HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 2024-063413
( I) Rf.PORTABL E: NO
(2) OF t~lEREST TO OTIIER Jl DCES: '\O
In the matter between:
HBC CONSTRUCTION (PTY) LTD
and
(3) REVI SED.
SI GN TURA
CITY OF TSHWANE METRO POLIT AN
MUNICIPALITY
THE MUNICIPAL MANAGER CITY OF
TSHWANE METROPOLITAN MUNICIPALITY
TERRY MAHON
Applicant
First Respondent
Second Respondent
Third Respondent
Summary: Arbitration - Review of awards. Whether the review of an interim
award was time-barred; whether the arbitrators conduct amounted
to gross misconduct; whether the arbitrator had committed gross
irregularities and whether a notice in terms of Article 14 of the
applicable Rules had precluded the arbitrator from issuing an award
2
applicable Rules had precluded the arbitrator from issuing an award
terminating the arbitration. Found that there were no grounds
justifying the relief claimed by the unsuccessful claimant in the
arbitratfon. The review applications and the additional declarators
sought were dismissed with costs. Having regard to the nature of
allegations made by the claimant/applicant and its attorney against
the arbitrator, punitive costs were ordered, including payment de
boniis propriis in respect of the arbitrators costs.
ORDER
1. The application is dismissed.
2. The applicant is ordered to pay the costs of the first and second
respondent s, including the costs of two counsel , where employed. The
costs of counsel shall be taxable on scale C of Ru le 69.
3. The applicant and its attorneys are jointly and severally ordered to pay
the third respondent's costs on the scale as between attorney and client,
including the costs of two counsel, where employed.
4. The costs ordered in paragraphs 2 and 3 above shall include the wasted
costs of the respective parties occasioned by the proceedings on the
urgent court roll of 14 April 2026.
3
JUDGMENT
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation to the parties 'legal representatives by email and by uploading it to
the electronic file of this matter on Caselines. The dale of handing-down is
deemed to be 30 April 2026.
DAVIS, J
Introduction
[1] For purposes of readying the Loftus Versfeld sports stadium for the 2010
Soccer World Cup, hosted in South Africa, the City of Tshwane Metropolitan
Municipality (CTMM) contracted HBC Construction (Pty) Ltd (HBC).
[2] The terms of the agreements and the disputes which arose between the two
contracting parties are irrelevant for purposes of this judgment. It is only
necessary to state that those disputes ended up being the subject-matter of two
sets of arbitration proceedings.
[3] The first arbitration was before Prof Schloss, but the proceedings before
him were by agreement , reviewed and set aside. In the second arbitration, an
attorney of 55 years' standing, Terry Mahon was appointed as the arbitrator.
[ 4] At some point during the second arbitration proceedings before the said
arbitrator, he made an interim award whereby he upheld objections raised by the
CTMM against HBC's statement of claim and, in the fashion of dealing with an
4
exception in terms of the practice in this court, furnished HBC the opportunity to
amend its statement of claim. When HBC failed or refused to deliver an amended
statement of claim, despite further invitations to do so, the arbitrator, at the
instance of CTMM on application, issued a termination award.
(5] HBC thereafter applied to this court on an urgent basis for a review and
setting aside of the two awards and for extensive declaratory relief against the
arbitrator, based on allegations that he had acted grossly irregular and was guilty
of misconduct . Costs were sought against him and it was claimed that he should
forfeit his fees in the arbitration.
[6] The matter initially featured on the urgent motion court roll ofTolmay Jon
14 April 2026, from whence it was struck, primarily because the volume of papers
and the duration of argument necessitated an allocation by the Acting Deputy
Judge President as a special urgent application , in terms of this court's practice
directives. That is how this matter came before me a week later. Tolmay J had
reserved the question of liability for wasted costs in respect of the proceedings
before her.
Relief sought by the applicant
[7] The applicant principally sought to have the interim award whereby the
arbitrator upheld CTMM ' s challenges to the statement of claim and struck out the
claim (as then formulated) as well as the award whereby the arbitration
proceedings were terminated , reviewed and set aside. The applicant also sought
a review of the arbitrator's "decision re/using the applicant 's refusal challenge"
(in the words used in the applicant's notice of motion).
[8] In addition, the applicant sought a plethora of declaratory orders. These
were formulated as follows:
5
"2. Declaring that:
2. 1. the third respondent failed to conduct the arbitration
proceedings in accordance with the orders of this
Honourable Court governing the arbitration.
2.2. the th;rd respondent failed formally and officially to
disclose, prior to his appointment, his prior
professional relationship and familiarity with the legal
representatives who appeared before him in the
arbitration proceedings.
2. 3. the third respondent had no jurisdiction m Law to
entertain and determine the so-called exception raised
by the first respondent.
2. 4. the third respondent had no jurisdiction to entertain
and determine the first respondent's application for
termination under Article 32 of the Association of
Arbitrators of Southern Africa Rules whilst the
applicant's application for his recusal remained
pending.
2. 5. the applicant's statement of claim was delivered in
accordance with the applicable arbitration rules and
valid.
2. 6. the first respondent failed to comply with its obligation
to deliver a statement of defence in accordance with the
applicable rules and therefore in default.
6
2. 7. an exception is not a competent procedure in
arbitrations conducted under the Association of
Arbitrators of Southern Africa Rules, November 2021
(8th Edition).
2.8. the third respondent committed gross irregularities
and/or gross misconduct in the conduct of the
arbitration proceedings.
2.9. the third respondent is not entitled to any costs of the
arbitration proceedings as against the applicant".
