About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 250
|
|
Agriculture Research Council v NAP Designs (Pty) Ltd and Others (6387/2019) [2021] ZAGPPHC 250 (26 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS
JUDGES: NO
(3)
REVISED
26.4.2021
Case
No: 6387/2019
In
the matter between:
AGRICULTURAL
RESEARCH COUNCIL
APPLICANT
and
NAP
DESIGNS (PTY) LTD
FIRST
RESPONDENT
HILTON
MACDONALD
N.O.
SECOND RESPONDENT
ASSOCIATION OF
ARBITRATORS (SA) NPC
THIRD RESPONDENT
JUDGMENT
BASSON
J
INTRODUCTION
[1]
The applicant (Agricultural Research
Council) seeks an order in terms of which the arbitration award (the
award) made by the second
respondent (the arbitrator) under the
auspices of the third respondent (Association of Arbitrators (SA)
NPC) dated 7 December 2018
is reviewed and set aside.
[2]
In the event that the award is reviewed and set
aside, the applicant seeks an order in terms of which the third
respondent is directed
to appoint an arbitrator other than the
current arbitrator with sufficient legal qualifications and
experience to arbitrate the
dispute between the applicant and the
first respondent afresh. The applicant does not seek a costs
order against the arbitrator.
Only the first respondent, NAP
Designs (Pty) Ltd, (hereafter referred to as the respondent) opposed
the application.
[3]
The respondent in turn sought an order
that the arbitration award be made an order of court in the event the
court dismisses the
review.
THE
LEGAL FRAMEWORK
[4]
The
applicant launched its application to set aside the arbitrator’s
award in terms of section 33 of the Arbitration Act
[1]
(the Act), which reads as follows:
“
33
.
Setting aside of award —
(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.”
[5]
An arbitration award can therefore be set
aside where the arbitrator has misconducted himself in relation to
his duties as arbitrator
or umpire (section 33(1)(a) of the Act); or
where the arbitrator has committed a gross irregularity in the
conduct of the arbitration
in accordance with section 33(1)(b) of the
Act; or where the arbitrator has exceeded his powers (section
33(1)(b) of the Act);
or where the award was improperly obtained
(section 33(1)(c) of the Act).
[6]
The
basis upon which a court will set aside an arbitrator’s award
is a very narrow one. The court in the well-known
case of
Amalgamated
Clothing & Textile Workers Union of SA v Veldspun (Pty)
Ltd
[2]
set out the
legal principles as follows:
“
Before
considering these grounds, it is as well to emphasize that the basis
upon which a court will set aside an arbitrator's award
is a
very narrow one.
The
submission itself declared that the arbitrator's determination 'shall
be final and binding on the parties'. And s 28 of the
Arbitration Act
provides that an arbitrator's award shall -
'be
final and not subject to appeal and each party to the reference shall
abide by and comply with the award in accordance with
its terms'.
It is only
in those cases which fall within the provisions of s 33(1) of the
Arbitration Act that a court is empowered to intervene.
If an
arbitrator exceeds his powers by making a determination outside the
terms of the submission that would be a case falling
under s
33(1)
(b)
.
As to misconduct, it is clear that the word does not extend to
bona
fide
mistakes the arbitrator may make whether as to fact or law. It is
only where a mistake is so gross or manifest that it would be
evidence of misconduct or partiality that a
court
might be moved to vacate an award:
Dickenson
& Brown v Fisher's Executors
1915
AD 166
at
174-81.
It was held in
Donner
v Ehrlich
1928
WLD 159
at 161 that even a gross mistake, unless it establishes
mala
fides
or
partiality, would be insufficient to warrant interference.”
[7]
Once
the parties have selected an arbitrator as the judge of fact and law,
the award is final and conclusive, irrespective of how
erroneous,
factually or legally, the decision was.
[3]
The onus rests on the applicant to prove that the arbitrator
misdirected himself in relation to his duties or committed a
gross
irregularity in the conduct of the arbitration.
[4]
The
Arbitrator misconducted himself in relation to his duties
[8]
An
error does not amount to misconduct unless the mistake was so gross
and manifest that it could not have been made without some
degree of
misconduct or partiality.
