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[2018] ZAKZPHC 29
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Bright Idea Projects 66 (Pty) Ltd t/a All Fuels v Former Way Trade and Invest (Pty) Ltd t/a Premier Service Station (283/18P) [2018] ZAKZPHC 29; 2018 (6) SA 86 (KZP) (10 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 283/18P
In
the matter between:
BRIGHT
IDEA PROJECTS 66 (PTY) LTD
t/a
ALL
FUELS
APPLICANT
and
FORMER WAY TRADE AND
INVEST (PTY) LTD
t/a PREMIER SERVICE
STATION
RESPONDENT
ORDER
The
following order is granted:
(a)
The
main application succeeds and the counter-application is dismissed.
(b)
The
respondent is directed to forthwith vacate the applicant’s
premises described as Sub 27 of Lot 2725, Pietermaritzburg,
KwaZulu-Natal, physically situate at 238 Albert Luthuli Street,
Pietermaritzburg.
(c)
The
respondent shall pay the applicant’s costs, including the costs
of two counsel.
JUDGMENT
D.
Pillay J:
[1]
This
application for ejectment is resisted with a counter-application to
enforce an alleged renewal agreement, alternatively, for
a stay of
these proceedings pending arbitration. The applicant is the owner of
the property described as sub 27 of Lot 2725, Pietermaritzburg,
KwaZulu-Natal bearing the physical address 238 Albert Luthuli Street,
Pietermaritzburg (‘the premises’). On 28 February
2016,
the respondent signed an agreement that resulted in a cession and
assignment of the rights (‘the cession’) held
by Tomdia
Service Station CC (‘Tomdia’), the former franchisee in
terms of a franchise agreement (‘the franchise’).
The
respondent occupied the premises under the cession and the franchise.
The franchise expired on 31 December 2017 simultaneously
terminating
the cession. In terms of a ‘whole agreement clause’ in
the cession, the parties agreed that the applicant
had no legal
obligation to acknowledge any rights of occupation beyond the
cession. Despite notices to vacate, the respondent remains
in
occupation of the premises against the will of the applicant.
[2]
Having
established its ownership of the premises and the respondent’s
occupation of it, the applicant is entitled to an order
for
eviction,
[1]
unless the court
finds that:
(a)
the
parties concluded an agreement renewing the respondent’s right
to occupy the premises; or
(b)
arbitration
under the Petroleum Products Act 120 of 1977 (‘the PPA’)
or arbitration clause 20 of the franchise suspends
this litigation.
[3]
The
respondent contended that the parties had agreed to conclude a
renewal franchise agreement terminating on 28 February 2025.
Allegedly, the applicant undertook to give the respondent a standard
franchise agreement, upon receipt of which, the respondent
would pay
the brand fee in exchange for the extended tenure. But the applicant
failed to do so. For its part, the applicant acknowledged
that the
parties had engaged in negotiations for a renewal but that no renewal
agreement materialised because the respondent refused
to pay what was
variously referred to as the brand fee, key money or royalty.
[4]
The
respondent bears the onus of proving the existence and terms of its
renewal agreement. It has to allege and prove whether such
agreement
is written or oral, when, where and by whom it was concluded and
produce a copy if one exists.
[2]
A comprehensive chronology is the starting point of my search for a
renewal agreement. Manifestly from the ensuing correspondence,
negotiations for a renewal of the franchise were conducted
concurrently with the respondent’s purchase of the cession of
the franchise.
[5]
On 22
July 2014, the respondent concluded an agreement to purchase the
service station from Tomdia. On 22 December 2014, the respondent
signed the applicant’s letter approving it to be the new
operator, subject to the conclusion of the cession.
[6]
By
way of email on 30 June 2015, the applicant forwarded to the
respondent, a draft cession and surety agreement for the renewal
of
the franchise. Paragraph 12 of the draft provided for the upfront
payment of the royalty of R3 250 000, in exchange for
the
renewal of the franchise on standard terms, for the balance of the
tenure of five years from 1 March 2015, with an option to
extend for
an additional five years.
