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[2008] ZAWCHC 70
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Abrahams and Another v R.K. Komputer SDN-BHD and Others (7893/2008) [2008] ZAWCHC 70; 2009 (4) SA 201 (C) (9 December 2008)
REPORTABLE
JUDGMENT
IN THE
HIGH COURT OF SOUTH AFRICA
CAPE OF GOOD HOPE
PROVINCIAL DIVISION
CASE NO : 7893/2008
In the matter between:
SIHAAM ABRAHAMS
First
Applicant
TRANSLOGIC STRATEGIC
SYSTEMS
(PTY)
LTD
Second Applicant
and
R.K. KOMPUTER
SDN-BHD
First
Respondent
ISMAIL JAMIE SC
Second
respondent
ERIC DANE
Third Respondent
________________________________________________________________
Counsel for the
APPLICANTS :
Adv
A Albertus SC
Instructed
by :
Albertus
Attorneys, Cape Town
Counsel for the
RESPONDENT :
Adv
J Josephson
Instructed
by :
Norman
Sher & Associates
Date of hearing
:
4
December 2008
Date
of Judgment : 9 December 2008
Reportable
Of interest to other
judges
1
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
Case No. 7893/2008
In the matter between:
SIHAAM
ABRAHAMS
First Applicant
TRANSLOGIC STRATEGIC SYSTEMS
(PTY)
LIMITED
Second Applicant
and
R.K.
KOMPUTER SDN-BHD
First Respondent
ISMAIL
JAMIE SC
Second Respondent
ERIC
DANE
Third Respondent
JUDGMENT
4, 9 December 2008
Review of arbitration appeal award - section
33(1) of
Arbitration Act, 42 of 1965
–
“misconduct” and “gross irregularity” alleged
on basis that appeal arbitrator who prepared award
“failed to
source findings in the evidence”, and that findings therefore
mala fide or motivated by ulterior or improper
purpose - second
appeal arbitrator alleged to have followed approach of co-arbitrator
“slavishly and uncritically”
- whether in any event award
vitiated by reasonable perception of bias –waiver of bias -
punitive costs order.
GAUNTLETT, AJ:
The arbitral and review proceedings
This is a review under the Arbitration Act, 42 of 1965 (“the
Act”) of an award by an arbitration appeal tribunal.
The arbitration proceedings arose from a
contractual dispute between the first respondent and the first
applicant. In July 2005,
the first respondent instituted action
against the first applicant in this court, claiming payment of the
sum of R3 469 527,00
against a tender by the first respondent to the
first applicant of shares which the former held in the second
applicant. The first
applicant triggered an arbitration. She did so
by raising a special plea that the matter should have been referred
to arbitration.
The parties then agreed to do that. In this
process, the parties exchanged the names of potential arbitrators for
consideration:
the first respondent put forward five names, including
that of the third respondent. In response the first applicant put
forward
the name of the second respondent. As a result of their
unavailability on the agreed date for the commencement of the
arbitration,
another senior counsel was selected as the arbitrator at
first instance.
He dismissed the first applicant’s claims.
Thereupon the parties again exchanged names, ultimately agreeing that
the second
and third respondents should be appeal arbitrators. The
second respondent is a senior counsel and the third respondent a
junior.
In March this year, the
appeal arbitrators handed down an award dismissing the appeal.
Unusually it was not presented as a joint award but as an award
by
the third respondent, the second respondent stating his concurrence.
It comprises a detailed analysis of issues, dealing at
some length
with the applicants’ argument, rejecting aspects of the
argument for the first respondent, and not upholding
the reasoning of
the arbitrator at first instance in all respects.
The basis for the review
The review has been instituted by the first applicant (the second
applicant has ceased trading). The second and third respondents
abide
the result, but have filed affidavits responding to the allegations
made against them.
In seeking the review of the appeal award,
the first applicant relies upon both misconduct and gross
irregularity in the conduct of the arbitration proceedings. She
invokes
in this regard section 33(1)(a) and (b) of the Act,
respectively. In argument her counsel
(dealing with his reliance on gross irregularity) acknowledged that
mistakes of law or fact
are not
per
se
bases
for setting aside an arbitration award.
1
But his
argument was that a gross or manifest mistake which establishes
mala
fides
or partiality is enough to
warrant interference.
2
He explained that the approach that he would adopt, in relation to
the facts of this matter, would invoke the
judgment
of Ngcobo J in
Sidumo v Rustenberg Platinum Mines
Ltd
3
.