[5]
[9]
A
bona
fide
mistake
of either law or of fact cannot be characterised as misconduct.
[6]
The court in
Bester
v Easigas (Pty) Ltd and Another
[7]
found that:
“
In
my opinion, applicant can therefore only succeed on the ground under
consideration if he can show that there was some improper,
mala
fide
conduct on the part of
second respondent in relation to his duties as arbitrator.
Applicant
does not rely on any direct evidence of 'misconduct' (in this sense)
by second respondent. What applicant therefore has
to prove is not
only that second respondent made mistakes, but that these mistakes
were so gross or manifest as to justify the
inference of
mala
fides
on
the part of second respondent. This placed applicant in the difficult
position where he had what was described in
a similar context as
'a hard row to hoe', particularly since 'one does not lightly infer
dereliction of duty and untruthfulness
from a responsible body'
(
per
Holmes
JA in
Johannesburg
Local Road
Transportation
Board and Others v David Morton Transport (Pty)
Ltd
1976
(1) SA 887
(A)
at
895B-F).”
[10]
In
the absence of any direct evidence of misconduct, an applicant will
have to prove, not only that the arbitrator made mistakes,
but that
these mistakes were so gross or manifest as to justify the inference
of
mala
fides
on the part of the arbitrator. This requirement ought to be
considered in light of the fact that “one does not lightly
infer dereliction of duty and truthfulness from a responsible
body”.
[8]
See
Total
Support Management (Pty) Ltd and Another v Diversified Systems (SA)
(Pty) Ltd and Another
:
[9]
“
Proof that the second
respondent misconducted himself in relation to his duties or
committed a gross irregularity in the conduct
of the arbitration is a
prerequisite for setting aside the award. The
onus
rests
upon the appellants in this regard. As appears from the authorities
to which I have referred, the basis on which an
award will be set
aside on the grounds of misconduct is a very narrow one. A gross or
manifest mistake is not
per se
misconduct. G At
best it provides evidence of misconduct (
Dickenson & Brown v
Fisher's Executors (supra
at 176)) which, taken alone or in
conjunction with other considerations, will ultimately have to be
sufficiently compelling
to justify an inference (as the most likely
inference) of what has variously been described as 'wrongful and
improper conduct'
(
Dickenson & Brown v Fisher's Executors
(supra
at 176)), 'dishonesty' and '
mala fides
H or
partiality' (
Donner v Ehrlich (supra
at 160 - 1)) and
'moral turpitude' (
Kolber and Another v Sourcecom Solutions (Pty)
Ltd and Others (supra
at 1108A)).”
[11]
Misconduct
in the required sense will not readily be inferred on the part of an
arbitrator who is a professional of considerable
experience in his
field with a reputation to uphold, merely based on mistakes in the
judgment that could never be described as
gross.
[10]
The
Arbitrator committed a gross irregularity in the conduct of the
arbitration proceedings
[12]
An irregularity relates to the conduct of
the proceedings and not the result thereof. The irregularity
must be such that it
resulted in the applicant not having his or her
case fully and fairly determined with the result that it did not
receive a fair
trial.
[13]
The
court in
Ellis
v Morgan; Ellis v Dessai
[11]
explains:
“
But an irregularity in
proceedings does not mean an incorrect judgment; it refers not to the
result, but to the methods of a trial,
such as, for example, some
high-handed or mistaken action which has prevented the aggrieved
party from having his case fully and
fairly determined.”
[14]
The
question is whether the arbitrator’s conduct during the trail
prevented a fair trial on the issues. If it did prevent
a fair
trial of the issues, then it may amount to a gross irregularity in
the proceedings. The court in
Goldfields
Investment Ltd and Another v City Council of Johannesburg and
Another
[12]
explains:
“
Where the point relates to
the merits of the case, it would be straining the language to
describe it as a gross irregularity or
a denial of a fair trial. One
would say that the magistrate has decided the case fairly but has
gone wrong on the law. But if the
mistake lead to the Court’s
not merely missing or misunderstanding a point of law on the merits
but to its misconceiving
the whole nature of the inquiry, or of its
duties in connection therewith, then it is in accordance with the
ordinary use of language
to say that the losing party has not had a
fair trial.”