[7]
Apologising
for its delayed response, on 23 November 2015 the respondent, on
advice, indicated its resolve not to sign the draft
cession on
account of the stipulation of the upfront royalty. It alleged that
there had been no discussion about the upfront payment
and insisted
on concluding a franchise agreement for five years with an option of
renewal for a further five years, without such
payment.
[8]
The
applicant responded on 1 December 2015 reiterating the terms of its
draft cession above. Additionally, the applicant advised
the
respondent that its agreement to pay the purchase price of R8m was
excessive as the franchise had approximately three years
to expire.
As a result of this advice, the respondent had the purchase price
reduced to approximately R6m.
[9]
On 22
February 2016, the applicant’s attorneys wrote to the
respondent reminding it that the franchise was conditional upon
the
respondent signing the cession existing between the applicant and
Tomdia. Regarding a renewal of the franchise the applicant’s
attorneys advised as follows:
‘
Our
client has been unable to reach an agreement with you on the
aforesaid basis and we are instructed to inform you that our client
hereby revokes, with immediate effect, any acceptance, agreement
and/or offer of whatsoever nature, contained in any correspondence,
document or communication to and from you, our client or any third
party in regard to the cession or the franchise agreement and
extension of the franchise agreement.’
[10]
It
continued in the letter to remind the respondent once again of the
expiry of the franchise and demanded that the respondent comply
with
the conditions of the acceptance of its application for the Caltex
franchise by returning the completed and signed deeds of
suretyship
and the cession. Eventually, on 28 February 2016, after a delay of
more than a year and a half, the applicant, Tomdia
and the
respondent, concluded the cession with retrospective effect to 1
March 2015. The cession incorporated the franchise which
was to
expire on 31 December 2017.
[11]
By
letter of 29 February 2016, the respondent’s attorneys
undertook to deliver the signed cession and franchise by close of
business that day. However, their letter also recorded that the
respondent had advised that the applicant had agreed to grant the
respondent tenure for five years with an option to renew.
Significantly that letter made no mention of the key money of R3 250
000.
[12]
On 30
June 2017, the applicant again reminded the respondent that the
franchise would terminate on 31 December 2017. The respondent’s
attorneys responded on 26 July 2017, dismissing that letter as
‘nonsensical’, because, they alleged, the applicant
had
concluded an agreement granting a franchise for five years renewable
for a further five years. As for the upfront payment,
the
respondent’s attorneys indicated that the respondent was
willing to pay that on signature of a franchise agreement on
its ‘5+5
year’ terms. The respondent’s attorneys proceeded to
demand that the applicant provide such a franchise
agreement for the
respondent’s signature.
[13]
In
its letter of 5 October 2017, the applicant’s attorneys
‘strongly denied’ the contents of the respondent’s
attorneys’ letter of 26 July 2017 and referred the respondent’s
attorneys to their letter of 22 February 2016. They
reminded the
respondent’s attorneys that the parties were unable to reach
agreement and had requested an unequivocal undertaking
by 12 October
2017 that the respondent would vacate the premises before 1 January
2018, failing which, the applicant intended to
institute eviction
proceedings.
[14]
On 22
December 2017, the respondent referred the matter for arbitration to
the controller of petroleum products (‘the controller’).
On 29 December 2017, the applicant’s attorneys advised the
respondent’s attorneys of the termination of the franchise
and
requested the respondent to vacate the property by 31 December 2017
when the cession and franchise expired.
[15]
On 12
January 2018, the respondent’s attorneys acknowledged the
applicant’s attorneys’ letter of 8 January 2018
advising
them that the respondent was unlawfully occupying the premises and
seeking an undertaking that it would desist from operating
there and
using the applicant’s equipment and trademark pending this
litigation. The respondent’s attorneys merely
noted the
contents of the letter. Maintaining its position that the franchise
expired on 31 December 2017, the applicant launched
this application
on 15 January 2018.
[16]
The
principal relief sought by the respondent in its counter-application
was an order directing the applicant to provide to the
respondent for
its signature, a franchise agreement substantially the same as
Chevron’s Standard Franchise Agreement in use
in 2015 and 2016,
as well as the following declarators: that the respondent enjoyed the
right to continue conducting business on
the premises for five years
from 1 March 2015, with the right to renew until 1 March 2025; that
the respondent should pay the applicant
rent and other fees due by a
franchisee calculated on the basis of the standard Chevron Agreement;
that in terms of
s 51
of the
Consumer Protection Act 68 of 2008
, the
applicant was prohibited or not entitled to charge a brand fee,
royalty or key money in consideration for a franchise agreement
with
the respondent; that such stipulation was void and severable from the
remaining terms of the franchise agreement between the
parties;
alternatively, that upon production of the written franchise
agreement the respondent should pay the applicant the brand
fee in
the sum of R3 250 000. The respondent also sought an order dismissing
or staying the application as it had referred the
matter to
arbitration in terms of
s 12B
of the PPA and arbitration clause 20 of
the franchise.
[17]
I
will investigate the existence of the alleged renewal agreement
before considering the referral to arbitration under
s 12B
of the PPA
and the request for arbitration under clause 20 of the franchise.
[18]
From
the outset, engaging with the respondent was ‘a problem’
which the respondent itself acknowledged. The respondent
failed to
comply with the conditions of the cession. After protracted
discussions and negotiations, on 28 February 2016, the respondent,
on
advice from its attorneys, eventually signed the cession without
prejudice to its right to rely on a ‘5 + 5 year’
renewal,
simply to enable it to continue in business until the expiry of the
franchise.
[19]
No
renewal agreement could have come into force. On the respondent’s
own version it could not make payment of the brand fee
because the
franchise agreement that the respondent had hoped to conclude with
the applicant
‘
could
have included clauses which might have deprived the respondent of
disposing of its goodwill or the business with the consequence
that
it might end up losing its entire investment, in circumstances where
it, in effect, had nothing to cede’.
Despite
its ‘nagging’, no renewal franchise agreement on the
respondent’s terms ever materialised from the applicant.
Following its demand of 26 July 2017, the respondent took no steps to
enforce its alleged rights until its referral to arbitration.
[20]
Contrary
to the submission by counsel that it was common cause that ‘the
respondent would pay to the applicant the upfront
brand fee’
this was not borne out by the evidence. In fact, the submission was
contradicted by the respondent’s prayer
in its conditional
counter-application for an order declaring that the applicant was
prohibited from or not entitled to, charge
a brand fee in
consideration for a franchise agreement and that such stipulation was
void or severable from the remaining terms
of the franchise. The
alternative remedy directing the respondent to pay the brand fee
amounts to a belated tender to fulfil its
obligation under the
purported renewal agreement. This too fortifies the applicant’s
case that no renewal agreement extending
the franchise was concluded
because the respondent failed to fulfil its obligation to pay the
brand fee that the applicant insisted
upon.
[21]
In
the circumstances I find that the parties did not conclude any
agreement to renew the franchise beyond 31 December 2017.
[22]
With
regard to arbitration under
s 12B
of the PPA, the issue is the impact
of the referral on this litigation and whether, on a sensible
interpretation
[3]
of the PPA
applied to the facts of this case, a stay of the litigation would be
justified. As for the proper interpretation of
the PPA, in
The
Business Zone 1010 CC t/a Emmarentia Convenience Centre v Engen
Petroleum Ltd & others,
[4]
the
Constitutional Court (‘CC’) endorsed the jurisprudence
that the words in a statute must be construed in accordance
with
their ordinary grammatical meaning, avoid an absurdity, and ‘must
be interpreted purposively and be properly contextualised’.
[23]
Arbitration
under
s 12B
of the PPA strikes a balance between processes that are
compulsory and others that allow for flexible self-regulation. Making
this
distinction helps with analysing the powers of the arbitrator
and therefore, with distinguishing issues for arbitration from
litigation.