Procedural history
[9] As can be seen from the extent of the relief sought by the applicant , as well
as the fact that the applicant claimed that its recusal objection was based on the
"cumulative" conduct of the arbitrator, it is necessary to have regard to the
relevant procedural history. In summarizing the more than two thousand pages
presented to the court when the matter came before me last week, I shall in many
instances refer to the express wording used by the parties. This is done to
illustrate the points relied on by HBC and to assist in contextualizing the facts
upon which this court exercised its discretion in relation to the issue of costs. The
relevant point of departure is with the court order which directed the
commencement of the arbitration and its initial termination date.
[10] On 8 August 2025 Collis J granted an order in the following terms, by
agreement between the parties:
"2. The third respondent's (Professor Ronald Schloss) arbitration
award dated 12 April 2024 and transmiued to the parties on 16 May
2024 ("the award") is hereby reviewed and set aside.
7
3. The dispute between the parties is referred to the chairperson of the
Association for Arbitrators Southern Africa who shall within thirty
(30) days of this order, appoint a person who is qualified as a
lawyer, practicing as such for a period of no lesser than ten (JO)
years as an advocate or an attorney who shall act as an Arbitrator,
provided that such person shall:
3.1. convene a pre-arbitration meeting within ten (1 OJ days of his
appointment.
3.2. commence with the arbitration proceedings de novo on such
date agreed to between the parties or failure to reach
agreement, on such date determined by him/her.
3.3. ensure that the arbitration proceedings, (including the
delivery/publication of the arbitration award), are concluded
within four (4) months after the pre-arbitration meeting.
3. 4. Conduct the arbitration proceedings in accordance with the
rules of the Association of Arbitrators of Southern Africa
applicable at the time of his/her appointment.
4. That the costs, (inclusive of the scale thereof), of the review
application as well as the costs of the arbitration shall be held over
for determination by the arbitrator appointed in accordance with
paragraph 3 above".
[ 11] After the appointment of the arbitrator, a first pre-arbitration meeting was
held on 19 September 2025. Thereat, the parties inter alia, agreed on the
following:
8
"2. Confirmation of the appointment of the arbitrator and conditions
of his appointment
Parties agreed that the Arbitrator had been validly appointed and
that the terms and conditions of his appointment were · as per the
attachment to the agenda.
3. Section 23 of the Arbitration Act
It was agreed that the /;me periods for submissions, discovery,
witness statements, expert summaries, hearing, argument and the
Arbitrator's award would be as detailed hereunder.
4. Rules applicable to the Arbitration proceedings
It was corifirmed that the rules applicable to the arbitration were the
Rules for the Conduct of Arbitrations of the Association of
Arbitrators (Southern Africa) NPC Editor 4.1 March 2005.
5. Status of Arbitration proceedings
5.1 It was recorded that in terms of the Court Order the arbitration
proceedings were to commence de nova. In regard to these
proceedings the following was agreed, namely:
5. 1.1 That the legal representatives at the parties would liaise
with each other and would agree on a timetable for the
exchange of submissions, discovery, witness statements,
expert summaries and all other pre-heating procedures
and would convey what had been agreed to the
Arbitrator.
9
5.1.2 The time period reserved for the hearing is from 1s1
December 2025 until noon on the 121h December 2025
(weekends excluded).
5.l.3 The parties will agree on dates for the exchange of heads
of argument and will advise the Arbitrator as to what has
been agreed in regard to such exchange.
5.1.4 Argument will be addressed to the Arbitrator virtually on
the 13,1i January 2026'.
(12] On 7 October 2025 the mandate of the applicant's previous attorneys and
counsel were terminated and their current attorneys were appointed. They
requested a second pre-arbitration meeting, which was held on 14 October 2025.
At that meeting, the following was agreed to:
"THE TIME-TABLE
It was agreed that:
3. 1. the Claimant would deliver its statement of claim by 17th
October 2025,·
3. 2. the arbitration hearing will take place from the 2nd March
2026 to 5th March 2026 and from 9th March 2026 to 13th
March 2026,·
3. 3. the parties ' legal representatives will agree on dates for the
delivery of further submissions, discovery, factual witness
statement, expert summaries and all other pre-hearing issues
by no later than 24th October 2025 failing which the
Arbitrator w;// issue an appropriate directive in order to
10
regulate these matters so as to ensure that the matter is ripe
for hearing on the 2nd March 2026.
3. 4. the parties, based on what has been agreed, as detailed in 3.1
to 3. 3 above have waived the provisions of Section 23 of the
Arbitration Act, 1965.
4. THE COURT ORDER
The Claimant will, to the extent necessary, apply to the High Court
on a semi-urgent basis to extend the time period for the conclusion
of the Arbitration proceedings to 30th June 2026" .
[13] The timetable referred to in para 3.3 of the minute of 14 October 2025, was
subsequently agreed on between the parties' legal representatives on 24 October
2025. This resulted in the arbitrator issuing a directive on 29 October 2026,
incorporating the agreed timetable. The timetable read as follows:
- "30/10/2025 - Statement of Claim
- 30/1112025 - Statement of Defence
- 15/12/2025 - Claimant's Reply (if any)
- 15/01/2026 - Claimant's Discovery and Expert Reports & Notices
29/01/2026 - Defendant's Discovery
- 30/01/2026 -Defendant's Expert Reports & Notices
- 12/02/2026 - Claimant's Witness Statements: Export Reports & Notices
- 19/02/2026 - Defendant's Witness Statements: Expert Reports &
Notices"
[14] The Claimant's statement of claim was duly delivered whereafter CTMM
delivered a "Notice of Except ion" on an agreed to extended date of 5 December
2025. This resulted in a 3rd pre-arbitration meeting on 11 December 2025.
11
Thereat time periods for the exchange of heads of argument and a hearing date
for the "exception" were agreed on, being 23 January 2026.
[15] In the meantime and, despite HBC having undertaken, on the 14°
1
October
2025, "to the extent necessary" to apply to court on a "semi-urgent basis" to
extend the time period for the conclusion of the arbitration proceedings to the 30th
June 2026, it delayed launching such an application until 19th January 2026 (the
time period contemplated in the court order of 8 August 2025 expired on 20
January 2026).