[15]
The applicant relies on six grounds for
review. Most of them deal with alleged misconduct committed by
the arbitrator during
the arbitration. Counsel on behalf of the
applicant conceded, when it was put to him that no allegations of
mala fides
were
levelled against the arbitrator in the papers, that the applicant no
longer relies on misconduct as a ground for review.
[16]
It appears from the papers that the main
review ground relied upon by the applicant is the allegation that the
arbitrator misconceived
the jurisdictional boundaries set (most
notably in the pleadings) for the arbitration in that the arbitrator
entertained the Quantity
Surveyor’s Final Account dated 3
October 2016. The applicant submitted therefore that the
arbitration award should
be reviewed and set aside on this ground
alone.
[17]
The
court was referred to
HOS+MED
Medical Aid Scheme v Thebe Ya Bophelo Healthcare Marketing &
Consulting (Pty) Ltd and Others
wherein the
court confirmed the jurisdictional ambit of an arbitrator’s
powers:
[13]
“
[30]
In my view it is clear that the only source of an arbitrator's power
is the arbitration agreement between the parties and an
arbitrator
cannot stray beyond their submission where the parties have expressly
defined and limited the issues, as the parties
have done in this case
to the matters pleaded. Thus the arbitrator, and therefore also
the appeal tribunal, had no jurisdiction
to decide a matter not
pleaded. Hosmed's rejoinder put in issue Thebe's allegation
that there had been compliance with s
228. Had Hosmed intended to
rely on the principle of unanimous assent it would have had to plead
it specifically because it amounts
to a classic confession and
avoidance. There is a fundamental difference between a denial (where
allegations of the other
party are put in issue) and a confession and
avoidance where an allegation is accepted, but the other party makes
an allegation
which neutralises its effect - which is what the
raising of unanimous assent would seek to achieve. It is of
course possible
for parties in an arbitration to amend the terms of
the reference by agreement, even possibly by one concluded
tacitly, or
by conduct, but no such agreement that the pleadings were
not the only basis of the submission can be found in the record in
this
case, and Thebe strenuously denied any agreement to depart from
the pleadings.”
[18]
Similarly
in
Telcordia
Technologies Inc v Telkom SA Ltd
:
[14]
“
[65] Corbett CJ was at
pains to draw a distinction between common-law reviews and those
based on statute (such as the present) and
to state expressly that
the quoted rule (and the others mentioned by him) applies to the
former. Apart from the fact that I do
not believe that he intended to
propound a rule applicable to consensual arbitrations, the rule
would in any event prevent
the review of material errors of law
because the arbitrator was, subject to the limitations in the Act,
intended to have exclusive
jurisdiction over questions of fact and
law. That follows from the provisions of the Act, which exclude
appeals and limit reviews.
The fact that a court may be approached to
decide a question of law under s 20 does not affect this conclusion.
If s 20 were used,
a review or appeal for an error of law is not
possible because, once again, the opinion of the court (of first
instance) and even
that of counsel (learned or otherwise) is final. A
statutory provision such as that contained in s 28, that unless the
arbitration
agreement provides otherwise, an award is, subject to the
provisions of the Act, final and not subject to appeal, and that each
party to the reference must abide by and comply with the award in
accordance with its terms, clearly indicates that the Legislature
intended the arbitral tribunal to have exclusive authority to decide
whatever questions were submitted to it, including any question
of
law. That is what the parties agreed. This does not imply that the
arbitrator has the exclusive right to decide the scope of
his
jurisdiction because if he exceeds his powers the award is reviewable
on that ground.”
THE
FACTS
[19]
The applicant appointed the respondent to
implement its project for the improvement of its security measures at
its central office.
[20]
The appointment was subject to the
conclusion of an agreement between the applicant and the respondent.
To this end the applicant
and the respondent concluded the JBCC
Principal Building Agreement Series 2000 Edition 5.0 of July 2007
(the JBCC agreement).
[21]
On 29 July 2015 the site was handed over
to the respondent.