[24]
Arbitration
is triggered once the controller receives a request from a licenced
retailer alleging an unfair or unreasonable contractual
practice by a
licensed wholesaler or
vice
versa.
The controller has little discretion but to notify the parties to
submit the matter to arbitration.
[5]
The threshold to invoke arbitration is pitched as low as a mere
allegation of unfairness or unreasonableness.
[6]
The decision to refer a matter to arbitration is voluntary but the
obligation to attend and participate in it is compulsory if
a party
wishes to avoid adverse consequences.
[25]
The
parties may choose their arbitrator and agree on the rules of the
arbitration.
[7]
If they fail to
agree on either of these issues, the controller must appoint a
suitable arbitrator who will then determine the
rules of
arbitration.
[8]
Such rules are
merely procedural to lay the groundwork for how the arbitration will
be conducted.
[26]
Under
s 12B(4)
of the PPA, the substantive powers of the arbitrator are
limited as follows:
‘
(4)
An arbitrator contemplated in subsection (2) or (3)—
(a)
shall determine
whether the alleged contractual practices concerned are unfair or
unreasonable and, if so, shall make such award
as he or she deems
necessary to correct such practice; and
(b)
shall determine
whether the allegations giving rise to the arbitration were frivolous
or capricious and, if so, shall make such
award as he or she deems
necessary to compensate any party affected by such allegations.’
Subsection
(4)
(a)
defines the scope of the arbitrator’s powers within which the
referring party must frame the terms of reference. Considering
that
any party can refer a matter to arbitration, it should be permissible
for the parties to also agree to the terms of reference.
The power of
the arbitrator is to determine whether contractual practices are
unfair or unreasonable and to correct them.
[9]
It is limited by ‘contractual practices’ and broadened by
an expansive, purposive interpretation of ‘unfair or
unreasonable’.
[10]
[27]
Although
the range of corrective measures seems open-ended, it will be bounded
by all the principles that constrain adjudicators’
decisions
generally, not least the presumption of legality of legislation
(
omnia
praesumuntur rite esse acta
)
[11]
and rationality as an incidence of the rule of law.
[12]
Additionally, overarching notions of justice, reasonableness,
limitations imposed by other rights, such as freedom and individual
autonomy to contract, decisional efficacy, effectiveness and
enforceability, and so on, must inform the arbitrator’s award.
So too must the prohibition against forum-shopping.
[28]
Implicit
in the scope of the arbitrator’s powers must be the presumption
that the legislature, acting rationally and reasonably
in designing a
bespoke dispute resolution system for the petroleum industry, had no
intention to encourage forum-shopping by duplicating
or bestowing
powers of other institutions like the courts and chapter nine
institutions upon arbitration under
s 12B
, and
vice
versa
.
Recently
the Supreme Court of Appeal reminded ‘[f]orum-shopping is to be
discouraged’.
[13]
The
CC expressed its disapproval thus:
‘
Forum-shopping
between these two different systems of law applied in different
institutions will disappear.’
[14]
[29]
Demarcating
the jurisdiction and powers of
s 12B
arbitration will depend, case by
case, on how parties, in particular a referring party, frame the
terms of reference. The voluntary,
self-regulatory aspects of
arbitration allow the parties to include or exclude any matter in the
terms of reference for the arbitrator’s
determination. If the
parties cannot agree, then the jurisdiction and powers of the
arbitrator would be governed by
s 12B(4)
of the PPA. Consequently,
the CC observes:
‘
Section
12B
arbitration presents an additional route for licensed retailers
and wholesalers alike to have their disputes adjudicated quicker
within rules and processes of their own design.’
[15]
(Footnote
omitted)
[30]
Business
Zone
was
the CC’s first judgment on the interpretation of
s 12B
‘in
order to establish legal certainty in a large and regulated sector of
the economy’
.
[16]
Given the unequal bargaining power in the petroleum industry and the
standard for referral to arbitration being pitched as a mere
allegation of ‘unfair or unreasonable contractual practice’,
the CC found a ready substratum in the jurisprudence of
the Labour
Relations Act 66 of 1995 (‘the LRA’) and its 1956
predecessor. Labour jurisprudence garnered meaning for
the words
unfair, unreasonable and practice as it evolved from about 1981.
[17]
This comparison led the CC to conclude that ‘the fairness
required in our labour law jurisprudence is the same as the fairness
in section 12B’.
[18]
And
further, to observe that the unfair labour practice remedy included
reinstatement of a contract of employment either by a court
or
tribunal.
[19]
Similarly the
Rental Housing Act 50 of 1999 (‘the RHA’) imported an
unfair practice jurisprudence to rebalance the
relationship between
powerful landlords and their vulnerable tenants.
[20]
[31]
The
LRA and the PPA regulate arbitration conducted under those statutes
respectively. Arbitrators have no more power than what the
statutes
or the parties’ agreements bestow upon them. Thus, whereas the
LRA allows arbitrators to award reinstatement for
unfair breaches of
employment contracts under strictly prescribed conditions, no power
of reinstatement is expressly prescribed
in the PPA. It remains to be
seen whether such a power can be interpolated.
[32]
That
an arbitrator has powers of determining the fairness and
reasonableness of contracts is commendable insofar as the
context-specific
considerations of the petroleum industry would
inform the meaning to be given to unfair and unreasonable contractual
practices.
Whether an arbitrator’s powers goes beyond declaring
a practice to be unfair or unreasonable to creating new contracts for
the parties, is doubtful in view of the constitutional right to
individual freedom to contract; after all, the courts have no powers
to create contracts for parties; nor can they refuse to give effect
to agreements if, in the opinion of the court, they are unfair
or
unreasonable.
[21]
[33]
A
push-pull tension between freedom and constraint similar to
subsection (4)
(a)
is also built into subsection (4)
(b)
.
The arbitrator’s apparently wide power ‘to compensate any
party’ is restricted to ‘frivolous or capricious’
allegations and only against those who make them to give rise to the
arbitration. An arbitrator is expressly allowed to impose
a
compensation award against a party for frivolous or capricious
referrals. In the absence of any similar power to award compensation
as a substantive remedy for unfair or unreasonable contractual
practices,
[22]
it would be a matter of interpretation of the PPA and the facts of a
particular case, whether an award of compensation would be
an
effective remedy to correct a practice. This is confirmed in the CC’s
holding that ‘the arbitrator’s remedial
powers can go no
further than correcting the contractual practice in question.’
[23]
[34]
Whether
arbitration becomes the process of choice instead of adjudication as
the CC seems to anticipate,
[24]
will depend very much on co-operation and efficiencies within the
industry. Ultimately the degree of consensus about the choice
of
arbitrator, the rules of arbitration and the terms of reference for
arbitration will determine the usefulness and integrity
of the s 12B
dispute system design.
[35]
An
arbitrator’s award is final and binding on the parties and may
include any order as to costs.
[25]
Whatever the powers of the arbitrator are, be they agreed or
determined by interpretation, they have to be carefully crafted given
the finality and enforceability of valid arbitration awards.
[36]
Business
Zone
is
distinguishable from this case on several fronts. The CC interpreted
s 12B in the context of an application to review the decisions
of the
controller and the Minister of Minerals and Energy not to refer an
alleged unfair or unreasonable contractual practice to
arbitration.
Business
Zone
also identified three distinct claims for unfair or unreasonable
contractual practices. The first related to access points to the
site, the second to Engen’s failure to consent to certain
alterations and the third to Engen’s conclusion of the lease
agreement with a chicken franchisee during the subsistence of its
agreement with Business Zone without the latter’s consent.
None
of these claims involved ejectment or declarators to establish a
renewal agreement. Nor did the CC order a stay of the litigation
pending in the high court.
[37]
Arbitration
under s 12B does not automatically suspend litigation. An agreement
to arbitrate entitles a party to apply to the court
for a stay of
litigation. Section 12B arbitration is regulated under the PPA; it is
not one arising from an arbitration agreement
governed by the
Arbitration Act 42 of 1965
which prescribes the procedure for a stay
of litigation. Nevertheless, courts may stay litigation pending the
outcome of a
s 12B
arbitration, subject to such terms and conditions
as may be considered just in the general exercise of their powers to
regulate
their own process.