This (following the distinction indicated by Schreiner J in
Goldfields Investments Limited v City
Council of Johannesburg
4
,
emphasises that patent irregularities in the conduct of proceedings
are to be distinguished from latent irregularities - which
are
irregularities taking place inside the mind of the adjudicator, and
only ascertainable from the reasons given by him or her.
That
exercise
“
[
w
]
ill
inevitably require the reviewing court to examine the reasons given
for the award. In doing so the reviewing court must be
mindful of
the fact that it is examining the reasons not to determine whether
the conclusion reached by the commissioner is correct
but whether the
commissioner has committed a gross irregularity in the conduct of the
proceedings
”
.
5
Thus the argument amounts to these successive
contentions: the appeal award was vitiated by irregularities; these
were latent, not
patent; they are to be detected in the reasons given
in the award; these reasons are insufficiently supported by the
evidence;
from this disjunct a gross irregularity is to be construed.
That alleged irregularity takes a somewhat different form (as will
shortly be considered) in the case of each of the two appeal
arbitrators.
The reliance on misconduct, in the alternative to
gross irregularity, accepted that for its purposes, too, mistake is
not enough.
In current South African law,
6
a flawed award constitutes misconduct “
only
if the mistake is of so gross and manifest a nature that it
demonstrates moral turpitude in the sense of dishonesty, partiality
or bad faith
”
.
7
This, counsel said, was indeed his case.
A third basis of review was advanced: a reasonable perception of
bias, in circumstances explained below.
The two contractual claims
:
gross irregularity or misconduct in their adjudication upon appeal
?
What was at stake in the arbitration proceedings
were two claims instituted by the first respondent against the
applicants. The
first (claim A, as it has been termed throughout)
related to the exercise of a “put option”, arising from
an agreement
between the first respondent and first applicant. The
second (claim B) related to an agreement involving the redemption by
the
first respondent of certain redeemable preferen
ce
shares in the second applicant.
On appeal, the appeal arbitrators were called upon
to determine three issues in relation to claim A: whether an alleged
breach of
an obligation to furnish financial statements constituted a
material breach
, in the sense that it had
an adverse and material impact on the second applicant; whether there
was complicity by the first respondent
in the alleged breach; and
whether the first respondent had waived its right to exercise the
“put option” in the light
of the agreement relating to
the redemption of shares.
On the first aspect, the review attack was
two-pronged. As regards the third respondent, it was that he “
failed
to source his findings in the evidence [and that] his failure to do
so leads to the conclusion that his findings was [sic]
‘mala
fide’ or motivated by an ulterior or improper purpose
”.
As regards the second respondent, the “
inference
is irresistible that [he] uncritically and slavishly went along with
the final award...
”.
What happened in the preparation of the award was
less usual in two respects. The first, as already noted, is that
instead of the
usual joint award for the appeal tribunal, the award
was presented as one written by the third respondent and concurred in
by the
second. The other is that the second respondent attached to
his answering affidavit a first draft of the appeal award (of which
the first applicant had been unaware at the time she determined to
institute this review, and which accordingly is not relied on
in her
founding affidavit). In handwritten notes on the draft prepared by
the third respondent, the second respondent indicated
that he
disagreed in relation to the question as to whether an adverse effect
– the first of the three sub-issues in respect
of claim A,
described above - was established on the facts. His detailed
note
ends thus:
“
Sorry my friend but unless we can
reach consensus I will have to write a short dissent. Let me have
your thoughts. I think the
award is well considered and written up
to para 41 by the way. Ismail
”.
What transpired in
preparing
and finalising the appeal award is the subject of explanatory
affidavits by the two appeal arbitrators. The filing of
these
affidavits is explicable given the allegations. They record that the
third respondent at the end of the hearing had formed
no clear view
in the matter either way. The second respondent was inclined at that
stage to uphold the claim in relation to claim
A, but like the third
respondent, saw no merit at all in the appeal relating to claim B.
The two appeal arbitrators met to discuss
their divergent preliminary
views, and debated the proposed award. As the second respondent
testifies,
“
After considering the issues raised by me the third
respondent and I met again on at least two occasions in order to
discuss the
matter. After these meetings I, and I presume he,
considered the different portions of the record to which we had
referred each
other, and which had been raised in our discussions.
I was finally satisfied that the third respondent to claim A,
we being in agreement that the appeal in respect of claim B had no
merit, was correct and I just signed the appeal award on or about 3
April 2008".