[22]
On 30 October 2015 the respondent
submitted an application for an extension of time to complete the
works. By agreement between
the parties, the completion date
was revised to 18 November 2015. There was no further extension
of the completion date beyond
18 November 2015.
[23]
In 2016, after the date of completion of
the works had already passed, the respondent referred a dispute to
adjudication in terms
of clause 40.2 of the agreement and the
Adjudication Rules for the JBCC Principal Building Agreement.
The
dispute referred to adjudication
[24]
In its statement of referral for
adjudication, the respondent requested the adjudicator to decide
that:
(i)
the agreement between the parties was terminated
by mutual agreement with effect from 17 March 2016;
(ii)
the respondent was entitled to payment in the
amount of R1 210 535.84 including VAT, which amount represented the
value of the works
completed by the respondent; and
(iii)
the respondent was entitled to compensatory
interest of 7% per annum on the aforesaid amount of R1 210 535.84
with effect from 17
March 2016 to date of payment.
[25]
The applicant denied that the respondent was
entitled to payment in an amount of R1 210 535.84 (incl. VAT),
denied the mutual
termination agreement and pleaded that the JBCC
Contract had come to an end by effluxion of time.
[26]
The respondent therefore requested the
adjudicator to decide that the agreement between the parties “
was
terminated by mutual agreement with effect from 17 March 2016
”
and if this finding was made, the respondent would be entitled to an
order directing the applicant to pay the respondent
the amount of R1
210 535.84 together with interest thereon at the rate of 7% per
annum.
[27]
The applicant opposed the relief sought by
the respondent in the adjudication proceedings. It contended,
with reference to
correspondence exchanged between the parties, that
no mutual agreement was concluded to terminate the agreement with
effect from
17 March 2016. Although the parties did discuss the
mutual termination of the agreement, a mutual termination agreement
was
not concluded on 17 March 2016 as is evident by the fact that
draft settlement agreements were exchanged between the parties even
after 17 March 2016.
[28]
The respondent on one occasion
specifically stated in an email that should a settlement agreement
not be reached; the JBCC Contractual
Agreement would remain in place.
[29]
The adjudicator ruled in favour of the
respondent. Both parties were, however, not satisfied with the
adjudication determination
and the matter then proceeded to
arbitration.
ARBITRATION
PROCEEDINGS
The
arbitration clause
[30]
The arbitrator’s jurisdiction is
derived from the arbitration agreement found at clause 40 of the JBCC
Principal Building
Agreement, which provides:
“
40.1
Should any disagreement arise between the employer, including his
principal agent or agents, and the contractor
arising out of or
concerning this agreement or its termination, either party may give
notice to the other to resolve such disagreement.
40.4
Where a dispute is referred to arbitration the following shall apply:
40.4.2 The arbitration
shall be conducted by the arbitrator in accordance with the rules of
the body stated in the contract
data.
40.4.3 The arbitrator shall
have the power to open or revise any certificate, opinion, decision,
requisition, or notice relating
to the dispute as if no such
certificate, opinion, decision, requisition or notice had been issued
or given.
40.4.4 The arbitrator’s
decision shall be binding on the parties who shall give effect to it
without delay.”
[31]
The arbitration proceedings were conducted
in terms of the 2013 edition of the rules for the conduct of
arbitrations of the association
(the Rules). Article 20(2) of
the Rules provides that a statement of claim shall include, amongst
others, the following particulars:
(i)
a statement of the facts supporting the claim;
(ii)
the points at issue;
(iii)
the relief or remedy sought; and
(iv)
the legal grounds supporting the claim.
[32]
Article 21 of the Rules further provides
that a respondent in arbitration proceedings shall communicate its
statement of defence
in writing and that such statement of defence
shall reply to the statement of claim. In terms of article
21(3) of the Rules
a respondent may make a counterclaim in its
statement of defence. Article 21(4) of the rules provides that
the provisions
of article 20(2) to (4) of the rules shall apply to
the counterclaim.
The
award
[33]
The arbitrator’s award was delivered
in December 2018 setting aside the adjudication determination.
The arbitrator,
with reference to clause 40 (the arbitration clause)
of the JBCC, concluded that —
(i)
the JBCC Contract was not terminated, either by
effluxion of time on 18 November 2015, nor by mutual agreement on 17
March 2016.