[16] The exceptions taken by CTMM were raised under the following headings:
"First Ground of Exception: Failure to Disclose a Cause of Action
Second Ground of Exception: Failure to Plead JBCC Compliance
Third Ground of Exception: Prescription and Contractual Time-Bar on
Face of SOC
Fourth Ground of Exception: Vague and Embarrassing Pleading of
Quantum Claims
Fifth Ground of Exception: Claim 8 (Alternative Final Account) is not
Legally Pleaded
Sixth Ground of Exception: Claim 9 (Damages- Rl64 938 666.000) is bad
in law".
[17] At the hearing on the 23rd January 2026 HBC's opposition to the exception
was confined to five points in limine. The merits of the exception were only dealt
with cursorily in oral argument in reply. The points in limine were advanced
under the following headings (quoting from HBC' s heads of argument):
"First point in limine - Excephon incompetent procedure
12
Second point in lirnine - Exception incompetent with Rule 23 of Uniform
Rules of Court
Third point in /;mine - The exception is not a pleading
Fourth point in limine - Application based on Rule 24
Fifth point in limine - Exception incompetent for prescription and time
bar".
[ 18] In his interim award, the arbitrator noted the following:
, Article 18
"18. At the pre-arbitration meeting held on the 19111 September
2025 the Arbitrator was advised that the rules applicable to
the arbitration were the Rules applicable for the Conduct of
Arbitrations of the Association of Arbitrawrs (Southern
Africa) NFC Edition 4.1 March 2005 and was so minuted.
This was clearly erroneous as having regard to the Court
Order dated J Ith August 2025 it is apparent that the
applicable rules are the Association of Arbitrators (Southern
Africa) NPC Rules for the Conduct of Arbitrations: 8th
Edition (I November 2021) ("the Rules'').
19. Article 18 and Article 25 of the Rules are applicable to this
exception.
21. The Arbitrator, in Article 181, is given very wide powers to
1 Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate, provided that the parties are treated with equality and that at an appropriate stage of the
proceedings each party is given a reasonable opportunity of presenting Its case. The arbitral tribunal, in
exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and
to provide a fair and errlclent process ror resolving the parties' dispute.
2. Unless the parties agree otherwise and subject to these Rules, the arbitral tribunal shall have regard to,
but is not bound to apply, the Internati onal Bar Assoc iation Rules on the Taking of Evidence in International
Arbitration in the version current at the commencement of the arbitration.
13
conduct the arbitration provided that the parties are treated
equally and are given a reasonable opportunity of presenting
their case.
22. From Article 2s2 it is abundantly clear that a party may apply
to the Arbitrator for the early dismissal of a claim. The fact
that the application is described as an exception is in the view
3. Within 30 days of its constitution, the arbitral tribunal shall convene a preliminary meeting with the
parties and shall notify the parties of the time and venue. The arbitral tribunal may direct that the
preliminary meeting be conducted in person or through a remote hearing. After inviting the parties to
express their views, the arbitral tribunal shall establish the provisional timetable for the arbitration and give
provisional directions as to the extent that the arbitration proceedings shall take the form of remote
hearing(s).
4. If at an appropriate stage of the proceedin gs any party so requests, the arbitral tribunal shall hold
hearin gs for the presentation of evidence by witne sses, including expert witnesses, or for oral argument. In
the absence of such a request, the arbitral tribuna l shall decide whether to hold such hearings or whether
the proceedings shall be conducted on the basis of documents and other materials. A hearing ordered by
the arbitral tribunal in terms of this paragraph may be held in person or take the form of a remote hearing,
as the arbitral tribunal, having considered all relevant circumsta nces, may direct.
5. All commun ications to the arbitral tribunal by one party shall be communicated by that party to all othe r
parties. Such communications shall be made at the same time, except as otherwise permitted by the
arbitral tribunal if it may do so under applicable law.
6. The arbitral tribunal may, at the request of any party, allow one or more third persons to be Joined in the
arbitration as a party provided suc h person is a party to the arbitration agreement, unless the arbitral
tribunal finds, after giving all parties, including the person or persons to be joined , the opportunity to be
heard, that joinder should not be permitted because of prejudice to any of those parties. The arbitral
tribunal may make a single award or several awards in respect of all parties so involved in the arbitration.
7. Any hearing or other meeting held by the arbitral tribunal with the parties under these Rules may be held
in person or remotely. Particularly where an evidentiary hearing is to be held remotel y, the arbitral tribunal
should consult with the parties for purposes of issuing directions to ensu re that the remote hearing is
conducted efficiently, fairly and, to the extent possible, without unintended interruptions.
2 Artlcle 25
1 A party may apply to the arbitral tribunal for the early dismissal of a claim or defence on the basis that:
(a) A claim or defence is manifestly without -merit; or
(b) A claim or defence is manifestly outside the Jurisdiction of the arbitral tribunal
2 The application must be made as promptly as possible after the communication of the' relevant claims
or defences.
3. An application for the early dismissal of a claim or defence under paragraph 1 shall state in detail the
facts and legal basis supportin g the application. The party applying for early dismissal shall , at the same
time as it files the application with the arbi tral tribunal, send a copy of the application to the other party,
and shal l notify the arbitral tribunal that It has done so, specifying the date and mode of service.
4. The arbitral tribunal may, in its discretion, allow the application for the early dismissal of a claim or
defence under paragraph 1 to proceed. If the application is allowed to proceed, the arbitral tribunal shall,
after giving the parties the oppor tunit y to be heard and after receiving evidence and argument, decide
whether to grant, in whole or in part, or dismiss the application for early dismissal under paragraph 1.
s. It the application 1:1 1rnowed to proceed, tne artJltrat tribunal shall make an order or award on the
application, with concise reasons. The order or award shall be made within 60 days of the date of filing of
the application, unless , in exceptional circumstances, the Association, at the request of the arbitral
tribunal, extends this period by means of a written notice to the parties and the arbitral tribunal.
14
of the Arbitrator of no merit whatsoever and does not detract
from the fact that an exception is nothing but an application
under a different name. Accordingly, the Arbitrator has the
authority to deal with an exception and in doing so is not
acting ultra vires his authority as is submitted by HBC '.
[19] After having noted the above, the arbitrator meticulously and in detailed
paragraphs, dealt with each point raised by HBC at the hearing of what was, in
essence, CTMM's early termination application. In fact, the record indicated that
this is expressly what Adv Dewrance SC argued, once the misnomer of the
application and the erroneous reference to the 6th Edition of the Rules had been
squared away. The arbitrator thereafter dealt with each of the grounds relied on
for the early termination, by way of the CTMM's "exception".
[20] The interim award was thereafter published on 9 February 2026 in the
following terms: "(I) the points in limine raised by HBC are dismissed with costs
including the cost of two counsel: (2) the grounds of exception raised by CTMM,
save in regard to Second Ground of Exception, are uphold with costs including
the costs of two counsel,· (3) claims 1 to 9 of the SOC are struck out. (4) the costs
awarded in 73.2 above are awarded on the party and party scale with Scale C,
as provided for in amended Uniform Rule of Court 69(7), being applicable to
counsels' fees; (5) HBC is directed to deliver an amended statement of claim
within 14 calendar days of publication of this interim award''. The expiry date
of the 14 day time period to deliver an amended statement of claim was 23
February 2026 (when counted as calendar days as provided for in A11icle 2(5)).
[21] On the day after the interim award, HBC obtained an order from this court
in the following terms:
"3. The time periods contemplated in paragraph 3.3 of the order
15
granted by this Honourable Court on 8 August 2025 under
case number 063413/2024, are hereby varied and extended so
as to extend the period within which the arbitration
proceedings (including the delivery and/or publication of the
arbitration award) to 30 June 2026.
4. The agreement reached between the parlies on or about 19
October 2025, in terms of which the period for the conclusion
of the arbitration was extended to 30 June 2026, is valid and
binding, and directing such agreement be made an order of
court.
5. The arbitration proceedings currently pending before the
Third respondent are valid and lawful.
6. Third respondent is hereby authori=ed to proceed with and
finalise the arbitration in accordance with the court order
dated 8 August 2025, save to the extent amended by
paragraph 3 and/or 4 above".
[22] The BBC 's response to the interim award was to send an email to the
arbitrator on 11 February 2026. This was two days after the publication of the
interim award. In the letter from HBC 's attorneys , they repeatedly stated that the
award will be taken on review and that the arbitrator had no power to have made
such an award. The attorneys also called upon the arbitrator to recuse himself.
[23] On 16 February 2026 the arbitrator responded to the abovementioned
letter, stating that it would be inappropriate for him to respond thereto until such
time as a "formal recusal application " and a review applicat ion were launch ed.
[24] On 23 February 2026, HBC delivered a formal notice in terms of Articles
16
133 and 144, calling upon the arbitrator to withdraw from the arbitration . The
grounds relied on were extensive. They included a formal challenge based on a
perceived lack of impartiality. The findings made against HBC in the interim a
"and subsequent correspondence" were raised as grounds. In addition, the
arbitrator was accused of having committed multiple acts of misconduct by the
following: the adoption of a programme that would not conclude within 4 months
as ordered by the court; by communicating rules contradictory to court orders and
terms of appointment; by refusing to confirm availability to conclude proceedings
by the agreed date; by expressing or recording that parties waived their rights
during meetings, which the applicant denied; by allegedly ignoring procedural
rights, including the right to challenge jurisdiction and by having allowed the
exception to proceed as an application in te1ms of Article 25(1)5. In addition, the
arbitrator was criticised for having determined issues concerning prescription and
time-bar at the exception stage without evidence. All these acts were alleged to
have "collectively" undermined the fairness and impartiality of the arbitration
3 Article 13
1. Any arbitrator may be challenged If circumstances exist that give rise to Justifiable doubts as to the
arbitrator's Impartiality or Independence.
2. A party may challenge the arbitrator appointed by It only for reasons of which It becomes aware after the
appointment has been made.
3. In the event that an arbit rator falls to act or in the event of the de Jure or de facto impossibility of his or
her performing his or her functions, the procedure in respect of the challenge of an arbitrator as provided
in article 14 shall apply.
• Article 14
1. A party that intends to challenge an arbitrator shall send notice of Its challenge within 15 days after It has
been notified of the appointment of the challenged arbitrator, or within 15 days after the circumstances
mentioned in articles 11, 12 and 13 became known to that party.
2. The notice of challenge shall be communicated to all other parties, to the arbitrator who is challenged
and to the other arbitrators. The notice of challenge shall state the reasons for the challenge .
3. When an arbitrator has been challenged by a party, all parties may agree to the challenge, in which case
the arbitrator shall withdraw from his or her office. The arbitrato r may also, after the challenge, withdraw
from his or her office. In neither case does this Imply acceptance of" the validity of the grounds for the
challenge.
4. If, within 15 days from the date of the notice of challenge, all parties do not agree to the chal lenge or the
challenged arbitrator does not withdraw, the party making the challenge may elect to pursue it. In that case,
within 30 days from the date of the notice of challenge, it shall seek a decision on the challenge by the
Association.
5 Article 25(1)
1 A party may apply to the arbitral tribunal for the early dismissal of a claim or defence on the basis that:
(a) A claim or defence is manifestly without-merit; or
(b) A claim or defence is manifestly outside the Jurisdiction of the arbitral tribunal.
17
process.
[25] CTMM delivered an extensive opposition to the request for
withdrawal /recusal on 2 March 2026, arguing that the arbitrator had not, in its
opinion, committed any gross irregularity and that there were no grounds upon
which any person could reasonably form the opinion that the arbitrator had been
biased. CTMM was of the opinion that the challenge was ·' ... founded upon
dissatisfaction with adverse procedural rulings and represents an impermissible
attempt to re-litigate the Interim Award under the guise of recusar.
[26] The arbitrator had elected not to withdraw from the arbitration and on 10
March , delivered an extensive written "decision", documenting his reasons for
not doing so.
[27] In the meantime , and upon HBC's failure to deliver an amended statement
of claim, the CTMM delivered a notice in terms of Article 326 on 3 March 2026.
[28] Pursuant hereto, the arbitrator on 5 March 2026 called upon HBC to deliver
an answer to the Article 32 application by 11 March 2026. This date was extended
by yet another subsequent invitation by the arbitrator on 12 March 2026, to no
avail. This second invitation read as foJlows: ·'/ note that, despite my request in
8 Article 32
1. If, within the period of time fixed by the se Rules or the arbit ral tribunal, without showing sufficient cause:
(a) The claimant has failed to communicate its statement of clai m, the arbitral tribunal shall
issue an order for the termination of the arbitral proceed ings, unless there are remaining
matter s that may need to be decided and the arbitral tribunal cons iders it approp riate to do
so;
(b) The respondent has failed to communicate its response to the notice of arbitrat ion or its
statement of defenc e, t he arbitral tribunal shall order that the proceedings continue, without
treating such failure in Itself as an admis sion of the claimant's allegations; the provisions of
this subparagraph also apply to a cla imant 's failure to submit a defen ce to a counterclaim or
to a claim for the purpose of a set-off.
2. If a party, duly notified under these Rules, fall s to attend a heari ng or other meetin g, without showing
5ufficient cause for such failure, tne arottral tribun al may proceed with the arbitrat ion or meeting.
3. If a party, duly invited by the arbitral tribunal to produce documents, exhibits or other evidence, fails to
do so within the established period of time, without showing sufficient cause for such failure, the arbitral
tribunal may make the award on the evidence before it.
18
my email dated 5th March 2026, the Claimant has not delivered an answering
affidavit. Under the circumstances am I to assume that the Claimant does not
intend filing an answering affidavit? Your response is awaited by no later than
close of business tomorrow".
[29] In the end, on 17 March 2026 the arbitrator terminated the arbitration by
way of an award whereby the CTMM ' s Article 32 application was upheld.
[30] This prompted the launching of the current application on 30 March 2026
for the relief set out earlier. As a basis for the urgent hearing of the matter, the
applicant relied on the extended date for finalisation of the arbitration on 30 June
2026. I accepted that, when the matter came before me last week, that the parties
needed an urgent resolution of the review application , hence the speedy delivery
of this judgment.
The grounds of review
[31] In an extensive founding affidavit to the review application , the applicant's
attorney, Mr Dyushu, listed sixteen grounds of review (from par 317 of the
affidavit onwards). HBC's director had filed a confirmatory affidavit thereto.
The 16 grounds of review were stated as follows:
I. Failure to conduct the arbitration in accordance with court orders
'
terms of appointment and section 23 of the Arbitration Act· '
2. Failure to disclose prior professional familiarity with counsel and
breach of the applicable disclosure duties;
3. Material mischaracterisation of the record Concerning waiver of
section 23 and the court ordered time limil ·
'
19
4. Adoption of the wrong procedural regime and failure properly to
acquaint himself with the applicable rules;
5. Unfair conduct and alignment with the first respondent during the
14 October 2025 pre-arbitration meeting ;
6. Entertaining an incompetent exception instead of requmng
compliance with Rule 22;
7. Refusal to permit the applicant a substantive response and
jurisdictional challenge to the exception;
8. Proceeding with the exception process despite unresolved
uncertainty about the applicant rules;
9. Requiring the applicant to begin argument on the first respondent's
application ;
l 0. Re-characterising the exception as an Article 25 application under
the gth edition rules;
11. Determining prescription and contractual time-bar on the pleadings
where evidence was required;
12. Permitting and adopting a procedural ambush ;
13. The recusal ruling, intemperate language, and the cumulative
apprehension of bias;
14. Lack of _jurisdiction to proceed with and determin e th e Rule 32
termination application while the recusaJ challenge remained
20
pending;
15. Costs orders made pursuant to irregular processes and without
proper procedural foundation ;
16. The decision to terminate the arbitration was always fait accompli
since the second pre-arb meeting on 14 October 2025.
The law regarding the review of arbitration awards
[32] Section 33(1) of the Arbitration Act7 (the Act) allows an aggrieved party to
approach this court for relief. To the extent relevant for present purposes , s 33( 1 ),
which is headed 'setting aside of awards", provides as follows: "(l ) Where - (a)
any member of an arbitration tribunal has misconducted himself in relation to his
duties as arbitrator . .. ; or (b) an arbitration tribunal has committed any gross
irregularity in the conduct of the arbitration proceedings or has exceeded his
powers; or (c) .. . ; 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."
[33] In OCA Testing and Certification South Africa (Pty) Ltd6 the Supreme
Court of Appeal restated the current state of the law relating to the circumstances
in which a court will come to the aid of a party relying on s 33(1) of the Act. The
grounds of review which must be established are either misconduct by the
arbitrator or the comittal of gross irregularities in the matter in which the
arbitration had been conducted. In this regard, Hanns JA (as he then was)
conducted an analysis of a series of judgment s in Telcordia Technologies Inc v
Telkom SA Ltcf (Telcordia). Harms JA 10 cited a passage from the judgment of
7 42 of 1965.
8
(1226/2021) (2023) ZASCA 13 (1 7 February 2023).