In his own affidavit (which, it is evident, was
separately prepared), the third respondent similarly testifies to the
fact that
the draft rested on his understanding of the evidence and
argument; that he considered the initially contradictory views of the
second respondent, debated these with him; that it was agreed that
the third respondent was, after all, correct, in
his approach.
This explanation was the subject of vigorous
attack by the first applicant’s counsel. He contended that “
it
behoved the second respondent to have indicated in his answering
affidavit exactly which parts of the evidence he had been referred
to
by the third respondent which ultimately satisfied him that the third
respondent’s findings were indeed sourced in the
record
”.
He similarly castigates the third respondent also for failing to
offer chapter and verse to demonstrate that his findings
were
“
sourced in the evidence
”,
and contends that “
his failure
to do so leads to the conclusion that his findings was [sic] ‘mala
fide’ or motivated by an ulterior or
improper purpose
”.
The second respondent is himself charged with perpetrating a gross
irregularity or misconduct on the separate basis that
he “
slavishly
and uncritically
” followed
the third respondent, “
simply
abandoning his former appraisal of the question under consideration
without any evidential basis
”.
I disagree: indeed, the argument disregards the
explanations offered under oath by the two appeal arbitrators,
summarised above.
When this was put to counsel, together with the
application of the general rule in motion proceedings the response
was that their
versions fell to be rejected, on motion, as so
“
far-fetched or clearly
untenable
” that this could
appropriately be done.
8
The submission is insupportable. Whether the award is right or
wrong in this respect, it is detailed, considered and reasoned.
As
regards the attack on the second respondent, his explanation points
to the very contrary conclusion: he held an initial contrary
view,
which is documented and reasoned in his handwritten notes on the
draft appeal
award, but was persuaded after debate that the
contrary view, also documented and reasoned, in the draft award
itself, was correct.
That approach is hardly to be described as
“
slavish and uncritical
”.
As regards the attack on the third respondent, it is not evident to
me that his conclusions are not “
sourced
in the evidence
”, to the
extent they are required to be (in the nature of things, some entail
interpretation and other mixed issues of law
and fact, others entail
mere legal reasoning). In my judgment, the attack is, in truth,
obliquely but patently appellate: in substance
it amounts to the
contention that the award is not in all respects supported by the
facts. The artificial bridge then contrived
from appeal to review is
that the appeal arbitrators did not consider all the facts, because
these are not all rigorously iterated
in the award. Even as an
appeal test, that would have been misguided.
9
The two appeal arbitrators exercised their
jurisdiction: whether they went wrong, or were right, they acted
honestly in the scope
of their mandate. The attack
s
in this regard are without merit; they show little regard for first
principles.
As regards the complicity issue – the second
sub-issue in relation to claim A - this turns on the construction of
a resolution
adopted at a shareholder’s meeting. The founding
affidavit contends that the plain wording of the resolution “
screamed
for a finding
” in her favour
– to which the appeal arbitrators unfortunately were deaf, as
before them the arbitrator at first instance
had been. The argument
advanced on behalf of the first applicant in this regard, at
considerable length, is - down to the dictionary
definitions essayed
– indeed exactly that
which was advanced
first
before the arbitrator then before the appeal arbitrators and again in
the founding affidavit in this application. How untenable
it is as a
review ground is exemplified by the submission in argument on behalf
of the first applicant that
“
[i]nstead of seeking by linguistic
treatment to construe the said resolution, the third respondent
slavishly and uncritically regurgitated
the arbitrator’s
finding .... Had the third respondent independently attempted to
construe the resolution [he would have
come to a different
conclusion]..... Given the fact that the third respondent was aware
that the construction of the resolution....was
an issue which had to
be addressed by him, his failure to do so amounted to a gross
irregularity, alternatively misconduct....alternatively,
to denial of
a fair hearing in terms of section 34 of the Constitution
”.
The argument
again
disregards the most basic principle and the clearest authority. The
construction of written instruments of this kind is fundamental
to
commercial arbitration. The attack is once more transparently
appellate. A sense of certainty, or moral indignation, felt
in
relation to the need for the resolution in question to be interpreted
“linguistically” has been stretched to an
egregious
allegation of gross irregularity or misconduct. From the contended
wrongness is inferred
mala fides
- as counsel was prepared to paraphrase this, a deliberately wrong
interpretation - as being the basis for the review sought. There
is
no basis for this contention.
