IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: ~NO
(2) OF INTEREST TO OTHERS JUDGES: Y.f!S/NO
(3) ~D Case number: 2024-008706
Date of hearing: 24 February 2025
Date delivered: 5 March 2025
--1 I 2 & .. v. ..... ~)........... . ... -..................................... ..
DATE SIGNATURE
In the application of:
MAMPURU, MOSES SIPHO
NOKOINVESTMENTS(PTY )LTD
MAMPURU WASTE MANAGEMENT (PTY) LTD
NOKO PACKAGING (PTY) LTD
and
BOWMAN , CRAIG ANDREW
ADV. SCHALK AUCAMP N.O. First Applicant
Second Applicant
Third Applicant
Fourth Applicant
First Respondent
Second Respondent
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JUDGMENT
SWANEPOEL J:
[1] This is a review of an arbitration award that was handed down by
the second respondent on 18 December 2023. The applicants seek the
setting aside of the award, and an order that the matter be referred for
adjudication before a different arbitrator.
[2] The cause of action in the matter is not important to this judgment.
It is sufficient to say that the arbitration arose from an agreement between
the first applicant and the first respondent in terms of which the first
applicant purchased the first applicant's members' interest in two close
corporations and the shares in two companies at a purchase price of
R 7 350 000. Having concluded the agreement, the first applicant
allegedly breached its terms by failing to pay the purchase price. The
second to fourth applicants are party to the matter by virtue of having
guaranteed the first applicant's performance under the agreement.
[3} After a brief sojourn in the courts, the first respondent referred the
matter to the Arbitration Foundation of Southern Africa ("AFSA") for the
appointment of an arbitrator.
[41 The second respondent was appointed as arbitrator, and after
adjudicating an in limine issue against the first applicant, a pre-arbitration
meeting was held on 9 August 2023, with the view to preparing for
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arbitration on the merits. The first applicant had instructed his attorneys
not to be present at the meeting. At the said meeting the parties attempted
a settlement , which they could not achieve, and a further pre-arbitration
meeting was arranged for 16 August 2023. The first applicant was warned
explicitly that the first respondent would not countenance any delay in the
matter. He undertook to ensure his attorney's presence at the next
meeting.
[5] The first applicant's attorneys were again not present at the
meeting on 16 August 2023. He explained that he had appointed new
attorneys , and that he would be delivering the case files to them the
following day. The pre-arbitration meeting then proceeded , and the
following was agreed:
[5.1] The parties would deliver discovery affidavits by 31
October 2023;
[5.2] The first respondent would deliver a bundle of documents
by 6 November 2023;
[5.3] Expert notices, if any, would be delivered by the first
respondent in terms of Uniform Rule 36 by 17 November 2023,
and by the first applicant by 24 November 2023.
[5.4] The arbitration would commence on 6 December 2023·
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-[5.5] The parties would settle the arbitration costs in equal
shares before 6 December 2023, and if any party failed to do so,
the other party was entitled to pay the fees on its behalf.
[6] It was recorded that the first applicant's new attorneys could
contact the first respondent's attorneys should they require clarity on any
part of the procedure .
[7] The first respondent discovered by 31 October 2023. On the same
day the first applicant sent an email that read:
"Please find the list of my discovered documents . I am busy finalizing an
agreement with my attorney of record."
[8] The first respondent's attorneys acknowledge receipt of the list,
and requested the first applicant to deliver his discovery affidavit and his
bundle of documents . On 1 November 2023 the first respondent 's
attorneys again reminded the first applicant that he had not complied with
his obligation to discover.
[9] On 20 November 2023, three weeks later, the first applicant wrote
to the first respondent's attorney saying:
"I am still waiting for the documents I requested from you as per the
attachment on the 3P1 October 2023. Please advise when I must expect
the documents ."
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[1 0] I find it inexplicable that the first applicant could somehow interpret
his email of 31 October to constitute a request for documents .
Nonetheless, the first respondent's attorneys advised him that the
documents requested were personal to the first respondent, were
irrelevant, and would not be provided.
[11] The first applicant then did nothing until 6 December 2023 when
he appeared , unrepresented, at the arbitration . The first applicant sought
a postponement of the proceedings on two grounds: Firstly, that he was
unrepresented and had not been able to obtain the services of an
attorney, and, secondly, that he had not been provided with the
documents that he says he requested on 31 October 2023.