9 2007 (3) SA 266 (SCA).
10 At para 72.
21
Mason J in Ellis v Morgan; Ellis v Desai 11 (Ellis) in which the position was
succinctly stated as follows: "But an irregularity in proceedings does not mean
an incorrect judgment; it refers not to the result, but to the methods of a trial,
such as, for example, some high-handed or mistaken action which has prevented
the aggrieved party from having his case fully and fairly determined''.
[34] Reference was also made in Telcordia12 to Gold.fields Investment Ltd v City
Council of Johannesburg 13 (Gold.fields), by stating that an arbitrator misconceives
the nature of the inquiry in instances where he or she fails to perform his or her
mandate. And "[b]y misconceiving the nature of the inquiry, a hearing cannot in
principle be fair because the body fails to perform its mandate".
[35] In Goldfields Schreiner J was forthright when he, with reference to Ellis
said: '' ... it is not merely high-handed or arbitra,-y conduct which is described as
a gross irregularity,· behaviour which is perfectly well-intentioned and bona fide,
though mistaken, may come under that description. The crucial question is
whether it prevented a fair trial of the issues. If it did prevent a fair trial of the
issues then it will amount to a gross irregularity".
[36] Palabora Copper (Pty) Ltd v Motlokwa Transport and Construction (Pty)
Ltd14 the Supreme Court of Appeal reiterated that where "an arbitrator engages
in the correct enquiry, but errs either on the facts or the Law, that is not an
irregularity and is not a basis for setting aside an award' 15• This is in keeping
with the abiding princip le that whenever parties elect to resolve their disputes
through arbitration, courts must defer to the parties' choice and not lightly
11 1909 TS 576 at 581.
" At para 73.
13 1938 TPD 55 1 at 560-561 .
14 [2018] 2 All SA 660 (SCA).
15 Ibid para 8.
22
intervene. 16
Was the review of the interim award time-barred?
[37] ln heads of argument delivered in this court on behalf of the arbitrator, the
point was taken that the review of the interim award was time-ban-ed. This point
was grounded in section 33(2) of the Act which prescribes that a review
application must be made within six weeks of the publication of the award.
[38] The interim award was published on 9 February and the six weeks period
expired on 23 March 2026. Despite having threatened repeatedly to do so, HBC
only launched the review application out of time on 30 March 2026. This caused
the interim award, in the words of Adv Maritz SC, who appeared with Adv
Manning for the arbitrator, to have become "cast in stone".
[39] Adv Ntuli, who appeared for HBC, countered that, as the interim award
was only interim in nature and not of final effect, it could not be reviewed until
the arbitration had been terminated.
[ 40] As a general proposition , Adv Ntuli ' s contention might be correct, but in
my view, he lost sight of two important considerations, raised by HBC itself. The
first is the contention that the arbitrator had acted ultra v;res and without any
jurisdiction in entertaining the "exception " and secondly that the decision he
made in respect of prescription had the effect of finally disposing of at least a part
of HBC's claims.
[ 41] CTMM also relied, by way of its Article 32 application, on the portion of
the interim award which required HBC to amend its statement of claim, should it
wish to keep its cause of action (and the arbitration) alive. This made the interim
16
Lufhuno Mphahluli and Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC) at para 219
23
award enforceable and therefore final m nature. 17 Adv Ntuli's counter can
therefore not be sustained.
[ 42] I therefore find that the review of the jnterim award was time-barred and
must fail on this basis alone. This has serious consequences for the review of the
termination award as the fulcrum on which the termination award hinged was the
failure ( or more correctly, the refusal) of HBC to deliver an amended statement
of claim. Once the requirement (or leave) to amend has been time-barred from
being reviewed, then the principal basis for review of the termination award falls
away.
[43] Ifl were to be wrong on the issue of time-barring and, having regard to the
somewhat conflated grounds on which HBC still maintained the awards should
be reviewed and set aside, I am of the view that the application should still fail.
The reason for this is that, in my view, none of the grounds of review advanced
by HBC holds any water. I shall demonstrate this below by dealing with all of
the sixteen grounds advanced, commencing with those directed at the time period
for the conclusion of the arbitration, whereafter I shall deal with those directed
specifically at the interim award and thereafter consider those related to the
termination award. In the final instance, I shall deal with the grounds of alleged
misconduct by the arbitrator
Analysis of the time-period grounds
[ 44] The first and third grounds relied on by HBC ' s attorney in his affidavit
relate to this topic.
[45] The first ground was formulated as follows: Failure to conduct the
arbitration in accordance with court orders. terms of appointment and section 23
17
See in this regard Krohne (Pty) Ltd v Strategic Fuel Fund Association (Case no 476/2023) [2024] ZASCA
99 (14 June 2024).
24
of the Arbitration Act. The point which HBC sought to make was that an order
of court restricted the arbitrator to the conclusion of the arbitration within four
months and that he, in breach thereof" ... from the outset adopted and enforced a
programme inconsistent w;th the court-ordered timetable, treated compliance
with that timetable as optional or impractical ... " (to quote from para 319 of
HBC's attorney's affidavit).
[ 46] This accusation is not only without a factual basis, but loses sight of a
number of fundamental aspects. The first is that the court order did not provide
a "timetable", it only provided for commencement and conclusion dates. The
second is that the court order was made by agreement between the parties.
Although the agreement was sanctioned by a court, its origin was, similarly as
arbitration proceedings itself, an agreement between disputing parties.
[47] A next important factor to consider, is that the timetables contained in the
minutes of the first and second pre-arbitration meetings (and the consequential
directive of29 October 2025) reflect agreements between the parties themselves.
They were not compiled by nor directed or imposed by the arbitrator.
[ 48] One should also bear in mind that the request for a second pre-arbitration
meeting in order to fix new timetables came from HBC, as a result of it
unilaterally terminating the mandate of its erstwhile attorneys and senior counsel.