As regards claim B, the appeal arbitrators were,
as has been noted,
ad idem
with the arbitrator that this had no merit. The refrain again is
that the third respondent did not “
source
his findings in the evidence
”.
His conclusion moreover is attacked in one respect as “
factually
incorrect
” and in another, as
“
[ignoring] the evidence
”.
Again the second respondent is
attacked for “
slavish
”
adherence. For the reasons already given, these attacks are
fundamentally misconceived: the facts belie them, and the threshold
tests for neither gross irregularity nor misconduct are met.
Bias
Counsel for the first applicant contended lastly
for bias, or a reasonable perception of bias, on three bases: an
“
apparent friendship
”
between the third respondent and the first respondent’s
counsel; a question put by the third respondent in the course
of the
proceedings to the first respondent’s counsel as to what he
submitted should be done if the appeal arbitrators could
not agree on
the fate of the appeal; and his treatment of the issues on appeal in
the respects already identified.
The test for a reasonable perception of bias
requires to be more closely considered than the manner in which it
was advanced on
behalf of the first applicant. The authorities in
English law have been aptly described by Lord Goff of Chieveley as
“
not only large in number but
bewildering in their effect
”.
10
South African case-law has aimed at greater consistency and
simplicity.
11
In the formulation by the Constitutional Court (cited with approval
by the Court
of Appeal in England
12
and, among fellow SADC members, the Courts of Appeal of Swaziland
13
and Lesotho,
14
“
[t]he question is whether a
reasonable, objective and informed person would on the correct facts
reasonably apprehend that the judge
has not or will not bring an
impartial mind to bear on the adjudication of the case….”.
15
I
n the
SARFU
case the court dismissed claims of reasonable perceptions of bias
based
inter alia
on contacts of various kinds in the past between members of the Bench
and the appellant, then President N.R. Mandela: had any reasonable
person known the accepted facts, these could not form the basis of a
reasonable apprehension of bias. The standard of what has
aptly been
termed “
double-reasonableness
”
patently would not be met. Similarly where an adjudicator had not
spoken for a period of some eight years to a principal
witness with
whom he had social connections, the Privy Council held that a
perception of bias could not arise.
16
I
turn now to apply this
test to the three factual components of the alleged bias.
As regards the contended “
apparent
friendship
”, this arises from
the fact that the third respondent asked the first respondent’s
counsel to send his regards to the
first respondent’s
children. This took place at the end of the
entire appeal hearing.
The pleasantries
were heard by the first applicant, but not by her legal team. The
first applicant suggests that this indicates
a close connection
between the two, which had not been disclosed.
In my view, there are two answers which are dispositive of this
attack.
The first is that the facts are that there is no
close friendship between the two at all. The first respondent’s
counsel
and the third respondent had, by happenstance, been tenants
in the same corridor in chambers in Johannesburg for a period of four
years - ending 29 years ago. They have not seen each other for a
period of nearly ten years, save for a brief meeting by chance
at an
airport about six years ago.
In my view, these facts, which - applying the test
for a reasonable perception of bias - are to be taken to be known,
form no basis
for the contended perception at all. As the first
respondent’s answering affidavit notes, counsel for the first
applicant
and the arbitrator of first instance (nominated by the
first applicant as arbitrator) are colleagues of long-standing and
practise
on the same floor in chambers. Plainly those facts would
have founded no reasonable apprehension of bias on the part of the
first
respondent (which did not object at the time to the nomination
by the first respondent). The same applies to the professional
acquaintance
of the third respondent and the first respondent’s
counsel.
The second answer is that the first applicant
testifies that, while concerned at the time by the pleasantries, she
“
did not think it appropriate
at that stage to mention any of this to my counsel or instructing
attorney
”. It was only when
she received the appeal award that she did so. This is unacceptable.
Either in truth the first applicant
thought too little of the
exchange of pleasantries at the time even to mention these to her
counsel and attorney, or she formed
the perception she suggests but
elected not immediately to raise the alarm. If, as her affidavit
would have it, it is the latter,
it does not avail her now –
disgruntled by the result – to fossick in the procedural ashes
of the proceedings and to
disinter her perception when it suits. An
attack based on bias – with its devastating legal consequences
of nullity
17
is not to be banked and drawn upon later by tactical choice. As the
Court of Appeal in England has put it,
“
It is not open to [the litigant] to wait and see how her
claims…..turned out before pursuing her complaint of
bias…[she]
wanted to have the best of both worlds. The law
will
not allow her to do so”.
