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[2019] ZAGPPHC 81
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Ramphele v Mlambo (2017/33789) [2019] ZAGPPHC 81 (14 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,PRETORIA
(1)
REPORTABLE:
NO
(2)
OF INTEREST
TO OTHER JUDGES: NO
(3)
REVISED:
CASE NO
:
2017/33789
DATE:
14
TH
MARCH 2019
In
the matter between:
RAMPHELE
,
VELILE
CHRISTOPHER
Applicant
and
MLAMBO,
MANDLENKOSI DENIS
Respondent
JUDGMENT
ADAMS J:
[1].
This is an opposed application by the applicant for an order that an
Arbitrator's award
be made an Order of Court. The applicant also
applies for an Order correcting certain discrepancies in the Award of
the Arbitrator.
[2].
There is no dispute between the parties that the applicant is
entitled to have the Arbitrator's
Award made an Order of Court. Where
the applicant and the respondent part ways is in relation to the
applicant's prayer that the
respondent be ordered to pay the costs of
the Arbitrator and interest from the date on which the Award was
made.
[3].
The Arbitrator's Award is dated the 19ht of April 2016, but was only
'handed down' on the 19th of
October 2016. The delay in the handing down of the award apparently
resulted from the fact that the
Arbitrator was not prepared to
release his findings until such time as his fees had been paid in
full. This was done during or
about October 2016 by the applicant,
the respondent having refused and / or neglected to pay his portion
of the Arbitrator's fees
payable by him in terms of the Arbitration
agreement. I interpose here to mention that the Arbitration was
conducted in accordance
with the 'Rules for the Conduct of
Arbitrations' of the Association of Arbitrators (Southern
Africa)('the Rules').
[4].
In terms of the Arbitrator's Award the respondent was ordered to pay
to the applicant the
amount of R109 521.57, together with 'the full
cost of the [applicant] on the attorney and client scale for experts,
attorney and
Counsel on the High Court Scale', including the wasted
cost occasioned by the postponement of the arbitration hearing on a
date
prior to the hearing. The award makes no mention of the payment
of the Arbitrator's fees. It also gives no indication as to whether
or not interest is payable on the capital amount of the award and
from what date and the rate at which it should be paid.
[5].
On an enquiry made by the applicant in an email dated the 2i h of
October 2016 , the Arbitrator
confirmed to all the parties that his
intention was to include in his cost award the Arbitrator's fees. In
other words, the Arbitrator
informally advised the parties on the
2yht of October 2016 that, although his Award does not spell it out,
it is implied therein
that he ordered the respondent to pay the cost
of the Arbitration, as part of the cost award against him in favour
of the applicant.
[6].
The applicant's case for an Order to rectify the Arbitrator's Award
is based on the provisions
of section 31(2) of the Arbitration Act,
42 of 1965 ('the Act'). Section 31 of the Act provides as follows:
'31
Award may be made an order of court
(1)
An
award may, on the application to a court of competent jurisdiction by
any party to the reference after due notice to the other
party or
parties, be made an order of court.
(2)
The
court to which application is so made, may, before making the award
an order of court, correct in the award any clerical mistake
or any
patent error arising from any accidental slip or omission.
(3)
An
award which has been made an order of court may be enforced in the
same manner as any judgment or order to the same effect.'
[7].
The applicant contends that the omission by the Arbitrator 1.o make
reference to the Arbitrator's
fees amounted to a clerical mistake or
a patent error as envisaged by section 31(2) and that this Court has
the power to make an
Order correcting that mistake. In view of the
fact that the Arbitrator himself acknowledges that his intention was
to order the
respondent to pay the Arbitrator's fees as part of the
cost awarded in favour of the applicant, I am of the view that this
aspect
of the matter falls squarely within the ambit of section
31(2).
[8].
The respondent opposed this portion of the relief sought on the basis
that the procedure
the Arbitrator should have followed to correct his
award was not complied with. In that regard, Mr Richard, who appeared
on behalf
of the respondent, referred to the provisions of Rule 38(1)
and (3), which prescribes a procedure to be followed by the
Arbitrator
in order to correct in any Award any clerical mistake or
any error arising from any accidental slip or omission. This
procedure
was not followed by the Arbitrator and therefore, so Mr
Richard submits, the Award cannot and should not be corrected.
[9].
There is no merit in this submission on behalf of the respondent.
Objectively speaking,
and having regard to the facts in this matter,
there can be no doubt, as I indicated above, that the Arbitrator
probably intended
to include in his cost award an order that the
respondent pays the Arbitration costs as well. That is in terms of
the legal principles
applicable. There is also no merit in the
argument that the parties had agreed, as per the Rules, that they
would be liable, jointly
and severally, to the Arbitrator for the due
payment of his fees and expenses. This provision regulates the
relationship between
the litigants and the Arbitrator and makes the
parties liable for the Arbitrator 's charges. It has no relevance to
the award for
cost as between the parties in the Arbitration
proceedings, which remains an issue which falls within the discretion
of the Arbitrator.
Rule 39(1) provides that the award of costs shall
be at the discretion of the Arbitrator.
[10].
The applicant is therefore entitled to an order that the award for
cost should include an order that
the respondent pays the Arbitration
costs, inclusive of the Arbitrator's fees.
[11].
As regards the issue of the interest, this aspect of the matter is
governed by the provisions of section
29 of the Act, which provides
as follows:-
'29 Interest
on amount awarded
Where
an award orders the payment of a sum of money, such sum shall, unless
the award provides otherwise, carry interest as from
the date of the
award and at the same rate as a judgment debt.'
[12].
This, in my judgment, means that ex lege the applicant is entitled to
interest on the capital sum
of R109 521.57 at the applicable legal
rate from the 27
th
of October 2016 , which is the date on
which the Award was published.
[13]. The
applicant's application should therefore succeed.
Costs
[14]. The
applicant has been successful in his opposed application against the
respondent. This means that,
applying the general rule, the applicant
is entitled to a cost order.
[15]. I
can see no reason to deviate from the general rule and cost should
therefore be awarded in favour
of the applicant against the
respondent.
Order
In
the result, I make the following order:-
The Award dated the 19
th
of April 2016 by the Arbitrator, Mr G B C Ahier, be and is hereby
made an Order of this Court and Judgment is granted in favour
of the
applicant against the respondent as follows:
1.
Payment
of the sum of R109 521.57.
2.
Payment
of interest on the said amount of R109 521.57 at the rate of 10.25%
per annum from the 19
th
of October 2016 to date of final payment.
3.
Payment
of the applicant's cost of the Arbitration, including any and / or
all attorneys' fees, Counsel's charges, expert charges
and the
Arbitrator's fees and charges, on the High Scale as between attorney
and client, inclusive of the wasted costs occasioned
by the
postponement of the Arbitration hearing during June 2015.
4.
The respondent shall pay the applicant's
cost of this opposed application.
LR ADAMS
Judge of the High Court
Gauteng Division, Pretoria
HEARD
ON:
12
th
March 2019
JUDGMENT
DATE:
14
th
March 2019
FOR
THE APPLICANTS:
Adv J H Jooste
INSTRUCTED
BY:
Dreyer & Dreyer Attorneys
FOR
THE RESPONDENT:
Adv C Richard
INSTRUCTED
BY:
Hutton & Odendaal Incorporated