[ 49] In HBC's application for extension of the initial conclusion date of the
arbitration from 20 January 2026 to 30 June 2026, HBC's attorney, on oath stated
that he really did not believe that a request for extension was necessary, because
there was an agreement between the parties and agreements should be honoured.
This much is clear from the following express statements made in the affidavit in
supp ort of the application for extension:
25
"36. At that meeting, and pursuant to the discussions between the
parties, an agreement was reached regarding a revised
procedural timetable for the arbitration. In particular, the
parties agreed that the arbitration would proceed in
accordance with a revised programme, with the period for the
conclusion of the arbitration being extended to 30 June 2026.
38. At all material times following the pre -arbitration meeting of
19 October 2025, the arbitration proceeded on the shared
understanding that the parties were bound by the revised
timetable and that the arbitration would be brought to finality
in accordance therewith.
58. Arbitration, by its very nature, is a consensual dispute
resolution mechanism. Party autonomy lies at its core, and
procedural agreements concluded within the arbitral process
are accorded particular significance, as they regulate not
only the rights of the parties, but the orderly administration
a/justice within the arbitration itself
76. The arbitration continued thereafter under the management
of the Third Respondent and pursuant to the agreed
procedural framework. Afurther pre- arbitration meeting was
convened on 11 December 2025, at which the parties again
engaged on the conduct of the arbitration and confirmed the
operative procedural arrangements. The minutes of that
meeting are annexed hereto marked "FA 4 ".
89. But .for the First Re.:5pondent's conduct and refusa l l o
cooperate in giving effect to the agreed procedura l
26
framework , the present application - and the attendant costs
and urgency - would have been entirely unnecessary.
101. The urgency of this application is intensified by the/act that
the arbitration was already actively underway pursuant to an
agreed and operative procedural framework, with hearing
dates allocated/or March 2026, and with the parties having
expressly agreed that the arbitration would be finalis ed by 30
June 2026 '.
[50] The accusations levelled against the arbitrator are therefore not only
without foundation , but scurrilous. I shall return to this aspect at the time of
exercising this court 's discretion in relation to a proper award for costs.
[51] The third ground of review also falls under the rubric of time periods for
conclusion of the arbitration. It was formulated as follows: Material
mischaracterisation of the record concerning waiver of section 23 and the court
ordered time limit. Section 23(a) of the Act contemplates the delivery of a final
award within four months of an arbitrator becoming seized with an arbitration 18.
The section itself, however, also contemplates that the parties may in writing
extend this period. 19
(52] HBC seeks to rely on a statement made by its erstwhile senior counsel at
the first pre-arbitration meeting, when asked about the waiver of HBC 's rights in
terms of section 23, to the effect that he has no instructions to do so. Despite this
18 Section 23 The arbitration tribunal shall, unless the arbitration agreement otherwise provides, make
its award - (a) in the case of an award by an arbitrator or arbitrators , within four months after the date on
which such arbitrator or arbitrators entered on the reference or the date on which such arbitrator was or
such arbitrators were called on to act by notice in writing from any party to the reference, whichever date
b e the e orli o r dato ...
' 9 ••• or before any later date to which the parties by any writing signed by them may from time to time extend
the time for making the award: Provided that the c.o.ur:t may, on good cause shown, from time to time extend
the tim e for makin g any awatd, whether that tim e has expired or not.
27
statement, the record further shows that the parties have thereafter indeed agreed
on time periods which would in all likelihood go beyond four months. Not only
does this indicate a clearly implied waiver of the section 23 rights, but the minutes
referred to earlier in the judgment , clearly constituted pe1missible agreements
between the parties, as contemplated in section 23.
(53] The allegation by BBC ' s attorney in this regard, made in para 321 of his
founding affidavit cannot be sustained. Therein, the attorney stated: The
[arbitrator J repeatedly proceeded on the footing that the parties had waived their
rights under section 23 and, by implication, their entitlement to insist on
compliance with the court-directed timetable. The [HBC 's] case, however, ;s that
the record shows the opposite, namely that the applicant insisted on compliance
with the court order and did not waive those protections. This
mischaracterisation of the record lies at the hear of the review ". Adv Ntuli had
difficulty in reconciling these statements by the attorney with those made in the
application for extension of the original order. As I understood him, his argument
was that the affidavits were meant to serve different objectives, the one being a
review and the other an extension oftime. l shall revisit this aspect when dealing
with the issue of costs, but suffice to say that I cannot find that the arbitrator had
committed any gross irregularity when he accepted the timetable agreed to
between the parties.
Analysis of the grounds of review relating to the bearing of CTMM's
"exception"
[54] Of the sixteen grounds of review relied on by CTMM, grounds 6 to 12
relate to this topic.
[55] The sixth ground of review has been fotmulated as follows: Entertaining
an incompetent exception instead of requiring compliance with Rule 22. HBC's
attorney expanded on this ground as follows: "The [arbitrator] exceeded his
28
powers and committed a gross irregularity by entertaining a purported exception
in circumstances where the applicable rules and his own procedural directions
required [CTMM] to file a statement of defence ". This objection, leaving aside
for a moment the fact that CTMM had sty led its objections to the statement of
claim as an exception, implies that CTMM had no rights to apply for an early
termination of the arbitration in circumstances where the statement of claim
discloses no valid cause of action. Not only would such a contention be
untenable, but to hinge it on an agreed timetable for delivery of a statement as
defence as the basis for such an exclusion, is simply elevating form or technicality
to a new and unsustainable level.
[56] The seventh ground of review was the following: Refusal to permit the
applicant a substantive response and jurisdictional challenge to the exception.
HBC's attorney, in his affidavit, alleged that the arbitrator had " ... committed a
gross irregularity and procedural unfairness by refusing [HBC] the opportunity
to file a substantive written response and a jurisdictional challenge to the
purported exception ... ".