18
This is exactly what the first applicant did. The
law cannot permit her, on the facts of the case, th
at
tactic.
As regards the second aspect
,
it was argued that the asking of the question “
assumes
a rather sinister light
”,
because the first respondent’s attorney testifies that he
himself had previously
posed the question to his counsel as to what would
happen if the two-man tribunal were to disagree. “
The
question then arises
”, it was
argued for the first applicant, “
whether
the third respondent in posing the question as he did had done so
purely fortuitously or after a discussion with either
of the first
respondent’s legal representatives
”.
The submission has no factual grounding in either
the founding or replying affidavit. Had the allegation been made
pertinently,
it would no doubt have been answered pertinently. The
suggestion - entailing as it does, profound professional misconduct
- required
to be made expressly. The principle and the authorities
in this regard are, it might be thought, clear.
19
To be treated similarly is an allegation in reply
- fastening on a statement by the third respondent in his affidavit
that for a
number of years he had not seen or spoken to the first
respondent’s counsel “
other
than relating to this matter
”.
This (counsel for the first respondent argued in reply) supports the
assertion now made in the replying affidavit “
that
they may have discussed the merits of the matter
”.
The attempt to “
piece that case
together out of statements in the…answering affidavit
”
20
is objectionable and is in any event again contrived. The context of
the third respondent’s answer is clear: an emphatic
repudiation
of any inappropriate contact or communication. His answer is hardly
to be interpreted as a tacit confirmation of the
contrary.
Lastly
, the first
applicant calls in aid the third respondent’s “
treatment
of the issues on appeal
” -
the arguments which I have already addressed regarding the
consideration of claims A and B. For the reasons I have already
indicated, there is in my view no merit in those arguments - and they
gain nothing by being recycled under the rubric of a reasonable
perception of bias. If the arguments are (as I have indicated them
to be) not good in their own right, then – applying the
“
double-reasonableness
”
test outlined above - no reasonable perception can be held that they
are a basis for the perception of bias.
Costs
The first respondent’s counsel sought, in
the event of the review application being dismissed, an order of
costs
de bonis propriis
and
on the attorney and client scale.
There does not seem to me to be a proper basis to order costs to be
paid personally by the first applicant’s legal representatives.
They have not made themselves personally guilty of such actions or
statements in the course of the review proceedings such as
would
warrant such an order to be made personally against them.
As regards the request that a punitive costs order
should be made, the appropriate considerations seem to me to be
these. In the
first place, such an order of costs should require
exceptional circumstances. Simply because a party makes allegations
(in a context
such as the present) of inferred misconduct or
irregularity would in my view not ordinarily make such
an order appropriate, even if the allegations are rejected.
But in the present case, the position is
different. The first applicant has repeatedly alleged in her
affidavits dishonesty on
the part of the third respondent. Thus she
alleges that his approach entailed “
not
a bona fide mistake, but rather a deliberate attempt to obfuscate and
avoid the issue at hand
”; she
describes his reasoning as entailing “
disingenuously
linking
” matters, “
contrived
and disingenuous….he certainly could not have had an honest
belief in his said findings
”;
and, in reply, she reiterates that he “
is
not being entirely frank with this court
”;
she strives to infer (through, as indicated above, the most gossamer
speculation) that the third respondent and first respondent’s
counsel “
may have discussed the
merits of the matter
”; and
she alleges that he “
deliberately
ignored
” a particular matter.
As I have indicated, her counsel (in her presence) continued to
press these conclusions in oral argument
on her behalf to the very
end.
I believe that the court in these circumstances is
required to mark its particular disfavour towards an approach which
impugns in
this way the personal and professional integrity of
practitioners selected by the parties to arbitrate their dispute. The
accusations
are far worse than those in
Hyperchemicals
International v Maybaker Agrichem
,
21
where at least imputations of dishonesty against a particularly
distinguished arbitrator were expressly disavowed.
22
Here the allegations were roundly and repeatedly made.
Whether these strident and multiple allegations
were made tactically, to avoid the danger of dismissal of the review
on the basis that so-called “
legal
misconduct
” does not
suffice,
23
or “
with the most upright
purpose and a firm belief in the justice of [the] cause
”,
24
or simply vindictively, does not avail the first applicant: the
allegations are vexatious, and for that reason call for a special
order as to costs.
The application is dismissed. The first applicant
is ordered to pay the first respondent’s costs on the attorney
and client
scale.