The arbitrator held that the JBCC Contract was
still valid and extant for the project and would be used to determine
the
remaining claims between the parties.
(ii)
the certificate as included as the Principal
Agent’s Final Account dated 6 May 2016 is not the final account
and must be set
aside.
(iii)
the respondent is not entitled to payment in the
amount of R1 210 535.84 (including VAT) for the work
performed by the
respondent for the applicant.
(iv)
the respondent is not liable for any deductions
for penalties on the project in the amount of R248 000.00.
(v)
the respondent is entitled to alternative relief
and payment of the Final Account certified by the Principal Agent’s
Quantity
Surveyor (the QC Final Account) in the gross amount of
R1 053 311.55 (excluding VAT) less the payment in the sum
of R350 150.55
(excluding VAT) for works performed by the
respondent for the applicant.
(vi)
the respondent was entitled to the interest for
amounts due to the respondent for work done for the applicant on the
gross sum of
R 864 561.55 excluding VAT less the payment in the
sum of R 350 150.55 excluding VAT for certificates 1 and 2.
(vii)
the respondent is awarded the costs of the award.
Each party shall bear their own costs for the adjudication.
The
applicant’s case
[34]
The applicant premised its argument on the
principle that the arbitration proceedings had to be conducted in
light of the contents
of the statement of claim and statement of
defence and that the arbitrator was by law required to conduct the
proceedings in accordance
with the rules and what was pleaded in the
statement of claim and statement of defence.
[35]
The applicant submitted that the
arbitrator did not confine himself to the pleadings but went on to
consider and make findings and
rulings on issues which fell outside
the pleadings and which he was not authorized to entertain in terms
of the Rules. This,
the applicant submitted, constitutes a
gross irregularity in the conduct of the arbitration proceedings
because the arbitrator
exceeded his terms of reference or
jurisdiction.
The
pleadings
[36]
The applicant, in applying for the
arbitrator to revise the adjudicator’s award, filed a statement
of claim in terms of which
it pleaded as follows:
(i)
The completion date for the works was extended to
18 November 2015 and not further. Accordingly, the JBCC
Contract came to
an end by effluxion of time on 18 November 2015;
(ii)
The adjudicator was called upon to decide that
the JBCC Contract was terminated by mutual agreement on 17 March 2016
and, having
found that it was not so terminated, was not entitled to
make a finding that the respondent was entitled to payment for the
works
completed by it. In essence, the applicant pleaded that
the respondent’s entitlement to payment for works completed
would only arise if the JBCC Contract was cancelled by mutual
agreement on 17 March 2016;
(iii)
The adjudicator had regard to documents, drew
inferences, made assumptions and came to conclusions that he was not
entitled to,
that were not supported by the evidence before him, and
that were not part of the issues placed before him.
[37]
The applicant prayed in its statement of
claim that the adjudicator’s decision be revised to read that:
(i) The respondent’s
referral is dismissed; (ii) The
applicant’s costs (in the adjudication) shall be paid by the
respondent; and (iii) The applicant’s
costs in the arbitration
shall be paid by the respondent.
[38]
The respondent, who also applied for the
arbitrator to revise the adjudication determination, filed a
statement of defence in terms
of which the respondent denied that the
JBCC Contract was terminated by effluxion of time on 18 November 2015
and pleaded that
the JBCC Contract was terminated by mutual agreement
on 17 March 2016.
[39]
In paragraph 20.3 of the respondent’s
statement of defence the respondent specifically stated:
“
the respondent is entitled
to payment in the amount of R1 210 535.84… inclusive
of VAT for works performed by the
Respondent for the Claimant.”
[40]
The respondent denied that an award in
favour of the respondent for payment for works completed was
dependent on a finding that
the JBCC Contract was terminated by
mutual agreement on 17 March 2020 and pleaded that the claim for
payment was a claim based
on the value of works completed by the
respondent as certified by the principal agent. The applicant
disagreed with the argument
and submitted that the respondent was
only entitled to what was claimed and, because the respondent’s
claim flowed from the
settlement agreement it argued was concluded,
once the settlement agreement was found not to have been concluded,
the respondent
was not entitled to the R1 210 553.84
claimed in paragraph 20 of the statement of defence. That,
according to the
applicant, should have been the end of the matter
because that was the only issue that was in dispute according to the
pleadings.