[26]
What
s 12B
arbitration is not, is a stratagem to delay litigation, or
to have two bites at the cherry. The finality of arbitration awards
and the risk of punitive cost awards aim to discourage abuse of
arbitration.
[27]
[38]
Future
Phambili
Petroleum
(Pty) Ltd v Chamdor Service Station CC
[28]
is
also distinguishable. In that case eviction emanated from on-going
disputes between the parties, which could not be separated
from the
issues referred to arbitration. Furthermore, the parties were bound
by an agreement to refer to arbitration and there
was ‘no harm’
in staying the proceedings to give effect to
s 12B.
[29]
[39]
In
this case, in its referral for arbitration in terms of
s 12B
, the
respondent complained of the applicant being unfair and unreasonable
in various respects, ranging from the stipulation of
the royalties to
failing to provide the respondent with ‘the balance of the
franchise agreement ceded to it’. Nowhere
in the referral did
the respondent indicate what findings and remedies it sought from the
arbitration. Nor did the respondent challenge
the applicant’s
ownership of the premises, request an award refusing or suspending
its eviction from the premises, declaring
that the parties concluded
a renewal agreement, or, directing the parties to conclude one. In
the absence of a request to the arbitrator
in the terms of reference,
to pronounce on the applicant’s rights of ownership of the
premises and to evict the respondent
who occupies against the
applicant’s will, no findings or remedies on these aspects can
be anticipated from the arbitration.
Conversely, nothing in my
judgment trenches on the arbitrator’s powers to determine the
unfairness and unreasonableness of
the royalty stipulations and other
matters falling within the scope of the arbitrator’s powers.
[40]
My
approach to the referral is that
s 12B
arbitration is a discrete
process, parallel to this litigation. I have not been addressed on
any authority that would result in
the award trumping the order in
this application for restoration of a real right to its lawful owner.
In the circumstances, I dismiss
the application for a stay pending
the outcome of the
s 12B
referral to arbitration.
[41]
The
respondent relied on clause 20 of the franchise which provided for
negotiation, mediation and expedited arbitration should ‘any
dispute arise between the parties concerning
this
agreement’ (my underlining). ‘This’ agreement
referred to the franchise about which there was no dispute. The
dispute turned on the respondent’s alleged renewal franchise
agreement, which, as I have found above, never materialised.
The
application for a stay on this ground must also be dismissed.
[42]
The
respondent’s reliance on the
Consumer Protection Act was
misplaced as that act was not available for the protection of the
respondent as a juristic entity with a turnover that exceeded
the
statutory minimum prescribed in that act. Counsel for the respondent
correctly abandoned this point.
[43]
As
for costs, this area of law is novel; awarding costs on a punitive
attorney and client scale could have a chilling effect on
the
development of the jurisprudence. Furthermore, the aims of the PPA
and
s 12B
in particular, encourage inclusivity by levelling the
disparities amongst participants in the petroleum industry. An award
of costs
that includes the costs of two counsel is sufficiently
punitive.
[44]
I
grant the following order:
(a)
The
main application succeeds and the counter-application is dismissed.
(b)
The
respondent is directed to forthwith vacate the applicant’s
premises described as Sub 27 of Lot 2725, Pietermaritzburg,
KwaZulu-Natal, physically situate at 238 Albert Luthuli Street,
Pietermaritzburg.
(c)
The
respondent shall pay the applicant’s costs, including the costs
of two counsel.
_________________
D. Pillay J
APPEARANCES
Counsel
for the applicant: G. Harpur SC
Instructed
by: Norton Rose Fullbright SA Inc
Tel:
031 582 5642
Ref:
ALL1218
c/o
Venns Attorney
033 355
3100
Counsel
for the respondent: J. Marais SC
Instructed
by: Kobus Swart & Company
Tel:
(031) 303 3597
Ref:
KS/AH/01/Bentz
Date
of Hearing: 15 June 2018
Date
of Judgment: 10 July 2018
(Handed
down electronically with parties’ consent)
[1]
Rhoode
v De
Kock & another
2013 (3) SA 123
(SCA) para 23.
