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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case No.: 2025/005316
In the matter between:
PINNACLE PROJECT MANAGEMENT (PTY) LTD Applicant
(Registration Number: 2013/135126/07)
and
JONATHAN W MITCHELL N.O. First Respondent
VINESH NAIDOO Second Respondent
(Identity Number: 6[…])
Neutral citation: Pinnacle Project Management (Pty) Ltd v Jonathan W Mitchell
N.O. + 1 other (Case no 2025/005316 [2026] ZAWCHC … (06-
03-2026)
Coram: WELGEMOED AJ
Heard: 04 March 2026
Delivered: 06 March 2026
Summary: Remittal of decisions by the arbitrator on good cause shown. By failure to
read a conditional order and exercising powers in terms of his appointment.
ORDER
1. That clause 10 be remitted to the learned Arbitrator to be reconsidered.
2. That the sealed offer be remitted to the Arbitrator for reconsideration.
JUDGMENT
____________________________________________________________________
WELGEMOED, AJ:
Introduction
[1] This is an application for an Order that two aspects be remitted to the Arbitrator,
as envisaged in terms of Section 32(2) of the Arbitration Act, 42 of 1965.
[2] The Applicant and Second Respondent, Mr Vinesh Naidoo (identity number
6[…]) (hereafter “Mr Naidoo”), concluded a written agreement in terms of the Master
Builders of South Africa : House Building and Small Contracts Agreement, March
2005 Edition.1
[3] Mr Naidoo is a private individual who was desirous of constructing a new
dwelling on Erf 1 […], Graanendal, and the building works was to be undertaken by
the Applicant as Contractor.
[4] On 19 March 2021 the Contractor/Claimant informed the Employer/Respondent
that certain disputes have arisen on the project . The First Respondent (Mr Jonathan
Mitchell) has been appointed as Arbitrator by mutual agreement between the parties.
[5] The notice of arbitration had been filed on 19 March 2021 in terms of clause
1 Court Bundle: p 111
31.1 of the Master Builders Association of South Africa: H ouse Building and Small
Contracts Agreement.
[6] It was further agreed between the parties that the arbitration would be
conducted under the Association of Arbitrators (South Africa) N PC Rules for the
Conduct of Arbitrations, 2018 Edition.
[7] Both parties were represented during the arbitration.
[8] The Arbitrator adjudicated 15 claims and found in favour of the Claimant in
relation to 14 Claims.
[9] Claim 10 is in dispute.
[10] The final award was made on 9 October 2024.2
The Two issues to be decided:
The “sealed offer” dispute:
[11] In or about 18 July 2022 Mr Naidoo, presented a ‘sealed offer’ to the Arbitrator.
I was informed by both counsel that the sealed offer was tantamount to a Rule 34
offer in terms of the High Court Rules. However, the offer was conditional in that the
Claimant had to perform certain works.
[12] The sealed offer was only opened by the Arbitrator , in the presence of the
parties, on 9 October 2024 (more than two years later) and after the Arbitrator
completed his final award on 26 August 2024.3
[13] At a virtual meeting o n 9 October 2024, the Arbitrator opened the sealed offer
and on the same day, published his final award and declared himself functus officio.4
2 Court Bundle: p 153
3 Court Bundle: p 153
4 Court Bundle: p 153
[14] The learned Arbitrator, Mr Mitchell, writes on 9 October 2024:5
‘Dear All,
Whilst I completed my final award in this matter on the 26 th day of August 2024,
I confirm that my final award has been published upon the parties today (9
October 2024) … in the presence of the parties and their representatives, via a
virtual meeting I opened the “sealed offer” which was presented to me on 18
July 2022. This now completes my involvement in this arbitration and I am now
functus officio in regard to the disputes which have now been finally determined
by me in this arbitration.
…’
[15] The Arbitrator did not afford the part ies an opportunity to make submissions in
respect of the sealed offe r. The offer of R390 147 was indeed greater than the
amount of damages awarded.
[16] Mr Tredou x submitted that the Applicant was materially prejudiced by not
affording the Applicant an opportunity to respond after the Arbitrator opened the
sealed offer.
[17] The Claimant submits that the cost issue is grossly irregular for the following
reasons:
(a) The Applicant could have informed the Arbitrator that it was denied access to
the property to comply with the conditions of the sealed offer.
(b) The trite principal concept of audi alteram partem was not afforded to the
Claimant.
(c) The failure to acknowledge that an offer contained an amount greater than the
amount awarded cannot be the determining factor on its own if the same offer
contains conditions as the conditions may render the offer moot.
(d) The failure to take cognisance of t he fact that the offer was conditional on the
Applicant remedying defects and outstanding work when there was no final
determination in respect of defects and outstanding work.
(e) When Mr Naidoo withdrew his counter claim, the list of patent defects fell
away. In other words, it became impossible to comply with the conditions of
5 Court Bundle: p 153
the ‘sealed offer’.