By entertaining the QC Final Account, the arbitrator
strayed beyond its jurisdiction rendering the award reviewable.
Therefore,
so it was submitted, the arbitrator was not called
upon, by the pleadings, to make a payment order based on the quantity
surveyor’s
final account. The applicant also submitted
that it was not heard on whether or not it was liable in the amount
set out in
the QC Final Account because, the applicant submitted,
that was not an issue in dispute on the pleadings.
GROUNDS
OF REVIEW
[41]
The applicant raised six grounds of
review. In light of applicant’s counsel’s
concession that no case has been
made out for a review on the basis
of misconduct (section 33(1)(a) of the Act), I will therefore no
longer consider those grounds
of review that deal with misconduct.
The main ground for review is encapsulated in more than one of
the grounds for review.
In essence it is argued that the
arbitrator exceeded its jurisdiction in entertaining a claim based on
the Final Account
of the QC dated 3 October 2016 and that it did so
without giving the applicant an opportunity to be heard thereon. It
is
also submitted that the arbitrator was biased in favour of the
respondent and against the applicant in relying on the 3 October
Final Account (as this was not the applicant’s pleaded case and
by not inviting the applicant to make representations as
to why an
order should not be made against it in relation to the 3 October 2016
Final Account). The applicant submitted that
this was unfair
and resulted in there not being a fair trial to which the applicant
was entitled.
[42]
These grounds of review fall within the
purview of section 33(1)(b) of the Act. In order to succeed on
this ground the applicant
must persuade the court that it did not
have its case fully and fairly determined before the arbitrator and
that it therefore did
not receive a fair trial.
[43]
This question must be considered taking
into account the pleadings and the powers conferred upon the
arbitrator in terms of clause
40 of the JBCC agreement in terms of
which it is stated that the arbitrator –
“
Should have the power to
open or revise any certificate, opinion, decision, requisition or
notice relating to the dispute as if
no such certificate, opinion,
decision, requisition or notice had been issued or given.”
[44]
I have already pointed out that it is the
applicant’s submission that the respondent formulated its
payment relief on the
basis that there was an alleged mutual
termination agreement and submitted that, in simple terms, there had
to be a mutual termination
agreement before the obligation to pay
could arise. Once the arbitrator held that there was no
settlement agreement, the
respondent’s entitlement to payment
(according to his argument) therefore also fell away.
[45]
I do not agree that the arbitrator
misconstrued the pleadings and as a result strayed beyond the
jurisdictional boundaries imposed
on him. Firstly, having
regard to clause 40 of the arbitration agreement, the arbitrator was
clearly afforded wide powers.
Secondly, the respondent referred
a dispute in terms of clause 20.3 of its statement of defence
regarding its entitlement
to payment for works performed by the
respondent. Once the arbitrator decided that the settlement
agreement was not concluded
with the result that the entitlement to
payment could not be based on the settlement agreement and that the
JBCC Contract was extant
and thus applied to the contract, the
arbitrator was, in my view, entitled to decide the respondent’s
entitlement to payment
in terms of the contract. The mere fact
that the basis for the payment entitlement shifted from the terms of
the settlement
agreement to the terms of the JBCC contract does not
lead to the conclusion that the arbitrator had no jurisdiction. The
entitlement
for payment for works performed by the respondent to the
applicant was before the arbitrator. I must also add that
counsel
on behalf of the applicant, to a question posed by the court,
did not deny that the respondent was entitled to payment for work
done, but responded that the respondent then had to amend its
pleadings to provide for its claim to payment on that basis.
There is no merit in this submission. Thirdly, the issue of the 3
October 2016 Final Account prepared by the QS was before the
arbitrator. Despite the fact that the applicant submitted that
it was not afforded an opportunity to be heard regarding this
account, it is clear from the arbitration record that the account was
introduced during the proceedings and that evidence was led
about the
account.
