments (128/08)
[2009] ZASCA 10
(17 March 2009)
CORAM:
HARMS DP, BRAND, PONNAN, SNYDERS and MHLANTLA JJA
HEARD:
26 FEBRUARY 2009
DELIVERED:
17 March 2009
SUMMARY: Arbitration – application for award to be made order of
court - failure to counter-apply to review award – consequences

thereof
.
___________________________________________________________________
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
The Johannesburg High
Court, Witwatersrand Local Division (Goldstein J sitting as court
of first instance).
The appeal is dismissed with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA
(Harms DP, Brand, Snyders and Mhlantla JJA
concurring):
[1] During March 2004, the first respondent,
Raydin Investments (Pty) Ltd ('Raydin'), entered into a written
principal building
agreement with the appellant, Bantry Construction
Services (Pty) Ltd ('Bantry'), in terms whereof it employed the
latter to erect
a new factory and offices for it on premises situated
in Linbro Park, Johannesburg.
[2] After completion of the work and the issuance
of the architect's final certificate dated 7 December 2004, cracks
developed in
the plaster work and floor toppings of the new
buildings. During August 2005, Raydin wrote to Bantry, formally
informing it of
the existence of the cracks and notifying it that an
independent contractor had been secured who had expressed the opinion
' ...
that the majority of the cracks are related to poor
construction'. The response from Bantry was that ' ... it is quite
normal for
new buildings to experience shrinkage and settlement
cracks'. Bantry's letter continued ' ... we do not accept the
allegations
of "poor construction" '. The battle lines thus
came to be drawn between the parties, rendering applicable Clause
40.0
of the agreement, headed ‘Settlement of Disagreements and
Disputes’. To the extent here relevant, this clause provides:
'
40.1 Should
there be any disagreement between the
employer
or his
agents
on the one hand and the
contractor
on the other arising out of or concerning this
agreement
,
the
contractor
may request the
principal
agent
to determine such disagreement by a written decision to both parties.
On submission of such a request a disagreement in respect
of the the
issues detailed therein shall be deemed to exist
40.2 The
principal
agent
shall give a
decision specifically in terms of 40.1 to the
employer
and the
contractor
within ten (10)
working
days
of receipt of such a request. Such decision shall be final and
binding on the parties unless either party disputes the same in
terms
of 40.3
40.3 Where there is no
principal
agent
or should the
principal
agent
fail to give a written decision within ten (10)
working
days
or either party disputes the decision in terms of 40.2 by notice to
the other and the
principal
agent
within ten (10)
working
days
of receipt thereof a dispute shall be deemed to exist
40.4 A dispute shall be submitted to:
40.4.1 Arbitration in terms of 40.6
or, where the parties so agree, to mediation in terms of 40.5
…
40.6 Where the dispute is submitted to arbitration:
40.6.1 The arbitration shall be
conducted according to the rules stated in the
schedule
40.6.2 The
arbitrator
shall be the person appointed by the parties in the
schedule
or within ten (10)
working
days
of the date of submission of the dispute to arbitration. Where the
parties make no such appointment the
arbitrator
shall be appointed by the [Chairman of the Association of
Arbitrators]
40.6.3 The
arbitrator
shall have the power to open or revise any certificate, opinion,
decision, requisition or notice relating to such dispute as if
no
such certificate, opinion, decision, requisition or notice had been
issued or given
40.6.4 The parties, unless otherwise
agreed, shall request the
arbitrator
to give a reasoned award
…
'
[3] A
disagreement thus
having arisen in respect of the work performed by Bantry, it was
first referred by the parties to the principal
agent, the architect
of the building project, Roger Davies, on 6 December 2005. On 8
December 2005, Davies recommended that Bantry
agree that the cracks
were unacceptable and that it undertake remedial work. He added
somewhat prophetically: 'we further request
the parties reach
resolution and avoid unnecessary litigation'. Bantry, however,
through Michael Wagner, its attorney of record,
disputed the
principal agent's findings and formally declared a dispute to exist.
