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2024
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[2024] ZAFSHC 347
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Senekal v Knipe and Others (2181/2024) [2024] ZAFSHC 347 (29 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case no: 2181/2024
In
the matter between
FREDERICK
JACOBUS SENEKAL
APPLICANT
And
ROBERT PETER KNIPE
FIRST
RESPONDENT
JOHN
DOUGLAS JANSEN KNIPE
SECOND
RESPONDENT
JACQUELINE
MOIRA DEBORA VIGNE
THIRD
RESPONDENT
ANDRE
BAZZETT JANSEN KNIPE
FOURTH
RESPONDENT
CAROL
JESSE KATHLEEN LOTZ
FIFTH
RESPONDENT
CHAVONNES
BADENHORST
ST
CLAIR COOPER N.O
SIXTH
RESPONDENT
SIMON
MALEBO RAMPORORO N.O
SEVENTH
RESPONDENT
TMA
AUCTIONEERS
EIGHTH
RESPONDENT
Neutral
citation:
Frederick Jacobus Senekal
v Robert Peter Jansen Knipe
Coram: Nemavhidi AJ
Heard: 20 June 2024
Delivered:
This judgment was handed down in open court, and released to SAFLII.
The date for hand-down is deemed to be 29
October 2024
Summary:
Arbitration – arbitration award to be made
order of Court in terms of
s 31(1)
of the
Arbitration Act 42 of 1965
.
ORDER
The application is
dismissed with costs on order for costs including counsel’s
fees on scale B of
rule 67A.
JUDGMENT
[1]
The applicant is an attorney practicing as
the sole director under the name of FJ Senekal Incorporated. He was
the fourth respondent
in the arbitration proceedings to which the
application relates. The first respondent, Robert Peter Jansen Knipe,
is a businessman
who was the fourth claimant in the arbitration
proceedings. No relief is sought against the remaining
respondents.
[2]
The applicant requests the Court to
exercise its discretion in terms of the common law or s 31(2) of the
Arbitration Act 42 of 1965
(the Act) to declaring that he is entitled
to recover costs in respect of claims 1 and 5, as he claims that this
Court is empowered
to rectify this accidental slip or omission in the
terms of the aforementioned section. The second claim was dismissed
with costs
on the party and party scale, such costs to be calculated
on the basis that the employment of senior counsel was reasonable.
[3]
In respect of claim 6, the award was
inter
alia
as follows:
‘
It
follows that claim 6 must be dismissed with costs. The costs of the
enquiry are ordered to be treated as administration costs
of the
estate of the insolvent companies.’
[4]
After the Arbitrator had delivered his
award in respect of claims 2 and 6, the applicant presented his bill
of costs in the arbitration
for taxation before the taxing master of
the South Gauteng High Court on 25 March 2024, but the costs
consultant representing the
first respondent contended that the
applicant was only entitled recover costs in respect of the
arbitration awards issued in respect
of claim 2 and further contended
that the award in respect of claim 6 entailed that the applicant’s
costs were to be borne
by the liquidated companies as there existed
no liability for costs for the first respondent and claimants.
[5]
The applicant informed the taxing master
that he would approach the court for the necessary relief in respect
of the costs of the
arbitration and it is trite that the taxing
master does not have any discretion to decide on issues where
liability for costs is
disputed. The applicant addressed a letter to
the arbitrator in an attempt to have the matter resolved, but the
arbitrator declined
to entertain the matter. Thus, the applicant
approached this Court for necessary relief.
[6]
In respect of prayer 2, the first
respondent raised a point
in limine
on the basis that the applicant failed to invoke s 30 of the Act,
which provides that an arbitrator ‘may correct any clerical
mistake or any patent error arising from any accidental slip or
omission.’ He also raised a point
in
limine
based on the provisions of para
16 of the arbitration agreement which contains a so-called automatic
right of appeal against the
award of the arbitrator by any party.
[7]
The first respondent further opposes the
application on the basis that there has been an unreasonable delay by
the applicant in
seeking to invoke the provisions of s 31 of the Act,
which he contends is equivalent to rule 42(1)
(b)
of the Uniform Rules of Court. It says that it is incumbent on the
applicant who seeks the type of relief to do so within a reasonable
period because it is the interest of justice that there should be
relative certainty and finality as soon a possible concerning
the
scope and effect of the awards.
[8]
The first respondent raised a point in
limine
based on ‘res judicata’ contending that as the arbitrator
has determined the dispute between the parties, the parties
are bound
by that determination in any further litigation or arbitration on the
matter as he has already pronounced on the aspect
of costs, by making
no order as to costs.