[46]
Mr. Oyewo was the only witness on behalf
of the applicant. He was the appointed principal agent on
behalf of the applicant
in respect of the project. He explained
that the respondent had struggled to complete the contract. He
confirmed under
cross-examination that the Final Account was
completed by the consultant QS. Mr. Oyewo explained that he was
involved in the preparation
of the final account in that he had to
define the scope of works (although there was a reduction of the
scope of works in order
to finish the project) that was completed.
He also confirmed the date of the final account to be 3 October
2016 and confirmed
that he received it. Importantly, Mr. Oyewo
confirmed that because a settlement agreement was not signed, the
contract continued
on the basis of the JBCC:
“
Because it [the settlement
agreement] was never signed we continued to run the contract on the
basis of the JBCC. And we then said,
the QS then said that if you
indeed want me to prepare a final account then the contract, the job
has to be concluded or the project
determined. So it was only after
we had terminated the contract that he then prepared the final
account…… Yes I took
a look at it. I went through it
with the QS.”
[47]
The applicant also took issue with the
arbitrator’s formulation of “alternative relief”
referred to in paragraph
137 of the award. The applicant
submitted that there was no lawful basis to entertain the so-called
“alternative relief”
more so without giving the applicant
a hearing thereon. Nothing turns on this. The dispute
about the payment for works
completed was properly before the
arbitrator and properly ventilated. I should also in conclusion
point out that the applicant
made out no case that the arbitrator was
biased.
ORDER
[48]
The following order is made:
(i)
The application is dismissed with costs.
(ii)
The arbitration award dated 7 December 2018 is
made an order of court.
AC
BASSON
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Electronically
sent therefore unsigned
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 26 April 2021.
APPEARANCES
For
the Applicant:
KENNEDY TSATSWANE SC
Instructed
by:
GILDENHUYS MALATJI INC
For
the Respondent:
ADV LF LAUGHLAND
Instructed
by:
MDA CONSULTANTS
Date
of
hearing:
16 April 2021
Date
of judgment:
26
April 2021
[1]
42 of 1965.
[2]
[1993] ZASCA 158
;
1994 (1) SA 162
(A) at 169B.
[3]
See
Dickenson &
Brown v Fisher’s Executors
1915 AD 166
at 174:
"The
parties have selected the arbitrator as judge both of fact and law,
and if he be ever so erroneous in the decision at
which he has
arrived it is conclusive upon the parties . . .; his award is final,
and whether it be right or wrong in point of
law, it is a matter
with which I am not entitled to deal." And in the same case
LORD HERSCHELL said: "The arbitrator
whether he has decided
rightly or wrongly is supreme. There is no power to review his
decision, whether he has made a mistake
in law or whether he has
made a mistake in fact." And that the law of Natal on
this subject is to the same effect
is, I think, quite clear.”
[4]
Total Support
Management (Pty) Ltd and Another v Diversified Systems (SA) (Pty)
Ltd and Another
[2002] ZASCA 14
;
2002
(4) SA 661
(SCA) at para 21.
[5]
Dickenson & Brown
v Fisher’s Executors
1915 AD 166
at 176.
[6]
See
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA) at para 85: “The fact that the
arbitrator may have either misinterpreted the agreement, failed to
apply South African
law correctly, or had regard to inadmissible
evidence does not mean that he misconceived the nature of the
inquiry or his duties
in connection therewith. It only means that he
erred in the performance of his duties. An arbitrator ‘has the
right to
be wrong’ on the merits of the case”.
[7]
1993 (1) SA 30
(C) at 38E – G.
[8]
Bester v Easigas (Pty)
Ltd and Another
1993
(1) SA 30
(C) at 38H.
[9]
[2002] ZASCA 14
;
2002 (4) SA 661
(SCA) at para 21.
[10]
See
Total Support
Management (Pty) Ltd and Another v Diversified Systems (SA) (Pty)
Ltd and Another
[2002] ZASCA 14
;
2002
(4) SA 661
(SCA) at para 36.
[11]
1909 TS 576
at 581.
[12]
1938 TPD 551
at 560.
[13]
2008
(2) SA 608 (SCA).
[14]
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA).