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[2021] ZAGPJHC 561
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AMR Mining (Pty) Ltd v Glencore International AG and Another; Glencore International AG v AMR Mining (Pty) Ltd (2020/35015; 2020/17974) [2021] ZAGPJHC 561 (10 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2020/35015
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
NO
DATE:
10 August 2021
In
the matter between:
AMR
MINING (PTY)
LTD
Applicant
and
GLENCORE
INTERNATIONAL AG
First Respondent
T
D
CLOETE
Second Respondent
CASE
NO: 2020/17974
In
the matter between:
GLENCORE
INTERNATIONAL AG
Applicant
and
AMR
MINING (PTY)
LTD
Respondent
JUDGMENT
WEINER
J
Introduction
[1]
Two related matters come before this Court. The applicant in the main
application, Glencore International AG (‘Glencore’),
under case 2020/17974, seeks to have an arbitration award (the
‘award’) made an order of court (the ‘award
application’). In the related application under case number
2020/35015, the applicant therein, AMR Mining (Pty) Ltd (‘AMR’)
seeks to review the arbitrator’s decision (the
‘review
application’).
Background
to the dispute
[2]
In March 2017, Glencore and AMR entered into a written ‘Purchase
of steam coal contract’ (the ‘Agreement’). On 27
June 2017 and 7 March 2018 respectively, the parties entered
into two
written addenda to the Agreement. The Agreement and addenda will
collectively be referred to as the ‘Coal Supply
Agreement’.
In terms of the Coal Supply Agreement, AMR was required to deliver 25
000 metric tonnes of steam coal, of a specified
quality, to Glencore
during the period 1 February to 30 April 2018.
[3]
The parties agreed that any claim arising out of or relating to the
Coal
Supply Agreement, or any alleged breach thereof, would be
settled by arbitration in Johannesburg, with the parties to mutually
agree to the appointment of the arbitrator.
[4]
Glencore contended that AMR breached the Coal Supply Agreement by
failing
to deliver timeously (or at all) coal of the quality and
quantity required. Glencore accordingly terminated the Coal Supply
Agreement
on or about 8 August 2018. Glencore instituted arbitration
proceedings thereafter, seeking recovery of its damages caused by
AMR’s
aforesaid breaches.
[5]
On or about 31 January 2019, the parties entered into an arbitration
agreement
(the ‘Arbitration Agreement’). In the
arbitration proceedings, Glencore claimed payment of an amount of
R5 231 564.65
plus interest and costs, arising from the
breach by AMR of the Coal Supply Agreement.
[6]
It will be convenient to first deal with AMR’s review
application
and then, if that is not successful, I will deal with the
Glencore application to have the award, dated 12 June 2020, made an
order
of court. AMR seeks an order reviewing and setting aside the
arbitrator’s award in terms of s 33 of the Arbitration Act 42
of 1965 (the ‘Act’). The arbitrator, Judge Cloete, has
been joined as a second respondent in the review application.
[7]
Judge Cloete published his final award on 12 June 2020, and ordered
AMR
to pay Glencore an amount of R4 589 266.27 plus
interest at the rate of 10,25% per annum, calculated from 8 August
2018
to date of payment, and the costs of the arbitration. AMR failed
to make payment and Glencore then instituted the award application.
[8]
In terms of s 33(2) of the Act, an application to set aside an
award
‘shall be made within six weeks of the publication of the
award.’ The six-week time period expired on 24 July 2020.
AMR’s
attorney had, on 23 July 2020, requested an extension in order to
bring the review application by 31 July 2020. Glencore
had refused
this request. No application was launched on 31 July.
[9]
In addition, AMR failed to timeously file its notice of intention to
oppose
the award application. Glencore’s application was
therefore enrolled on the unopposed motion roll for 14 September
2020.
[10]
On 8 September 2020, AMR served a notice of intention to oppose the
award application,
without seeking condonation or explaining why the
notice was served late. Glencore thus sought to proceed with the
unopposed application
on 14 September 2020. However, the matter was
argued on an opposed basis and removed from the roll with costs
reserved.