[9]
In respect of claim 1, the applicant states
that he was confronted with various arguments during taxation on 25
March 2022 regarding
his so-called non-entitlement to costs. In
respect of claim 2, and in an attempt to avoid review proceedings and
further time and
costs delays, he approached the arbitrator by way of
letter on 3 April 2024, seeking rectification of the arbitration
award. However,
he did not receive a favourable reply from the
arbitrator and therefore proceed with the current application.
THE APPLICATION OF THE
LAW
[10]
Section 31
of the
Arbitration Act 42 of 1965
provides as follows:
‘
(i)
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.
(ii) The Court to which
application is so made, may before making the award an order of the
Court, correct in the award any clerical
mistake or any patent error
arising from any accidental slip of omission.
(iii) An award which has
been made an order of the Court may be enforced in the same manner as
any judgment or order to the same
effect.’
[11]
In
Ramphele
v Mlambo
,
[1]
it
was held that where it was clear from the award that the arbitrator
intended to make an award of costs, but did not expressly
say so, the
matter falls squarely within the ambit of s 31(2) of the Act. In
Northpark
Construction v Burnett
,
[2]
the
Court held that a ‘patent’ error is something that is
‘obvious’ and where it is obvious that the award
contains
an error or omission, the Court when making an order of the Court,
correct such error or omission under the provisions
of s 31(2) of the
Act.
[12]
The application stems from the arbitration proceeding which were
concluded during May and October 2021. After
the almost three years,
the applicant seeks to enforce cost awards and perceived cost
entitlements in his favour. The respondent
raised four points in
limine
against the applicant’s entitlement to be granted
a cost order in his favour based on s 31(2) of the Act. In prayer 1,
the
applicant seeks an order that the awards in respect of claim 2
and 6 be made an order of the court in terms of s 31(1) of the Act.
In prayer 2, the applicant wants this Court to declare that he is
entitled to costs in respect of the arbitration agreement in
claims 1
and 5, in terms of s 32(2) of the Act.
[13]
The first respondent conceded that he is liable for the applicant’s
costs in the arbitration
in respect of claims 2 and 6 for which clear
cost awards were made by the arbitrator. In respect of claim 2, the
first respondent
is liable, jointly and severally with the other
claimants, and in respect of claim 6, the first respondent is only
jointly liable
together with the other claimants.
[14]
The applicant, at para 50 of his founding affidavit, states that the
cost consultant of first
respondent on the taxation dated
(25/03/2024) indicated that he is entitled to recover his costs in
respect of the arbitration
award issued in respect of claim 2, yet
the cost award under claim 2 was not taxed because the award was not
made an order of the
Court.
[15]
When an arbitration award is to be made a court order, the court may
before making the award
an order of the court correct any award for
clerical mistake or patent error. It is therefore a prerequisite that
there must be
an award. The taxing master is only authorised and
mandated to tax costs in terms of court order and not arbitration
awards. The
applicant neglected to convert his arbitration costs
awards into a court order for a period of almost three years. This
delay remains
unexplained and cannot be attributed or be blamed on
the first respondent
[16]
The applicant contends that the liquidators settled with the
respondents on 15 May 2021, which
settlement was made an award which
was made order of the court under case number 3933/2020. The
applicant was not a party to this
settlement agreement which was made
an order of the court. The applicant has failed to explain with
reference to claim 1 and 5,
which award he seeks to make an order of
the court as a court is only permitted, in terms of s 31(2), before
making the award a
court order, to correct that existing award for
any clerical mistake or patent error. In para 27 of the applicant’s
founding
affidavit, he acknowledged ‘although no specific costs
orders were awarded in respect of claims 1 and 5’, which is an
admission that there exists no award that stands to be corrected.
[17]
Section 30 of the Act provides that ‘An arbitration tribunal
may correct in any award any
clerical mistake or any patent error
arising from any accidental slip of omission’. The arbitrator
seized with the matter,
considered all the submissions and evidence,
and was the suitable forum to address the applicant’s query.
This should have
happened within a reasonable time from dispensing
with the arbitration proceedings.
[18]
Rule 42(1)
(b)
and s 30 of the Act are exactly the same. With reference to Rule 42,
it has been stated that the rule is a procedural step to amend
expeditiously on obviously wrong judgments or orders and the need to
proceed rapidly to correct an order mistakenly granted has
been
stressed.