[18] There is little doubt in my mind that the learned Arbitrator should have opened
the sealed offer before making his cost award and that his failure to do so constitutes
a gross irregularity.
[19] Accordingly, as far as the sealed offer is concerned, the matter should be
remitted to the learned Arbitrator to reconsider his cost award.
The Claim 10 dispute:
[20] Claim 10 of the Arbitration states, ‘Claimant claims payment from respondent in
the amount of R809,981.43 inclusive of VAT, in respect of amounts allegedly not
paid by respondent to claimant for work executed at house Naidoo or such other
sum as determined by the arbitrator’.
[21] The Arbitrator dismissed this claim on the following grounds. In paragraph 193 6
he states the ratio for his dismissal of the claim as following:
‘Due to claimant’s inability to provide sufficient cogent evidence, supporting
invoices, substantiating documentation, or other relevant and provided
documents which are not in conflict with or denied by respondent and therefore
I am unable to calculate or determine any other such sum which may be owed
by the respondent to claimant for building work executed at house Naidoo. This
does not necessarily mean that there is no amount owing to claimant by
respondent for work thus executed. It does however mean that claimant has
failed to provide me with the relevant and provided information to enable me to
calculate such an amount which may be owed by the respondent to the
claimant and which may be due and payable accordingly.’
[22] In its founding papers7 the Claimant, Mr Liebenberg, states as follows:
‘On 16 October 2024 the applicant (claimant in the arbitration) requested the
first respondent to give an interpretation of the award which it was entitled to do
in terms of Article 37 of the Rules applicable to the arbitration by agreement
between the parties, which is the Association of Arbitration (South Africa) NPC
between the parties, which is the Association of Arbitration (South Africa) NPC
Rules for the Conduct of Arbitration, 2018 Edition (the ‘NPC Rules’), a copy of
6 Court Bundle: p 134
7 Court Bundle: p 10
which is attached hereto marked “PPM1” and the first respondent was also
empowered by section 30 of the Arbitration Act to correct errors in the award.
…’
[23] Article 27 of the Rules of the Association of Arbitrators, 2018 Edition, Standard
Procedure Rules (1 January 2018),8 clearly states that:
‘(3) At any time during the arbitral pro ceedings the arbitral tribunal may
require the parties to produce documents, exhibits or other evidence
within such a period of time as the arbitral tribunal shall determine.’
[24] It follows that the Arbitrator was misguided by dismissing the claim as he was
bound by the Arbitration Rules and accordingly should have called for the documents
he required to come to a correct decision.
Legal principles
[25] Section 32 of the Arbitration Act, 42 of 1965 (as amended), reads as follows:
‘32. Remittal of Award
(1) …
(2) The court may, on the application of any party to the reference
after due notice to the other party or parties made within six
weeks after the publication of the award to the parties, on good
cause shown, remit any matter which was referred to arbitration,
to the arbitration tribunal for reconsideration and for making of a
further award or a fresh award or for such other purpose as the
court may direct …’
[26] In the matter of Lead Train Assessments (Pty) Ltd and Others v Lead Trai n
(Pty) Ltd and Others 2013 (5) SA 84 (SCA) under the heading ‘Headnote’, the
Supreme Court of Appeal eloquently states the application of Section 32:
;Under section 32(2) of the Arbitration Act, 42 of 1965, a court may on good
cause remit an award to the arbitrator. Although the expression ‘good cause’ is
of wide import it falls to be applied in the context of the Act, which strives for
finality in arbitration awards. Good cause requires something more than mere
8 Court Bundle: p 42
error on the part of the arbitrator and will pre-eminently exist if the arbitrator fails
to deal with an issue before him / her (own emphasis). But once an issue has
been pertinently addressed and d ecided there is little scope for a remittal and
this would also apply to cost orders made by the arbitrator. Moreover, awards
that are not reviewable under section 33 should not be remitted under section
32(2) for the effect would be to emasculate section 33(1).’ (paragraphs [14] to
[15] at 87G-88I)
[27] In my respectful contention , the learned Arbitrator did not consider the content
of the sealed offer, nor did he utilise his powers under Section 27 to call for
documents to decide Claim 10. It is therefore clear that the Arbitrator failed to deal
with the two issues before him.
Order
[28] As a result, the following order shall issue:
(a) That clause 10 be remitted to the learned Arbitrator to be reconsidered.
(b) That the sealed offer be remitted to the Arbitrator for reconsideration.
Costs
[29] Both parties agreed that a costs order on a party and party scale is appropriate
and costs of counsel under Scale B.
______________________
WELGEMOED AJ
ACTING JUDGE OF THE HIGH COURT
Appearances:
For applicant: JC Tredoux
Instructed by: Jordaan & Ferreira Inc.
For respondent: S Van der Meer
Instructed by: Van der Meer Attorneys