The parties accordingly agreed that the dispute
be referred to
arbitration. Victor Booth, an engineer, who was cited as the second
respondent in the court below but who took no
part in the proceedings
either in the court below or in this court, was duly appointed
arbitrator by the Chairman of the Association
of Arbitrators. On 18
April 2006, the arbitrator convened what was termed the first
preliminary meeting with the parties. At this
meeting the parties
agreed, as emerges from the arbitrator's award, that the summary
rules of the Association would be applicable
to their arbitration.
[4] On 19 May 2006, Raydin filed its Statement of
Claim and on 1 June 2006 Bantry filed its Statement of Defence. A
second preliminary
meeting was held on 7 July 2006 and, a week later,
the arbitrator despatched to the parties a minute recording inter
alia the following:
'It was agreed that following this inspection and my
having taken full cognisance of the experts' comments, as previously
written,
I would then be able to use my own knowledge and technical
expertise to decide upon the matter without the expense of a formal
hearing.
It was agreed that there would be no right of appeal on
my award.
Evidence,
per
se
, will not be led
at the
in loco
inspection beyond what is already embodied in the existing written
reports. However, if, after the
in
loco
inspection,
the parties' respective experts wish to add anything further to their
previous written statements and/or to confirm
anything that may have
been said on site and to lead such statements as additional evidence,
I will allow 5 working days for a
further such written submission
from each.
The time limits for the award protocol will follow the
recommendations in the "Rules" of the Association of
Arbitrators.
Viz. my award will be published within 20 working days
after the last evidence was received.'
[5] On 27 July 2006, an
in
loco
inspection was held. Thereafter
the arbitrator sought and obtained a report from the project
engineer. He also requested certain
drawings. On 6 September 2006 the
arbitrator received the requested drawings and on 14 September 2006
he wrote to both attorneys:
‘
I have not yet had the
opportunity to look at the documents as the delay has put many other
items on my day agenda and I have been
out of town a great deal. I am
sure that copies of what I have received will be made available to
all concerned. In the interests
of the fairness of the procedure I
believe that I should wait for all to be in possession of these same
documents before I proceed.
'
Thereafter correspondence was exchanged
regarding the quality of some of the drawings. On 28 November 2006,
the arbitrator despatched a letter to the parties stating 'I
have
some questions to be answered if we are to resolve this before
06-12-2006 after which I am away for four weeks'.
[6] In the meanwhile, during December 2006,
certain remedial work was undertaken at the premises. Thereafter and
in response to
a request from the arbitrator, the architect submitted
a report in which he opined that 'the cause of the cracks and defects
were
not as a result of the absence of detail . . ., but as a direct
result of the failure by the contractor to carry out the construction

in a proper manner and the improper use of materials and defective
materials in the construction'. The architect added:
'
The
photographs taken when repairs were effected clearly illustrate
defective construction relating to the brickwork and plastering.
Any
reasonable contractor would agree that it is poor common brickwork
when over a small area plaster thickness vary from 15mm
to 40mm and
brickwork joints vary from 6mm to 50mm. My concern is that the
Contractor made no effort to investigate the problems
when first
highlighted.... we note that it is neither a large nor a complicated
building.'
[7] That report elicited the following response from Bantry's
attorney:
'We are of the view that [the
architect's] response, seen as a whole, does not provide any
evidence
, aside from
speculation on his part, that the cracks were due to latent defects
for which our client is liable.'
On 8 January 2007, the arbitrator wrote 'I'm sure
that we would all like to bring this to a conclusion and await the
info previously
requested'. In correspondence addressed to the
arbitrator dated 16 February 2007, Raydin's attorney
,
Alec Drobis, wrote: 'I trust that you are now in possession of what
you have called for in order to render your decision'. On
19 March
2007, Drobis once again enquired when the arbitrator would be in a
position to let them have his determination. On 28
March 2007, the
arbitrator requested Raydin to fully and formally quantify the claim.
In response Raydin filed a damages affidavit
on 8 May 2007. Two days
later, Wagener wrote to the arbitrator suggesting that he make his
award in the following two stages:
first, whether Bantry was liable
at all and, if so, for which cracks. Once an award of that nature was
made, so the e-mail continued,
Bantry would be in a position to
provide its reasoned estimate of the cost of repairing the defects
set out in the award.
[8] On 31 May 2007, the arbitrator, in an e-mail
to both parties, stated:
'I AM SURE THAT BOTH PARTIES NOW WANT CLOSURE ASAP.
I WOULD LIKE THE OPPORTUNITY TO NOW
VIEW THE REMEDIAL WORK AND BE FULLY INFORMED AS TO EXACTLY WHAT WORK
WAS DONE AND WHERE. PLEASE
ADVISE WHO I CAN MEET AT THE PREMISES WITH
TIME AND DATE. MAYBE THE APPROPRIATE PERSON COULD CONTACT ME DIRECTLY
TO ARRANGE THIS.
I WILL THEN HAVE A 21 WORKING DAYS TO DELIBERATE AND
PRESENT MY AWARD.'
With referen
ce to that
e-mail, the arbitrator wrote on 4 June 2007:
'I HAVE NOT RECEIVED THE PARTIES'
CONFIRMATION AS REQUESTED. HOWEVER MR MIDGIN
[the
Chief Executive Officer of Raydin] RANG ME ON 01-06-2007 AND SAID
THAT HE WOULD SHOW THE REMEDIAL WORK TO ME.
DOES [BANTRY] WISH TO BE REPRESENTED AT THE ASSESSMENT?
PLEASE ADVISE ASAP SO THAT I CAN ARRANGE A TIME AND DATE
TO MEET MR MIDGIN ETC'.
[9] Wagener responded that his
client did indeed wish to be represented at the inspection and
furnished the arbitrator with the contact details of a certain Bob

Wagener. He furthermore drew attention to his earlier e-mail (which
had apparently gone unanswered) that had suggested that the

arbitrator's award should be made in two stages. He then proceeded to
articulate what he described as three concerns that had been
raised
by his client. Those were:
'1 The inordinate length of time
it
has taken to obtain an Award.
2 The fact that you appear to be communicating directly
with Mr Midgin. My client would like the assurance from you that
there
are no current or prior dealings between you and Mr Midgin.
3 Your expressed desire to view the
remedial work already carried out appears to be an indication that
you have already decided
that my client is liable for the cracks.'
[10] The next morning, the arbitrator apologised
for the oversight in not replying to the e-mail in question. He
recorded that he
had noted the suggestion that the arbitration award
be made in two stages. Some 40 minutes later he replied to the three
concerns
thus:
'1 The inordinate length of time it has taken to obtain
an Award;
IT IS MY RECOLLECTION THAT THE TIME FRAME HAS,
GENERALLY, NOT BEEN DETERMINED BY ME BUT BY THE LONG RESPONSE TIMES
OF THE PARTIES
TO VARIOUS ISSUES.
THE HISTORICAL CHAIN OF CORRESPONDENCE SHOULD BEAR
TESTIMONY TO THAT.
2 The fact that you appear to be communicating directly
with Mr Midgin. My client would like the assurance from you that
there are
no current or prior dealings between you and Mr Midgin.
I HAVE HAD ONE BRIEF PHONE
CONVERSATION FROM MR. MIDGIN WHEREIN HE REQUESTED THAT HE COULD BE
THE PERSON TO SHOW THE REMEDIAL WORK
TO ME. I IMMEDIATELY SENT AN
EMAIL TO THE PARTIES ADVISING THEM OF THIS REQUEST AND CONFIRMATION
OF A REPRESENTATIVE FROM THE OTHER
SIDE.
I WILL BE CONTACTING BOTH MR. MIDGIN
AND MR. BOB WAGENER EARLY NEXT WEEK. PLEASE LET ME HAVE MR. WAGENER'S
EMAIL ADDRESS SO THAT,
AS I HAVE DONE IN THE PAST, I CAN COPY
EVERBODY WITH THE COMMUNICATIONS. IT IS UNFORTUNATE THAT MR. MIDGIN'S
PHONE CALL TO ME IS
BEING CONSTRUED IN A SINISTER LIGHT.
I DID ASSUME THAT HE HAD HIS
ATTORNEY'S PERMISSION TO DO THIS AND THAT IT HAD BEEN CLEARED WITH
YOURSELVES IN AN ATTEMPT TO NOW
SPEED THINGS ALONG.
I HAVE NEVER MET MR. MIDGIN, HAVE NO KNOWLEDGE OF HIM
AND I HAVE NEVER SPOKEN TO HIM BEFORE IN MY LIFE.
3 Your expressed desire to view the remedial work
already carried out appears to be an indication that you have already
decided
that my client is liable for the cracks.
SURELY, MY WISH TO SEE THE REPAIR
WORK SHOULD BE CONSIDERED AS A NORMAL ACTIVITY IN THE WHOLE CHAIN OF
EVENTS AND NOT DOING SO WOULD
PROBABLY ATTRACT CRITICISM. I CAN
ASSURE YOU THAT I HAVE NOT MADE ANY DECISION ON LIABILTY AND, AFTER
MUCH ELAPSED TIME, I WILL
REFAMILIARISE MYSELF WITH ALL ASPECTS OF
THE DISPUTE BEFORE MAKING ANY DETERMINATION.'
Th
at afternoon, Wagener
wrote in an e-mail to the arbitrator: 'Having gone through our
records we note that you have conducted an
inspection
in
loco
on 27
July 2006. Kindly provide us with a report on that visit as well as a
fresh report on your proposed 2nd visit to the site'.
That elicited
the following response: 'Arbitrators don't write reports. They
consider the evidence and, using their expertise,
when given
permission to do so (as is the case here), and a judgment, make a
reasoned award.'
[11] On 8 June 2007, Wagener wrote to the arbitrator:
'I regret to inform you that you
r
reply to my e-mail of 7 June 2007 is in conflict with both Rule
31.1.4 of the Rules for the Conduct of Arbitrations promulgated
by
the Association of Arbitrators (Southern Africa) as well as the
common law. Insofar as you have exceeded the time limit contained
in
s 23 of the Arbitration Act for making your award by a substantial
margin, the arbitration has lapsed.'
I
n response, on 13 June
2007, the arbitrator wrote to the parties:
'
Rules
for the conduct of arbitrations
Rule 31.1.4 states that, "the arbitrator shall
record his observations ……….. in such a manner as he may decide
and such
record ……….. shall form part of the proceedings of the
arbitration".
This is not to be construed as him having to supply a
"report" to the parties.
Arbitrations Act No. 42 (1965)
Clause 13 (1)
"the appointment of an arbitrator ……….. shall
not be capable of being terminated except by the consent of all the
parties."
Should the claimant also wish to dispense with my
services then this clause may be invoked.
Clause 13 (2)(a)
Upon application the court may set aside my appointment
"on good cause shown".
However, due to the protracted series of events caused
by the parties' own delays in providing certain documents etc. the
court
would probably not consider this to be "on good cause
shown".
Furthermore, I refer you to clause 40.2 of the "Rules"
which requires any objection to be lodged promptly or the right
to
object will be considered as waived. There are many aspects of this
arbitration which tacitly fall into this category.
Clause 23
My e-mail to the parties dated 31
st
May, 2007 is relevant.
Both parties have communicated freely
for many months until the 6
th
June 2007 and tacitly accepted the content of my e-mail dated 31
st
May, 2007 which stated that I would deliver my award 21 days after my
final inspection, once that had been arranged. I refer you
to M.
Wagener's email dated 4
th
June and Drobis's e-mail dated 6
th
June.
The inspection is now delayed due to
the respondent's recent dissatisfaction and this issue must be
resolved before I can continue.
Both parties to now advise me to continue or otherwise.'
[12] The arbitrator's letter prompted the
following missive from Wagener:
'We regret to record that our client is dissatisfied
with your conduct of the arbitration on a number of grounds including
your
failure to provide us with an account of your findings with
regard to the first inspection carried out by you.
We record further that, to date, you have not responded
to our request to have the proceedings decided in two stages, i.e.
liability
and quantum.
We are of the respectful view that the provisions of
section 23 of the Arbitration Act are peremptory and override the
rules to
which you refer in your letter.
In the circumstances, our client maintains its position
that the arbitration has lapsed and can only be revived by the court
on
good cause shown.
Our client will oppose any such application to the
court.'
[13] Unbowed, the arbitrator asserted:
'AD PARA 2
I reiterate my e-mail response to you
of 07-06-2007 that Arbitrators do not write reports but that their
observations at an
in
loco
inspection
will be taken into account in the award.
AD PARA 3
I did respond to this in my other e-mail dated
07-06-2007 and advised you that "your suggestion is noted".