[11]
AMR failed to file an answering affidavit in the award application.
However, some three
months after the expiry of the time period
permitted in terms of the Act, it launched the review application.
Such application
was launched after the award application had been
re-enrolled for 18 November 2020. It was only delivered on 6 November
2020.
It is noteworthy that the notice of motion was dated 20 October
2020 and the founding affidavit was deposed to the same day.
The
review application
[12]
AMR seeks to review and set aside Judge Cloete’s award of 12
June 2020 in terms of
s 33 of the Act. Glencore opposed the
application, and filed its answering affidavit on 4 December 2020. No
replying affidavit
was filed by AMR. Glencore’s heads of
argument were filed on 8 February 2021; AMR’s heads of argument
were filed on
6 May 2021. Supplementary heads of argument, dealing
with an additional ground of review, were filed later.
[13]
It is common cause that Judge Cloete is an experienced jurist,
well-respected, and that
he was appointed as arbitrator by agreement
between the parties.
[14]
AMR’s case in support of the relief it seeks is that Judge
Cloete—
(a)
evidenced partiality in the conduct of the proceedings, and assisted
the
witnesses for Glencore in leading their evidence, whilst
inappropriately cross-examining the witness for AMR, Mr Marino;
(b)
exceeded his jurisdiction by deciding the dispute in accordance with
inapplicable
foreign legal principles;
(c)
accepted the evidence of Glencore’s witnesses without
criticism,
and rejected Mr Marino’s evidence;
(d)
was biased in his approach to the evidence.
[15]
AMR relied
on
Dickenson
& Brown v Fisher’s Executors
in arguing that Judge Cloete’s misconduct included some
wrongful and improper conduct.
[1]
It submitted further that misconduct has also been described as
requiring some personal turpitude on behalf of the decision maker.
[2]
[16]
AMR
contended that bias will be held to exist, not only where the
decision maker was in fact partial, but also where reasonable
people
might form the impression of bias. It relied on
Mutual
and Federal Insurance Co Ltd v CCMA
,
[3]
where the Labour Court stated:
‘…
a commissioner does not
need to be biased but it is the conduct of the commissioner which
goes towards creating a suspicion and
perception of bias which might
be entertained by a lay litigant, which should be reviewed by this
court. [In]
BTR Industries SA (Pty) Ltd v Mawu & others
(1992) 131 LJ 803… Hoexter JA also set out the test to be
applied in assessing whether the Industrial Court could be said
to
have been biased. …
“
For
present purposes there may be adopted the definition of ‘bias’
stated in the House of Lords by Lord
Thankerton in Franklin v
Minister of Town & Country Planning
1948 AC 84
(HL) at 103.
It was there stated that the proper significance of the word . . .
‘is to denote the departure from the standard
of even-handed
justice which the law requires from those who occupy judicial office
or those who are commonly regarded as holding
a quasi-judicial
office.’”’
[17]
AMR
contended that, it is clear from the transcripts of the proceedings
that Judge Cloete questioned AMR’s witness, Mr Marino,
in a
hostile manner which amounted to cross-examination;
[4]
but, when dealing with Glencore’s witness, he did not challenge
the evidence or act in a manner which could be likened to
cross-examination. It alleged that this was also the case with
Glencore’s second witness, Mr Blumenthal.
[18]
Glencore contended that:
(a)
firstly, in regard to condonation, the review application had to be
filed
by 24 July 2020, but it was only delivered some three months
later on 6 November 2020;
(b)
AMR has failed to show good cause, as envisaged in s 38 of the
Act,
why the Court should extend the six-week time period by an
additional three months. Further, that AMR deliberately delayed the
launching of the application, the explanation given for the late
launching is unacceptable, and that the affidavit deliberately
omits
certain material facts;
(c)
the applicant’s director, Mr Marino, has levelled serious
allegations
against Judge Cloete which are devoid of merit;
(d)
it is incorrect that Judge Cloete did not apply principles of South
African
law, or acted beyond his jurisdiction by having regard to
relevant English authorities;
(e)
even if Judge Cloete erred, whether in fact or law, this does not
constitute
a legally recognisable basis to set aside the award.
[19]
Glencore submitted that AMR failed to disclose material aspects of
the arbitration proceedings
to this Court. One of the facts not
disclosed, is that witness statements were exchanged between the
parties which stood as evidence-in-chief
for the witnesses. The
importance of this is that AMR contended that Judge Cloete somehow
assisted Glencore’s witnesses by
leading their evidence,
whereas all of the evidence was contained in their witness
statements.
[20]
As stated above, AMR alleged that Judge Cloete assisted Glencore’s
witnesses, interfered
in the cross-examination, and demonstrated bias
toward Mr Marino. AMR makes reference to several passages in the
transcript
in order to demonstrate that Judge Cloete assisted
Glencore’s witnesses and that Judge Cloete was hostile, and
entered the
arena in respect of Mr Marino’s evidence.
[21]
In Glencore’s heads of argument, it stated that Mr Marino was a
dishonest and unreliable
witness, and that Judge Cloete gave Mr
Marino every opportunity to clarify his evidence – as appears
from the record. It
is submitted that Mr Marino’s version
displayed inconsistencies and was misleading and vague. Further, in
its heads of argument,
Glencore set out the aspects in which Mr
Marino’s dishonesty was demonstrated, and this was not
challenged in AMR’s
heads of argument – or during oral
argument before Judge Cloete.
[22]
In regard
to the allegation that Judge Cloete referred to English authorities
and therefore exceeded his jurisdiction, AMR relied
on
Hos+Med
Medical Aid Scheme v Thebe ya Pelo Healthcare Marketing &
Consulting (Pty) Ltd
,
[5]
where Lewis JA held as follows:
‘
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….’
[23]
Glencore contended that:
(a)
the
Hos+Med
case was not applicable as the issue raised there
was not the same as the issue raised in the present case. There is no
allegation
that the arbitrator decided issues that were not defined
by the parties
(b)
Judge Cloete did not raise the application of retrospectivity in
English
law. The English authorities relating to retrospectivity were
raised by Glencore’s counsel in the heads of argument;
(c)
the cases to which Judge Cloete made reference related to the issue
of
damages and have been referred to in South African authorities,
and were relied upon by Glencore’s counsel in its initial
heads
of argument;
(d)
the English law authorities relied upon are in line with South
African
case law and principles on those particular issues, and the
contention that Judge Cloete decided the matter on inapplicable
foreign
legal principles, is without merit.
Legal
principles
[24]
Section 33 of the Act provides that the court may, on the application
of any party, make
an order setting aside an award.
[25]
The grounds are limited and relate to instances where—
(a)
a member of the Arbitration Tribunal has misconducted himself in
relation
to his duties as arbitrator or umpire – s 33(1)(a).
(b)
an Arbitration Tribunal has committed a gross irregularity in the
conduct
of the arbitration proceedings, or has exceeded its powers –
s 33(1)(b).
(c)
an award has been improperly obtained – s 33(1)(c).
[26]
AMR seeks to set aside the award under s 33(1)(b), that is, on
the ground that Judge
Cloete committed a ‘gross irregularity in
the conduct of the arbitration proceedings, or has exceeded his
powers.’
[27]
In order to
set aside an award, the Court does not seek to reassess the facts,
but need only deal with the procedure to determine
the validity of
the award itself. The appropriate standard of review of arbitral
awards is one which preserves the autonomy of
the forum chosen and
minimises judicial intervention.
[6]
[28]
Ramsden
states that the courts should respect the parties’ choice to
resolve their disputes through the medium of arbitration, and
recognise the arbitrator’s findings of fact and assessment of
the evidence.
Ramsden
further states that the formation of judgments should be respected
unless they can be shown to be unsupportable.
[7]
[29]
Even if a Judge takes a different view, one that is strongly held,
this is no basis to
set aside the award. It is impermissible for a
court to substitute its judgment for that of the arbitrator in
circumstances where
the parties had mutually agreed to have the issue
determined by arbitration.
[30]
Glencore contended that Judge Cloete did not exceed his jurisdiction
by deciding the issue
in accordance with the principles of foreign
law. The award itself refers to South African law in regard to the
issue of retrospectivity,
and the issue of damages was raised by
Glencore and dealt with in accordance with both English and South
African authorities which
are applicable.
[31]
Having regard to the portions of the transcript to which AMR refers,
and which I have considered
seriously, it is my view that, although
Judge Cloete may have spent some time in getting clarity on the
issues to which Mr Marino
was testifying, this was not done in such a
manner that it demonstrated bias. It appears to me that, with both
Glencore and AMR
witnesses, Judge Cloete was simply attempting to
clarify issues which formed the basis of the dispute, that is, the
retrospectivity
of the contract, and the whether or not there was an
issue of impossibility of performance affecting damages. There
appears to
be nothing untoward in this approach, and it certainly
does not amount to bias or gross irregularity.
[32]
AMR also criticises the arbitrator for filing a report which brought
certain facts to the
Court’s attention. However, if one has
regard to the report, it is simply a chronology of events which
cannot be disputed
by AMR, and such chronology is confirmed by
Glencore. It appears to have been filed in order for the court to
have clarity on the
sequence of events relevant to some of the
attacks on Judge Cloete. In the report, the arbitrator stated the
following:
‘
[1]
…
[2]
I have already indicated to the parties, and requested them to bring
this to the attention of this honourable court, that I
shall abide
the decision of the court.
[3]
I nevertheless feel it incumbent upon me as the arbitrator to assist
in facilitating a proper adjudication of the matter, by
setting out
the correct factual position and sequence of events. All of the facts
to which reference will be made are either already
before the court,
or are objectively verifiable, cannot legitimately be disputed and
should be uncontroversial.
Retrospectivity
of the Contract
[4]
The sequence of the heads of argument delivered in the arbitration,
was as follows:
Glencore's
main heads: 4 May
AMR's
answering heads: 11 May
Glencore's
replying heads: 15 May.
[5]
The first time that English authority relating to retrospective
operation of a contract was referred to or produced, was in
Glencore's replying heads of argument, paras 4 and 5 of which read:
“
4.
Attempts at the time of preparing the main heads of argument, to
source South African or foreign case law or authority dealing
expressly or otherwise with the retrospective effect of agreements,
were unsuccessful.
5.
Further attempts subsequent to receipt of AMR's heads of argument,
resulted in a judgment from the Queen's Bench Division in
England,
germane to the enquiry and reflecting the approach in England to the
issue of the retrospective effect of an agreement,
being sourced.”
Two
cases were cited in Glencore's replying heads of argument. Copies of
these cases were attached to the heads of argument emailed
to me and
to AMR's attorneys. A copy of this email is attached marked “TDC
1”.
[6]
Three days later, on 18 May, Glencore's attorneys sent me a further
email (copied to AMR's attorneys) advising that in addition
to the
two judgements sent together with Glencore's replying heads of
argument, Glencore's legal representatives also intended
relying on a
further judgment (a copy of which was attached to the email), in so
far as the retrospectivity issue was concerned.
A copy of this email
is attached marked “TDC 2”.
[7]
On the same day, 18 May, I requested copies of further English cases.
The first case requested (and the only one that referred
to the
retrospective operation of a contract) was
Thameside Metropolitan
Borough Council v Barlow Securities Group Services Ltd
[2001]
EWCA Civ 1.
That case was referred to in para 41 of the case cited in
footnote 3 of Glencore's replying heads delivered three days
previously.
A copy of my email requesting a copy of the case is
attached to the founding affidavit as annexure “FA 12”.
(The email
is relevant also to what follows.)
Other
cases requested from Glencore's attorneys.
[8]
It is correct, as stated in para 36 of the founding affidavit, that I
requested Glencore's attorneys to source two English cases
for me, as
appears from my email dated 14 May, annexure “FA 10” to
the founding affidavit. However, neither case had
anything to do with
the question of retrospectivity. The cases were:
Robophone
Facilities Ltd v Blank
[1966] 3 All ER 128
(CA),
and
Interoffice Telephones Ltd v Robert Freeman & Co Ltd
[1958] 1
QB 190
(CA).
[9]
Robophone
was referred to in
Wireless Rentals Pty Ltd v
Stander
1965 (4) SA 753
(T), a case that had been cited in
footnote 5 of Glencore's main heads of argument delivered 10 days
prior to my request.
Wireless Rentals
was subsequently
referred to in
Western Credit Bank Ltd v Kajee
1967 (4) SA 386
(N) at 393 C — 394B - and so were both of the English cases of
which I requested a copy.
[10]
Interoffice Telephones
was applied in England, in
Robophone
,
and in South Africa, in
Wireless Rentals
in which Vieyra J
said at 754
in fine
— 755 that: “It seems to me
that this [ie the English] approach is a valid one and consistent
with our law.”
[11]
It is also correct, as appears from annexure “FA 12” to
the founding affidavit, that on 18 May (ie after Glencore's
replying
heads of argument had already been delivered) I requested Glencore's
attorney to provide me (in addition to the
Tameside
case
referred to in para 7 above) with copies of two other cases; and I
mentioned two more. (Each of those four cases was referred
to in the
judgment of Jenkins LJ who delivered the main judgement in the
Interoffice Telephones
case.) My purpose in doing so appears
from the last paragraph of annexure “FA 12”, which I
quote for convenience: “I
have the All ER reports for
Thompson
(WL) Ltd v Robinson (Gunmakers) Ltd
[1955] Ch 177
,
[1955] 1 All E
R 154
; and
Charter v Sullivan
[1957] EWCA Civ 2
;
[1957] 2 QB 117
,
[1957] 1 All ER
809
(CA) that appear to be relevant. I do not need copies, but I
mention these cases as I assume that the attorneys for both sides
will draw the attention of their respective counsel to the various
authorities referred to in recent correspondence.”
None
of the four cases to which I have just referred deals with
retrospective operation of a contract. They all refer to the
calculation
of damages.
[12]
The extent to which I relied on English authority in making the Award
(as opposed to referring to such authority), and whether
there was a
“failure to have engaged with South African legal principles”
(as alleged in para 40 of AMR's founding
affidavit), appear from the
Award itself. I have nothing further to add in this regard in this
litigation, but I must expressly
reserve my rights.’
Further
ground of review
[33]
AMR, after
the affidavits had been filed in this matter, sought to raise a
further ground of review. It relied, in this regard,
on the decision
in
Halliburton
Company
v
Chubb
Bermuda Insurance Ltd
,
[8]
where the United Kingdom Supreme Court of Appeal dealt with
principles concerning an arbitrator’s duty to disclose any
facts
which may affect impartiality.
[34]
AMR submitted that an arbitrator has a legal duty to disclose the
existence of potentially
overlapping arbitrations, and that a failure
to disclose is a factor that a fair-minded and informed observer may
take into account
in assessing whether there is a real possibility of
bias. AMR contended that Judge Cloete had a legal duty to disclose
the fact
that he had been nominated and appointed in another
arbitration involving Glencore (the ‘other Glencore
arbitration’).
[35]
Glencore’s responded as follows to this argument:
(a)
the facts in the
Halliburton
matter are distinguishable from
the facts in this matter;
(b)
the additional review ground has been raised almost a year after the
arbitration
hearing was finalised. AMR has been aware of Judge
Cloete’s role as arbitrator in the other Glencore arbitration,
at latest,
since April 2020;
(c)
Judge Cloete’s appointment in the other Glencore arbitration
took
place well after his appointment in the AMR arbitration;
(d)
the hearing in the AMR arbitration took place and Judge Cloete’s
award had been prepared and was available for publication at a time
when the hearing in the other Glencore arbitration had not
yet
commenced and no evidence had been led.
[36]
Halliburton
concerned
the issue of when an arbitrator should make disclosure of
circumstances which may give rise to ‘justifiable doubts
as to
his impartiality’.
[9]
The
case involved an accident that had caused extensive damage and loss
of life and led to several claims before the US courts.
The US
Federal Court apportioned liability between several defendants, which
included Halliburton and a company styled Transocean.
[37]
Halliburton and Transocean settled the claim instituted against them
in the US. Halliburton
then claimed the amounts back from Chubb
Insurance Co in terms of its insurance policy. Transocean also
claimed back from both
Chubb and its other insurer. Chubb repudiated
Halliburton’s claim and Halliburton commenced arbitration
proceedings against
Chubb in London. There were three arbitrators,
including one R.
[38]
R subsequently, without Halliburton’s knowledge, accepted two
other appointments
in the arbitrations arising from Transocean’s
claims against Chubb and its other insurer. Halliburton contended
that R should
have disclosed the further appointments, and that his
response to the challenge to his impartiality resulted in an
appearance of
bias. Both Transocean arbitrations had commenced
several months after the Halliburton arbitration.
[39]
In a unanimous decision, the Supreme Court accepted that, in order to
promote the principles
of impartiality and fairness, arbitrators have
a legal duty to disclose any potential conflicts of interests they
may have that
may give rise to justifiable doubts about their
impartiality. It, however, dismissed Halliburton’s appeal and
found that
a fair-minded and informed observer would not conclude
that there were circumstances that would give rise to justifiable
doubts
about R’s impartiality.
[40]
The conclusions reached by the UK Supreme Court in
Halliburton
relate to the legal duty of disclosure (in terms of the UK law) and
its impact on bias or impartiality in circumstances where an
arbitrator had accepted an appointment in multiple references where
‘the same or overlapping subject matter with only one
common
party’ was at stake.
[41]
The issue of ‘the same or overlapping subject matter’
between the AMR arbitration
and the other Glencore arbitration does
not arise in the present case. AMR relied solely on the fact that
Judge Cloete had been
appointed as the arbitrator in the another
arbitration in which Glencore was a party. Thus, the
Halliburton
decision is distinguishable.
[42]
However, in
any event, the
Arbitration Act (contrary
to the UK Arbitration Act of
1996), although making provision for removals of arbitrators and
setting aside award in appropriate
circumstances,
[10]
does not contain provisions dealing with the duties of impartiality
resting on arbitrators.
[43]
The International Arbitration Act 15 of 2017, which came into
operation during December
2017 (in the context of international
arbitrations), incorporated the UNCITRAL Model Law (the ‘Model
Law’) on international
commercial arbitrations as applicable in
South Africa. In terms of Article 12 of the Model Law, a duty to
disclose arises in the
event of ‘any circumstances likely to
give rise to justifiable doubts as to his/her impartiality or
independence’ existing.
The UK Arbitration Act is in line with
this provision.
[44]
In terms of Articles 12(2) and (3) of the Model Law, a challenge to
an arbitrator’s
appointment may only be made if circumstances
exist that give rise to ‘justifiable doubts as to his/her
impartiality or independence’.
For the purpose of Article 12,
‘justifiable doubts’ requires ‘substantial grounds
for contending that a reasonable
apprehension of bias would be
entertained by a reasonable person in possession of the correct
facts’. Glencore contended
that the statutory test imposed for
international arbitrations should be applied to domestic arbitrations
as well. Based on the
chronological sequence of events, AMR has
failed to demonstrate that Judge Cloete’s conduct fell within
this definition.
[45]
The fact that Judge Cloete was appointed in the other Glencore
arbitration, which does
not arise from a similar event or overlapping
issues, does not constitute ‘substantial grounds for contending
for a reasonable
apprehension of bias’ which would be
entertained ‘by a reasonable person in possession of the
correct facts’.
Condonation
[46]
AMR contended that it had demonstrated that it was in the interests
of justice to grant
condonation. It submitted further that it had set
out the cause of the delay, which was not unreasonable. Mr Marino,
the deponent
to the founding affidavit, stated that he could not
decide whether to pursue the application or not, and seeks to use
this as a
reason for the late filing.
[47]
Glencore, however, points to the fact that that AMR had, by 24 July
2020, already decided
to launch the review application but failed to
do so. The review application was only served on Glencore’s
attorneys on 6
November 2020, despite the founding affidavit having
been signed and the notice of motion having been issued on 20 October
2020.
[48]
Glencore submitted that AMR had failed to set out good cause for such
delay. The explanation,
considering the chronology of events,
demonstrates that AMR intentionally delayed the filing of the review
application until the
last moment, and only did so after Glencore’s
notice to set down the award application was served on it.
[49]
Glencore submissions are well founded. Good cause has not been shown.
Thus, AMR’s
application for condonation falls to be dismissed
both on the grounds of a failure to explain the delay and on the
merits.
[50]
The award application is unopposed, and Glencore has made out a
proper case for such award
to be made an order of court.
Costs
[51]
Glencore seeks a punitive costs order, in that AMR has vexatiously
sought to impugn the
personal and professional integrity of Judge
Cloete, without good cause. It contended further that the application
for review is
also frivolous and vexatious, and it has delayed the
enforcement of the award.
[52]
Having regard to the inordinate delays that AMR has caused in these
proceedings, all of
which appear to have been deliberate, and the
malicious attacks on Judge Cloete’s integrity, Glencore’s
submissions
are well founded and a punitive costs order will thus be
made.
Accordingly,
the following order is made:
1.
The application for condonation of the review application is refused
and the review application is dismissed,
with costs to be paid by AMR
Mining (Pty) Ltd on a scale as between attorney and client.
2.
The arbitration awards granted by the arbitrator, retired Judge TD
Cloete, on 18 April 2020 and 12 June 2020
respectively, copies of
which are attached to the Notice of Motion marked ‘NM1’
and ‘NM2’ are made an order
of this Court in terms of
s 31 of the Arbitration Act 42 of 1965 (the ‘Act’).
3.
Pursuant to s 35(4) of the Act, it is directed that the costs of
the—
3.1.
postponement application (being the subject matter of the award dated
18 April 2020) be taxed by the taxing
master of the Court on the High
Court scale as between party-and-party, and to include the costs of
counsel; and
3.2.
arbitration proceedings (being the subject matter of the arbitration
award dated 12 June 2020) be taxed by
the taxing master of the Court
on the High Court scale as between party-and-party, and to include
the costs of counsel.
4.
AMR Mining (Pty) Ltd is directed to pay the costs of this
application, which are to include the costs reserved
on 14 September
2020.
SE
WEINER
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ and/or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for hand-down is
deemed to be 10h00 on 10 August 2021.
Date
of
hearing:
20 July 2021
Date
of
judgment:
10 August 2021
Appearances:
Counsel
for the AMR Mining (Pty) Ltd:
Adv. R Potgieter SC
Attorney
for the AMR Mining (Pty) Ltd:
Senekal Simmonds Inc
Counsel
for the Glencore International AG:
Adv. A Subel SC
Adv. A Lamprecht
Attorney
for the Glencore International AG:
Werksmans Attorneys
[1]
Dickenson
& Brown v Fisher’s Executors
1915 AD 166
at 176.
[2]
See
Reunert
Industries (Pty) Ltd t/a Reutech Defence Industries v Naicker &
others
(1997)
18 ILJ 1393 (LC) at 1395H.
[3]
Mutual
and Federal Insurance Co Ltd v CCMA
[1997] 12 BLLR 1610
(LC) at 1618.
[4]
Several
references were contained in AMR’s documents, to which the
Court
was
directed.
[5]
Hos+Med
Medical Aid Scheme v Thebe ya Pelo Healthcaret Marketing &
Consulting (Pty) Ltd and Others
[2007] ZASCA 163
;
2008 (2) SA 608
(SCA) para 30.
[6]
See
PAA Ramsden
The
Law of Arbitration: South African and International Arbitration
2
ed (2014) at 249.
[7]
[7]
Ibid
para 9.6.5 at 251.
[8]
Halliburton
Company v Chubb Bermuda Insurance Ltd
[2020] UKSC 48.
[9]
Ibid
para 28.
[10]
Sections
13 and 33 of the Act.