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2015
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[2015] ZAGPPHC 968
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Kgopa and Another v Body Corporate of Waleni and Another (85247/2014) [2015] ZAGPPHC 968 (13 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION.
PRETORIA
Case number: 85247/2014
DATE: 13 JULY 2015
In the matter between:
LEOTO JAN
KGOPA
......................................................................................................
First
Applicant
FREEDAH LEGAKILWE NOMTHANDAZO
KGOPA
.........................................
Second
Applicant
And
THE BODY CORPORATE OF
WALENI
.................................................................
First
Respondent
JASPER VAN DER
WESTHUIZEN
......................................................................
Second
Respondent
JUDGMENT
A.A.LOUW J
Introduction
[1] The applicants are co-owners of a
sectional title unit in a sectional title development called Waleni.
[2] A dispute regarding outstanding
levies arose between the applicants and the first respondent, The
Body Corporate of Waleni.
This dispute was referred to an arbitrator,
the second respondent, who is a senior attorney in Pretoria.
[3] The arbitrator made a ruling dated
23 June 2014. This ruling is annexed as “C” to the
founding affidavit. At the
hearing the applicants (who were then the
defendants) met with the first applicant in the arbitrator’s
boardroom and agreed
to payment of R6887.21 as well as 50% of the
arbitrator’s costs. This is common cause on the papers before
me as appears
from the answering affidavit. The applicants did not
deliver a replying affidavit.
The arbitrator’s award.
[4] The applicants only attack the
award in regard to costs. The arbitrator’s ruling in that
regard is that a successful party
is entitled to its costs and the
order in regard thereto appears from para 8 of its ruling which reads
as follows:
“I am therefore of the opinion
that because the legal proceedings were correctly started, that the
plaintiff is entitled to
his taxed attorney and client cost on the
Magistrate’s Court scale A.”
[5] The applicants interpret this order
in the following terms in their founding affidavit:
“6.5. Wherefore it is submitted
that the second respondent was never vested with the ability to order
costs for anything other
than the reference to arbitration and actual
arbitration of a dispute.
6.6. We are further advised and it is
submitted that costs incurred in the reference of a matter to
arbitration are costs that would
be incurred in the drafting and
service of Statements of Claim and the like and that, in the present
case, the costs the first
respondent incurred in connection with the
proceedings in the Magistrate’s Court are not costs connected
with the reference
of the matter to arbitration. It would have been
proper in terms of Rule 71, [of the management Rules of the first
respondent]
to refer the matter immediately to arbitration, thus
rendering the proceedings in the Magistrate’s Court not only
redundant,
but improper. ”
[6] They then proceed to state that in
terms of section 33(1 )(b) of the
Arbitration Act, 42 of 1965
, an
arbitrator’s award may be set aside if the arbitrator has
exceeded his powers. They ask the following relief in the notice
of
motion:
“2. That the arbitration award
granted by the second respondent on 23 June 2014 (hereinafter
referred to as “the award’’)
be reviewed and set
aside in so far as it pertains to the granting of attorney client
costs on Magistrate’s Court Scale A
in favour of the first
respondent, as appears in paragraph 8 of the award on the grounds
that the second respondent exceeded his
power in granting the award
and/or that such award was improperly obtained, pursuant to the
provisions of
section 33(1
)(b) of the Act.”
[7] The applicants take issue only with
para 8 of the award which I have already quoted in para 4 above.
[8] There is no reason on the facts to
believe that the second respondent at all intended to grant costs in
respect of a Magistrate’s
Court action in which the parties are
still involved. This action has nothing to do with the proceedings at
arbitration. The arbitrator
simply used the relevant scale in the
Magistrates’ Court Rules so as to provide the structure in
terms of which taxation
should take place. This is made clear by the
second respondent in his affidavit supporting the first respondent’s
opposition,
more specifically, in para 4 thereof.
[9] In a counter-application the first
respondent asks that the award published by the second respondent on
23 June 2014 be made
an order of court.
[10] There is no opposition hereto as
the applicants did not file any answering affidavit.
[11] I believe that sound grounds exist
for this relief asked by the first respondent.
Application for postponement
[12] At the hearing the applicants
asked for a postponement. No substantive application or affidavit
supported such an application.
[13] On this basis alone, in terms of
well-established practice, it is fatal to the application for
postponement.
[14] In any event
section 33(2)
of the
Arbitration Act reads
as follows:
“An application pursuant to this
section shall be made within six weeks after the publication of the
award to the parties:
Provided that when the setting aside of
the award is requested on the grounds of the commission of an offence
referred to in
Part 1
to
4
, or
section 17
,
20
or
21
(in so far as it
relates to the abovementioned offences) of Chapter 2 of the
Prevention and Combating of Corrupt Activities Act, 2004
, such
application shall be made within six weeks after the discovery of the
offence and in any case not later than three years
after the date on
which the award was so published.” (own emphasis)
[15] This period ended on 4 August
2014. This application was issued as late as 1 December 2014.
[16] The applicants have not given a
satisfactory explanation for the delay. Neither have they shown “good
cause”. I
believe that their application is totally without
merit. The application for postponement therefore has to be refused.
The counter application
[17] As stated above there is no reason
why this relief should not be granted.
Costs
[18] The applicants have brought an
application totally devoid of merit. They did not file a replying
affidavit. Furthermore they
did not answer to the counter
application. The main application was not brought timeously as
required by the
Arbitration Act. All-in-all
, I am of the view that
the application was simply intended to delay payment of the amount
and costs awarded by the arbitrator.
[19] The rules of the first respondent
in any event provide for attorney and client costs. In the premises I
believe that a punitive
costs order on a scale as between attorney
and own client is justified.
Order
[20] I therefore make the following
order:
1. The applicants’ application
for the postponement of the matter is refused.
2. The main application seeking the
review and setting aside of the arbitration award is dismissed.
3. In respect of the first respondent’s
counter application - it is ordered that the award published by the
second respondent
on 23 June 2014, and attached as annexure “C”
to the founding affidavit is made an order of Court.
4. The applicants are ordered to pay,
jointly and severally, the one paying the other to be absolved, the
costs of the application
for postponement, the main application and
the first respondent’s counter application on the opposed
attorney and own client
scale.
A.A. LOUW
Judge of the High Court