[12] The arbitrator made the off-the cuff remark that possibly the first
applicant could not represent the second to fourth respondents , but he
made no finding on the issue.
[13] The first applicant provided no reason why he had not secured the
services of an attorney. As far as the requested documents are
concerned , the first applicant was asked what their relevance might be.
The first applicant only said that they might become relevant when their
contents were scrutinized , and that an attorney might be able to answer
the question better. In short, the first applicant could not justify his request
for the documents .
[14] The second respondent considered the request, and then refused
a postponement. He enquired from the first applicant how he intended to
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proceed. The first applicant chose to leave the arbitration proceedings ,
effectively allowing the arbitration to continue by default. Having heard
evidence, the arbitrator then adjourned the case and reserved judgment.
He handed down judgment on 18 December 2023.
[15] The grounds for review are the following:
[15.1] That there had been no agreement on the rules under
which the arbitration would be conducted (the Commercial or
Expedited rules of AFSA), and that the second respondent applied
different rules to the conduct of the matter;
[15.2] That the arbitrator had erred in finding that the first
applicant could not represent the second to fourth applicants ;
[15.3] That the arbitrator refused a postponement in
circumstances where the rules of discovery had not been agreed
upon, the first applicant had only become aware shortly before the
arbitration that the first respondent did not have the documents that
he sought, and that he was unaware of the remedies available to
him to obtain the documents ;
[15.4] That the award had been amended improperly
subsequent to its publication in order to correct an incorrect date.
[16] Before I deal with the merits of the application, I point out that the
applicants also sought condonation for the late filing of the
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-.. application , which was not opposed. I shall thus condone the late
filing of the application .
[17) The Arbitration Act, 42 of 1965 provides in section 33 (1) for the
circumstances under which an award may be set aside. It reads as
follows:
"(1) Where-
(a) any member of an arbitration tribunal has
misconducted himself in relation to his duties as
arbitrator or umpire; or
(b) an arbitration tribunal has committed any gross
irregularity in the conduct of the arbitration
proceedings or has exceeded its powers; or
(c) an award has been improperly obtained,
the court may, on the application of any party to the
reference after due notice to the other party or parties,
make an order setting the award aside."
[18) The above provisions are exhaustive of the grounds upon which a
private arbitration may be reviewed and set aside. The first applicant
relies particularly on section 33 (1) (b ), that the second respondent
committed a gross irregularity in the proceedings . He argued that
although the grounds for review individually may not justify a review, the
cumulative effect was that the applicants had not received a fair hearing.
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-[19] When parties agree to private arbitration , they agree to the
expeditious determination of the dispute by way of an agreed and
truncated process. In Telcordia Technologies Inc v Telkom SA Ltd1 the
court said2:
"[50) By agreeing to arbitration parties to a dispute necessarily
agree that the fairness of the hearing will be determined by the provisions
of the Act and nothing else. Typically they agree to waive the right of
appeal. Which in context means that they waive the right to have the
merits of their dispute re-litigated or reconsidered. They may, obviously ,
agree otherwise by appointing an arbitral appeal panel, something that
did not happen in this case.
[51] Last, by agreeing to arbitration the parties limit interference by
courts to the grounds of procedural irregularities set out in s 33 (1) of the
Act. By necessary implication they waive the right to rely on any further
ground of review, 'common law' or otherwise. "
[20] The first applicant relies entirely on section 33 (1) (b}, that the second
respondent allegedly committed a gross irregularity in the matter. In Bester v
Easigas (Pty) Ltd and Another the Court defined said that a gross irregularity
relates to the conduct of the proceedings , and not to the outcome thereof. The
conduct must have been of such a serious nature so as to result in the aggrieved
party not having his case fully and fairly determined . This approach was
approved in Mia v DJL Properties (Wa/tloo) (Pty) Ltd and Another"
[21] The question is therefore not whether the arbitrator was right or
wrong, the question is whether the arbitrator allowed a process by which
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the aggrieved party was prevented from presenting his case fairly. As it
was put in Rabinowitz v Levy and Others5:
"The 'gross irregularity ' required bys 33 (1) (b) must relate to the conduct
of the proceedings , and not the result or outcome of the proceedings .