AD PARA 4
Both parties agreed, voluntarily, to enter into the
arbitration procedure and to be governed by the rules and that the
summary rules
will apply. I REITERATE THAT THE AMOUNT OF ELAPSED TIME
HAS BEEN CAUSED BY THE PARTIES TO THE DISPUTE AND ONCE AGAIN REFER
YOU
TO RULE 40.2 WHEREBY ANY PARTY WAIVES ITS RIGHT TO ANY OBJECTION
ON PROVISIONS IF NOT DONE SO PROMPTLY.
I WILL NOW BE AWAY UNTIL 2
ND
JULY 2007 AT WHICH TIME I WILL DETERMINE THE EARLIEST MUTUALLY
ACCEPTABLE TIME AND DATE FOR MY INSPECTION OF THE REMEDIAL WORK.
DUE
TO THE DELAY IN THE PROCEEDINGS OF THE PAST 10 DAYS CAUSED BY THE
RESPONDENT'S RECALCITRANCE TO PROCEED AND THE OBJECTIONS
THERETO,
WHICH I HAVE HAD TO DEAL WITH, I WILL THEN CONTINUE WITH OR WITHOUT
THE RESPONDENT'S ATTENDANCE.
BOTH PARTIES ARE HEREBY GIVEN DUE
NOTICE OF THIS
.'
[14] On 19 June 2007, Wagener wrote to Dobris that
neither he nor the arbitrator had dealt with the provisions of s 23
of the Arbitration
Act, which were, according to him, peremptory. He
reiterated that the arbitration had lapsed, which required a formal
application
to court for it to be revived. He concluded 'Our client
will not be taking further part in the arbitration and you proceed at
your
own risk'. On 6 July 2007, the arbitrator visited the premises
to examine the remedial work. That effectively being the last piece

of evidence considered by him in the conduct of the arbitration, the
arbitrator then handed down his award 20 days later on 3 August
2007.
He found for Raydin and ordered Bantry to pay damages in the sum of
R124 900, plus 50% of the arbitration costs, plus VAT,
plus interest
from 3 August 2007.
[15] As the award remained unsatisfied, Raydin
approached the High Court (Johannesburg) for the arbitrator's award
to be made an
order of court in terms of s 31(1) of the Arbitration
Act.
1
Bantry opposed the relief sought. It filed an affidavit of some six
pages in answer. Much of what was contained in Raydin's founding

affidavit was not responded to, much less challenged or disputed.
Instead, Bantry contented itself with a recital of the correspondence

exchanged during the arbitration process.
[16
] The gist of its
opposition is to be found in the following four brief paragraphs
under the heading ‘Gross Irregularities or
Misconduct on behalf of
the [Arbitrator]’ (my numbering):
'(i)
. The
second respondent failed to provide the parties with information
regarding his observations during inspections in loco on
27 July 2006
and 6 July 2007.
(ii)
. He
committed a gross irregularity in that he failed to identify the
cracks for which the first respondent was liable and secondly
to give
the first respondent an opportunity to tender evidence on the
reasonable cost of repairing such cracks.
(iii)
. He
continued with the arbitration after it had lapsed.
(iv)
. He
was not empowered to make the arbitrary financial adjustments
contained in his award. Rather he was required to identify the
cracks
and to apportion liability on a rational basis.'
The affidavit then concludes:
'In the premises it is respectfully submitted that the
application to have the award made an order of court should be set
aside
with costs.'
[17
] In its replying
affidavit, Raydin took issue with Bantry's failure to launch a
counter-application to review and set aside the
arbitrator's award.
Only then did Bantry file a counter-application that the award of the
arbitrator be set aside, supported by
a three page affidavit
described as ‘an affidavit in support of [an] application for
condonation’. With reference to the final
paragraph of its earlier
answering affidavit, the later affidavit states: 'It would have been
clear that . . . [Bantry] was in
fact applying to have the award of
[the arbitrator] set aside and not the "application" '. It
continued 'All the grounds
on which [Bantry] relies to set aside the
[arbitrator's] award are set out in my answering affidavit.' Bantry
accordingly submitted
that the 'answering affidavit is in the form of
a counter-application'.