[3]
In
Firestone
South Africa (Pty) Ltd v Genticuro
[4]
Trollip
JA stated:
‘
[t]hus,
provided the Court is approached within a reasonable time of its
pronouncing the judgment or order, it may correct, alter
or
supplement it in one or more of the following cases. . .’
[5]
[19] It
is common cause that the arbitration awarded were granted in 2021 and
were available for the applicant
scrutiny and consideration. The
applicant had ample opportunity to have come to the realisation that
the arbitration awards for
the purposes of taxation were required to
be made an order of the court. He failed or neglected to consider
that clerical mistake
or patented errors occurring in the awards with
reference to claims 1 and 5 had to be attended timeously, not three
years after
the arbitration was concluded.
[20]
The applicant should have resorted to s 30 of the Act in order to
approach the arbitrator to correct the
clerical mistake or patent
error which arose from the accidental slip or omission. In First
National Bank of SA Ltd v Van Rensburg
N.O. and Others
[6]
:
In RE FNB LTD v Jurgens & Others 1994(1) SA 677T the Court held
that:
‘
Even if it can be
said that the order granted by Coetzee J was erroneously sought or
contains a patent error, the application should,
in my view, have
been dismissed by reason of the long time lapse. As mentioned
previously, the appellant's attorney uplifted the
order on
approximately 10 September 1988. The application in casu was launched
on 18 November C 1991, more than three years later.
Rule 42(1) was
designed, as was said in Bakoven Ltd v G J Howes (Pty) Ltd
1992 (2)
SA 466
(E) at 471EF, 'to correct expeditiously an obviously wrong
judgment or order'.The need to proceed rapidly to correct an order
mistakenly
granted was mentioned by Trollip JA
in Firestone South
Africa (Pty) Ltd v Gentiruco AG
1977 (4) SA 298
(A) at 306H: D
'Thus, provided the Court is approached within a reasonable time of
its pronouncing the judgment or order, it may
correct, alter or
supplement it in one or more of the following cases . . .'That was
admittedly said in relation to the common
law power of correcting E
an order of Court, but the reasoning applies equally well to
applications under Rule 42(1).
It is in the interest of
justice that there should be relative certainty and finality as soon
as possible concerning the scope and
effect of orders of Court.
Persons affected by such orders should be entitled within a
reasonable time after the issue thereof
to know that the last word
has F been spoken on the subject.’
[7]
[21]
Section 28 of the Act provides that unless the arbitration agreement
provides otherwise, the award is final
and not subject to appeal and
that each party must abide by and comply with the award in accordance
with its terms. This Court
cannot sit as an appeal forum and cannot
have regard to any evidence or submission made before the arbitrator.
This Court will
always be most reluctant to interfere with the award
of an arbitrator.
[22]
The disputes between the parties as to their rights and obligations
have been decided by the arbitrator who
pronounced on the aspect of
costs by making no award as to costs in favour of the applicant in
claims 1 and 5, which aspects of
costs was entertained in the
settlement. In
Ascendis
Animal Health (Pty) Ltd v Merck Shape Dohme Corporation and Others
[8]
the
Constitutional Court Khampepe J confirmed the test res judicata is
standing on four legs:
a)
Same parties
b)
Same cause of actions
c)
Same relief
d)
A final judgment (the Arbitrator’s judgment).
[9]
[23] In
the result:
1.
The application is dismissed with costs on
order for costs including counsel’s fees on scale B of rule
67A.
Nemavhidi
AJ
Appearances
For
the Plaintiff:
Adv
M Louw
Instructed
by:
FJ
Senekal incorporated
Bloemfontein
For
the First Respondents:
Adv
FC Lamprecht
Instructed
by:
Hill
Mc Hardy and Herbst Attorneys
Bloemfontein
[1]
Ramphele
v Mlambo
[2019] ZAGPPHC 81.
[2]
Northpark
Construction v Burnett
[1998] JOL 3956 (W).
[3]
Kili
and Others v Msindwana in re Msindwana v Kili and Others
[2001] 1 All SA 339 (Tk).
[4]
Firestone
South Africa (Pty) Ltd v Genticuro AG
[1977] 4 All SA 600
(4).
[5]
Ibid at 606.
[6]
First
National Bank of SA Ltd v Van Rensburg N.O. and Others: In Re FNB
Ltd v Jurgens and Others
1994
(1) SA 677 (T).
[7]
Ibid at 681B-E.
[8]
Ascendis
Animal Health (Pty) Ltd v Merck Shape Dohme Corporation and Others
[2019]
ZACC 41
;
2020 (1) SA 327.
[9]
Ibid para 24.