Thus, if an arbitrator is guilty of conducting an arbitration in some form of
high-handed or arbitrary manner, or dishonestly , he or she would be
guilty of a gross irregularity . But a bona fide mistake in the merits, no
matter how gross, will not suffice. It is furthermore not every irregularity
in the conduct of the proceedings that will afford grounds for review; the
irregularity must have been of such a serious nature that it resulted in the
aggrieved party not having his case fully and fairly determined ."
[22) It was put eloquently in Telcordia, that an arbitrator "has the right to be
wrong on the merits". The arbitrator is granted the right to apply the law as he
believes to be correct, and an error in such application does not constitute a
gross irregularity.
[23) The applicants, firstly, allege that the arbitrator applied the incorrect
rules, by applying the AFSA expedited rules, and that it had not been agreed
that those rules applied to the arbitration . The first respondent has stated in the
answering affidavit that, notwithstanding that the pre-arbitration minutes do not
say so, it had been agreed that the expedited rules would apply. On the Plascon
Evans rule6 I must accept the first respondent 's version unless it is clearly
untenable . The facts support the first respondent 's version.
[24) In any event, what, if any, effect did the application of the rules have on
the manner in which the proceedings were conducted? In my view, none. The
first applicant knew exactly what was expected of him as far as discovery was
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concerned. He failed to comply with the arbitrator's directive that he should
discover by 31 October 2023. He then sent an email that cannot under any
circumstances be interpreted as a request for documents , and he sat back and
did nothing to engage with the arbitrator regarding better discovery until he
appeared at the arbitration. The first applicant neglected to have his attorneys
present at the arbitration . Neither the nature of the rules applied, nor the manner
of their application caused the first applicant any prejudice.
[25] The arbitrator has the right to adopt whatever procedure he believes to
be appropriate for the resolution of the dispute, unless the arbitral agreement
precludes such procedure. 7 In this case the arbitrator decided to adopt the
procedures in rule 35, which the first applicant was welcome to follow if he
wished to do so. The first ground of review has no merit.
[26] The first applicant also alleged that the second respondent ruled that he
could not represent the second to fourth applicants. That is not correct. The
second respondent specifically did not make a ruling on this issue. On the
contrary, having refused a postponement , he invited the first applicant to
continue with the proceedings , at which point the first applicant left the
proceedings of his own volition. He is, in my view, the author of his own
misfortune .
[27] The first applicant also contends that the second respondent committed
a gross irregularity by refusing a postponement. If regard is had to the above
discussion on 'gross irregularities', it is immediately clear that refusing a
postponement is not a gross irregularity . The arbitrator exercised a discretion ,
and even if he did so erroneously , which I do not believe is the case, then he
had the right to be wrong. This is not a ground for review.
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[28] The final aspect was the allegation that the award was subsequently
corrected in an irregular manner. Counsel for the applicants did not pursue this
submission , wisely so, and the less said on this topic the better.
[29] Counsel for the applicants argued that individually the grounds for review
might not justify the setting aside of the award, but that they collectively led to
the applicants not receiving a fair hearing. I disagree. The first applicant brought
the result upon himself by his dilatory conduct. and by his decision to leave the
arbitration . In the circumstances he received a fair hearing.
[30) The agreement for the sale of provides for the granting of attorney/client
costs, and I shall make such an order.
(31] It follows, therefore that the application must fail, and I make the
following order:
[31.1] The late filing of the application is condoned .
[31.2] The application is dismissed .
[31.3] The respondents shall pay the costs on the
attorney/client scale, jointly and severally, the one paying the other
to be absolved.
SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
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Counsel for the applicants:
Instructed by: Adv P Kok
Langham-Love Galbraith
Van Reenen Inc
Counsel for the first respondent:
Instructed by: Adv B van der Merwe
Malherbe Rigg and Ranwell
Inc
Date heard:
Date handed down: 24 February 2025
5 March 2025
1 Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA); [2007] 2 ALL
SA 243 (SCA)
2 At paras [50] to [51]
3 Bester v Easigas (Pty) Ltd and Another 1993 (1) SA 30 (C) at 42 G to 43 D
4 Mia v DJL Properties (Waltloo) (Pty) Ltd and Another 2000 (4) SA 220 (T)
5 Rabinowitz v Levy and Others 2024 JDR 0220 (SCA); [2024] ZASCA 8 (26 January
2024), at para [15]
6 Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 620 (A)
7 Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd 2013 (6) SA 520 (SCA) at
paras 19 to 20
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