[18] Goldstein J granted the relief sought in the
main application. In his judgment he made no reference whatsoever to
the counter-application
or the condonation that was sought by Bantry
in respect of its failure to timeously launch the
counter-application.
[
19] I have set out the
factual matrix in greater detail than is absolutely necessary because
it illustrates, the extent to which
Bantry’s case appeared to shift
with the passage of time. Moreover, as is readily apparent, the four
principal contentions advanced
in opposition in the court below, of
which only the first and fourth were pressed on appeal, amounted to
no more than conclusions
that were devoid of any factual foundation.
[20] I will nonetheless very briefly consider each
of the two contentions advanced before us on behalf of Bantry. As set
out in
its heads of argument, they are:
(a)
‘The
arbitrator refused to make known to the parties the evidence obtained
at the two inspections in loco prior to his award.
This evidence
relates to what was seen by the arbitrator and what was said by the
experts nominated by the parties who accompanied
him on his
inspection’:
There is nothing in the arbitrator’s award to
suggest that he did in fact rely on any relevant information secured
during the
inspections, as opposed to information gleaned from other
sources such as the reports that had been furnished to him by the
parties.
That much is made plain by the
arbitrator in the introductory comments of his award where he states:
‘It is my duty to present
my award based on the written and oral
evidence provided by the parties and their representatives … It
must also be recorded
that it was agreed that I could use my own
technical expertise in arriving at my conclusions and my award’.
After all, it was
for Bantry to show that the arbitrator had seen
something at the inspection that he had relied upon in determining
the dispute
between the parties. That it had failed to do.
(b)
‘In
assessing the quantum of the claim he acted on caprice and failed to
apply his mind to the facts’:
No
evidence whatsoever
has been adduced in support of the contention that the arbitrator had
acted capriciously. Quite the contrary,
Mr Wagener conceded quite
candidly that the award was a properly reasoned one. Instead we were
asked to infer capriciousness by
virtue of the following: Raydin had
submitted a damages affidavit alleging that the fair and reasonable
cost of repairing the cracks
was R149 900. From that figure the
arbitrator had deducted and then added back certain amounts. In so
doing, so the argument
went, the arbitrator had exceeded his mandate
and had acted arbitrarily. But that could hardly be so. In his award
the arbitrator
stated: ‘I find the rates quoted for the repair work
[R149 900] not to be unreasonable’. Quite clearly that
determination
fell within his mandate and, were he to have ended
there, there would have been no cause for complaint. That being so,
as the subsequent
deduction and adding back operated to benefit
rather than prejudice Bantry, it could hardly - from its perspective
– be labelled
capricious.
[21] The legal principles applicable to an enquiry
of this kind were recently set out by Harms JA on behalf of this
court.
2
It is not necessary to recapitulate those principles. Suffice it to
state that once again a litigant has fundamentally misconceived
the
nature of its relief. The parties here had waived the right to have
their dispute re-litigated or reconsidered. Given the nature
of
Bantry’s opposition, it was for it to challenge the award by
invoking the statutory review provisions of s 33(1) of the Act.
It
ill-behoved Bantry to adopt the passive attitude that it did. It
ought instead to have taken the initiative and applied to court
to
have the award set aside within six weeks of the publication of the
award or alternatively to have launched a proper counter-application

for such an order.
3
Had that been done then the arbitrator could have entered the fray
and defended himself against the allegations levelled by Bantry,

instead of it falling to Raydin to do so on his behalf – a most
invidious position for any litigant.
[22] It follows that the learned Judge in the court below cannot be
faulted and in the result the appeal must fail. It is accordingly

dismissed with costs.
____________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: Wagener (Attorney)
Instructed
by:
Bowman
Gilfillan Attorneys
Cape
Town
Matsepe
Inc
Bloemfontein
For
Respondent: A Kemack
Instructed
by:
Drobis
& Associates
Sandton
Naudes
Attorneys
Bloemfontein
1
Act 42 of 1965.
2
Telcordia Technologies Inc v Telkom Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA); see also
Lufuno Mphaphuli & Associates (Pty) Ltd v
Andrews and Another
[2007] ZASCA 143
;
2008 (2) SA 448
(SCA).
3
Butler & Finsen
Arbitration in South Africa: Law and Practice
para
7.10.