[2]
Rule 18(6) of the
Uniform Rules of the High Court.
[3]
LM Du Plessis
‘Statute Law and Interpretation’ in Joubert and Farris
(eds)
Lawsa
(2ed) vol 25(1) (31 March 2011) para 342;
FirstRand
Bank Ltd v KJ Foods CC
2017 (5) SA 40
(SCA) para 75.
[4]
The Business
Zone 1010 CC t/a Emmarentia Convenience Centre v Engen Petroleum Ltd
& others
2017
(6) BCLR 773
(CC) para 46.
[5]
See s 12B where
it states: ‘The Controller of Petroleum Products may on
request by a licensed retailer alleging an unfair
or unreasonable
contractual practice by a licensed wholesaler, or
vice
versa
,
require, by notice in writing to the parties concerned, that the
parties submit the matter to arbitration.’
[6]
Business Zone
fn4
para 62.
[7]
Section 12B(2)
states: ‘An arbitration contemplated in subsection (1) shall
be heard —
(a)
by an arbitrator chosen by the
parties concerned; and
(b)
in accordance with the rules agreed
between the parties.’
[8]
Section 12B(3)
states: ‘If the parties fail to reach an agreement regarding
the arbitrator, or the applicable rules, within
14 days of receipt
of the notice contemplated in subsection (1) —
(a)
the Controller of Petroleum Products
must upon notification of such failure, appoint a suitable person to
act as arbitrator; and
(b)
the arbitrator must determine the
applicable rules.’
[9]
Business Zone
fn4 para 63.
[10]
Business Zone
fn4
paras 46, 59-60, and 93.
[11]
DT Zeffertt and
AP Paizes (formally Hoffmann and Zeffert)
The
South African Law of Evidence
3ed (2017) at 225-226; Lawsa fn6 para 342;
Boddington
v British Transport Police
[1998] UKHL 13
;
[1998] 2 All ER 203
at 210; see also
Merafong
Demarcation Forum & others v President of the Republic of South
Africa & others
[2008] ZACC 10
;
2008 (10) BCLR 969
(CC) paras 260 and 284.
[12]
AB &
another v Minister of Social Development
2017 (3) SA 570
(CC) para 283.
[13]
Motor Industry
Staff Association v Macun NO & others
2016 (5) SA 76
(SCA) para 20.
[14]
Business Zone
fn4 para 56.
[15]
Business Zone
fn 7 para 58.
[16]
Business Zone
fn4 para 36.
[17]
Business Zone
fn4 paras 47-51.
[18]
Business Zone
fn4
para 49.
[19]
Business Zone
fn4 para 50.
[20]
Business Zone
fn4 paras 51 and 53.
[21]
Barkhuizen
v Napier
[2007] ZACC 5
;
2007
7 BCLR 691
(CC);
2007 5 SA 323
(CC) par 82); Brisley v Drotsky
supra pars 22 93;
Afrox
Healthcare Bpk v Strydom
2002 4 All SA 125 (SCA).
[22]
Business Zone
fn paras 62-63.
[23]
Business Zone
fn para 92.
[24]
Business Zone
fn4 para 56.
[25]
Section 12B(5)
states: ‘Any award made by an arbitrator contemplated in this
section shall be final and binding upon the
parties concerned and
may, at the arbitrator’s discretion, include any order as to
costs to be borne by one or more of
the parties concerned.’
[26]
Section 173 of
the Constitution.
[27]
Business Zone
fn4 para 58.
[28]
Future
Phambili
Petroleum
(Pty) Ltd v Chamdor Service Station CC
(82577/2015)
[2017] ZAGPPHC 1206 (10 November 2017).
[29]
Future
Phambili
fn30 paras 37 and 41.