___________________________________
GAUNTLETT AJ
For the first applicant:
A.
Albertus SC
Instructed by:
Albertus
Attorneys, Cape Town
For the first respondent:
J.
Josephson
Instructed by:
Norman
Scher & Associates
No appearances for the second applicant and second and third
respondents
1
Dickinson and Brown v Fisher’s
Executors
1915 AD 166
;
Total Support Management (Pty)
Limited and Another v Diversified Health Systems (SA) (Pty) Limited
and Another
2002(4) SA 661
(SCA) at 670H-672H
;
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA)
;
Lufuno
Mphaphuli and Associates (Pty) Limited v Andrews
[2007] ZASCA 143
;
2008 (2) SA 448
(SCA) at 454E-G.
2
Total Support Management v Diversified
Health Systems (SA) (Pty) Limited
supra 671 to 672
.
3
2008 (2) SA (CC).
4
1938 TDP 511.
5
Sidumo v Rustenberg Platinum Mines Ltd
supra at 112. Put more shortly by Harms JA for the SCA in
Telecordia
Technologies Inc v Telkom SA Ltd
supra, a contended irregularity only amounts to a gross irregularity
in the sense contemplated by section 33(1) of the Act where
the
adjudicator misconceives the whole nature of the inquiry, or his
duties in relation to it. Thus the irregularity must go
– and
go fundamentally – to the
conduct
of the proceedings, not the
merits
.
The merits are only relevant to the extent that they establish
procedural failure.
6
The position is different in the English law of arbitration,
under section 68(2) of the Arbitration Act, 1996: see particularly
Merkin
Arbitration Law
(2004) 858ff.
7
Johan Louw Konstruksie (Edms) Bpk v Mitchell NO
2002 (3) SA 171
(C) at 182H.
8
Cf.
Plascon-Evans Paints (Pty) Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 635C.
9
R v Dhlumayo
1948 (2) SA 647
(A) at 676.
10
R v Gough
[1993] 2 All ER (HL) at 827c.
11
See especially
BTR Industries (Pty) Ltd v Metal and
Allied Workers’ Union
[1992] ZASCA 85
;
1992 (3) SA 673
(A) at
693I-J;
Moch v Nedtravel (Pty) Ltd
1996 (3) SA
1
(A) at 8I;
S v Shackell
2001 (4) SA 1
(SCA)
at 9.
12
Locabail (UK) Ltd v Baysfield Properties Ltd
[2000] 1 All ER 65
(CA) at 76.
13
Minister of Justice v Sapire
(civ. app. 49/01,
10.06.02 (unrep.) 9).
14
Sole v Cullinan
2003 (8) BCLR 935
(LesCA) at
942D-G.
15
President of the RSA v SARFU
[1999] ZACC 9
;
1999 (4) SA 147
(CC)
at 177B-E.
16
Man O’War Station Ltd v Auckland City Council
[2002] UKPC 28.
See too Merkin
op cit
381-2.
17
Council of Review, SADF v Monnig
1992 (3) SA 482
(A) at 495A-D.
18
Locabail (UK) Ltd v Bayfield Properties Ltd
supra
at 76.
Woolf,
Jowell and Le Seur
De Smith’s Judicial Review
(6
th
ed 2007) 10-055 note that “[o]bjection
is generally deemed to have been waived if the party or his legal
representative
knew of the disqualification and acquiesced in the
proceedings by failing to take objection at the earliest practical
opportunity”.
Cf. Craig
Administrative Law
(2008) 425-6.
19
Government of the Province of Kwazulu-Natal v Ngubane
[1996] ZASCA 88
;
1996 (4) SA 943
(A);
Naude v Fraser
[1998] ZASCA 56
;
1998 (4) SA
539
at 563-4. So are the requirements for drawing an inference in
civil proceedings:
Govan v Skidmore
1952 (1) SA
732
(N), approved and applied
inter alia
in
Smit v Arthur
1976 (3) SA 378
(A) at 386. The
argument fails this hurdle too.
20
Administrator, Transvaal v Theletsane
[1990] ZASCA 156
;
1991 (2) SA
192
(A) at 195-7.
21
1992 (1) SA 89
(W).
22
At 94F, 101C.
23
Hyperchemicals International v Maybaker Agrichem
supra at 100B-D;
Johan Louw Konstruksie (Edms) Bpk v
Mitchell NO
supra at 180-3.
24
In re Alluvial Creek Ltd
1929 CPD 532
at 535, per
Gardiner, JP.