REPUBLIC OF SOUTH AFRICA
‘ ly
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case no: 2023-035959
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
DATE SIGNATURE
In the matter between:
Vv & A PLACEMENT AGENCY (PTY) LTD Applicant
and
ARBITRATOR ANITIA LAPAN N.O. First respondent
ZUID-AFRIKAANS HOSPITAL Second respondent
These reasons were delivered by uploading it to the court online digital database of
the Gauteng Division of the High Court of South Africa, Johannesburg, and by email
to the attorneys of record of the parties on 7 January 2025.
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a
REASONS FOR DECISION
issn nn
VAN DER WALT AJ
Introduction
[1] On 24 November 2024 | dismissed, with costs on scale C, an application for
leave to appeal in this matter. The applicant sought reasons for the dismissal.
These are the reasons.
The application a quo
f [2] __ The initial application was in terms of section 33(1)(b) of the Arbitration Act."
In the main it sought to set aside an arbitrator's award (an interim award
dealing only with breach of contract and negligence). It did so by asserting
ten grounds of review. These ten grounds of review and the facts alleged in
support of them also formed the basis for further ancillary relief sought,
namely that the arbitrator be removed and for the court to substitute its
findings for those made by the arbitrator.
[3] Briefly, the first ground of review was that the arbitrator exceeded her powers
by asking counsel for the applicant to reformulate a question and said that the
witness did not understand a question. The second ground alleged bias on
the part of the arbitrator. The third ground was based on the arbitrator's
disallowance of evidence that was never put to the second respondent's
witnesses. The fourth ground was based on the submission that the arbitrator
“failed to properly or reasonably assess the evidence properly before her”.
‘ 42 of 1965.
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The fifth ground included the assertions that the arbitrator made a finding she
could not make, did not “consider evidence that ought to have been
considered” and made a finding that was “highly flawed”. The sixth ground
asserted that the arbitrator “incorrectly” stated that certain evidence had not
been challenged, that she “failed to identify” inconsistencies in the evidence,
that she “got it wrong” by saying evidence was not challenged or disputed,
and that all this led to a finding that was “highly incorrect’. The seventh
ground asserted that the arbitrator “incorrectly assessed the evidence”. What
resulted was called a “false finding’. The eighth ground asserted that the
arbitrator “got it wrong” where she found that “the applicant had led any
evidence proving” one of her conclusions on the facts. The ninth ground took
aim at what the arbitrator “incorrectly states” in her award. It was said that
“It]his is incorrect, the arbitrator has clearly incorrectly analysed evidence
incorrectly by creating testimonies that does not exist.” The tenth ground
related to findings about the applicant's expert's testimony. It included the
assertion that the arbitrator “failed to consider” this evidence and reached a
decision a “reasonable decision-maker” could not have reached.
The judgment
[4] The judgment held that the first to third grounds properly fall within the remit of
section 33(1)(b) of the Act. Their merits were considered. They were found
to have none. The fourth to tenth grounds were found not to fall within section
33(1)(b)'s remit. The judgment further held that, in addition to there being no
basis in fact for such a step, the court did not have the power to substitute its
findings for those of the arbitrator. Lastly, as it had been had held that the
large majority of the case as made out in the founding affidavit was entirely
irrelevant to the relief sought, looking to make out a case under section
33(1)(b) as it did, and that the rest of the applicant's case had no merit, no
good cause had been shown for the removal of the arbitrator. That is, even if
one were to overlook the applicant's failure to place any reliance on section
13 of the Act.
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