[ 57] It is not entirely clear what the basis of this ground is. While it is correct
that the stance of HBC, expressed in a letter from its attorneys on 8 December
2025 and at the outset of the subsequent third pre-arbitration meeting of 11
December 2025, was that it wished to bring a counter-application to the
exception, raising the issue of jurisdiction , it ultimately agreed not to do so. This,
the attorney expressly confirmed in his affidavit as follows (at par 207 thereof);
"[HBC] agreed that it would not bring a separate application on the arbitrator's
jurisdiction to grant the relief sought and would instead raise those issues in its
heads of argument" (my emphasis).
[58] Once such an agreement had been reached between the parties, it is not
open for HBC to ex post facto (after the event and only now that the award had
29
gone against it) claim that it had been ·'refused" an opportunity to deal with its
jurisdictional objections to the arbitrator entertaining the exception. Apart from
the agreement on procedure, this purported ground is also factually without
foundation as HBC had indeed been given the opportunity to raise its objections
and to present them in heads of argument, which were fully ventilated and argued.
I agree with the arbitrator that issues such as those which were raised in the
exception, were issues of law and not fact. Those issues are customarily dealt
with by way of argument, in similar fashion as had been done in this instance. A
counter-application was therefore not a requirement for the issue to be dealt with.
[59] The eighth ground of review was formulated as follows: "Proceeding with
the exception proc ess despite unresolved uncertainty about the applicable rules".
This ground harkens back to the issue referred to earlier, namely that in the
agreement between the parties which featured in the minute of 19 September
2025, reference was made to the 6th edition of the Rules. Adv Ntuli has however,
during the hearing of this matter, in open court conceded that the common
intention of the parties had all along been that they intended the most recent and
current edition of the Rules, namely the 8th edition, to govern the arbitration
process. This is what was referred to in para 3.4 of the order of Collis J and also
what transpired during the hearing of the exception. In light of this concession,
for HBC to attempt to elevate the reference to an incorrect edition in the parties'
initial pre-arbitration meeting ( and which incorrect reference was followed in the
formulation of CTMM's notice of exception) to "uncertainty" which would
amount to a gross irregularity, amounts to a proverbial snatching at a bargain or,
equally proverbialJy, a clutching at straws.
[60] The ninth ground of review is equally an attempt to clutch at straws. For
[60] The ninth ground of review is equally an attempt to clutch at straws. For
this ground, HBC's attorney alleged that "requiring [HBC] to begin argument on
[CTMM] 's application" (incidentally correctly characterising the exception as an
early termination application), amounted to " ... a further act of unfairness and
30
irregularity". This argument clearly loses sight of the fact that HBC was the party
that had raised points in limine. It is not only customary , but proper that a party
which raises such points, be given the opportunity to do so first, before anyone
else is heard. For the arbitrator to have proceeded in this customary fashion was
not only to HBC's benefit, but can hardly be said to have been unfair, let alone
constitute an irregularity.
[61] The tenth ground of review appears to actually be the nub of HBC's
complaint. The alleged gross irregularity referred to in this ground, was
committed by "re-characterising the exception as an article 25 application under
the 81h edition rules".
[62] As indicated earlier, Article 25(1) of the said rules permits a party to an
arbitration to bring an application for the early termination of the proceedings
where it appears that "a claim or defence is manifestly without merit". It is true
that CTMM's attempt to bring about this result was styled as a notice of exception
and that reference was made (again erroneously) to the 6th edition of the Rµles,
but what was debated before the arbitrator, was that one should look beyond the
form of CTMM' s document, to the substance thereof. Changing the label of the
document from "exception " to "A11icle 25 application " and correcting the
reference to the Rules, was what was argued on behalf of CTMM and this is the
basis upon which the substance of the document , which had not been changed
one iota by such relabelling, had been argued and considered. To have insisted
on a formal "relabelling" of the document, would have elevated form over
substance and may have caused further delays in the proceedings.
(63] I find that the arbitrator had been perfectly within the scope of Article 18
to have dealt with the matter in the fashion that he did, by grappling with the
substance of what was before him. It would have been absurd to have an
substance of what was before him. It would have been absurd to have an
arbitration proceed on what was found to be defectively pleaded causes of action,
31
simply because form should trump over substance , which is effectively what
HBC contended for.
[64] In applying the dictum in Goldfields referred to in para [33] above, I find
that the manner in which the arbitrator had dealt with the matter, had not
prevented a fair trial on the substance of CTMM's objections to the formulation
of HBC ' s statement of claim. It also did not prevent a fair ventilation of the points
in limine raised by HBC. Both parties were represented by counsel and had the
opportunity to present both written and oral argument. Therefore, no irregularity,
gross or otherwise, has been committed which would justify a setting aside of the
interim order.
[65] I am further of the view that this finding of the absence of prejudice or
unfairness, is fortified by the fact that, irrespective of the fact that the exception
was ultimately dealt with as an application in terms of Article 25, HBC was in
the interim award granted the opportunity to remedy the defects in its statement
of claim. The fact that it chose not to do so, cannot be blamed on the arbitrator.
[66] The eleventh ground of review was that the arbitrator had determined
''prescription and contractual time-bar on the pleadings where evidence was
required ". Again , as already stated above, the matter was dealt with on the
acceptance of the averments pleaded by HBC in its statement of claim. The
finding was simply, on the acceptance of those averments, that certain of the
claims had become prescribed. There is nothing unprocedural or irregular in
considering this issue (in similar fashion as a special plea) on the "pleadings "
alone as a conclusion in law. To put it even simpler, the conclusion amounted to
the following: in the event that HBC has pleaded in its statement of claim that the
facts relied on were A,B and C, then on the face of that statement and on the
application of the law of extinctive prescription , the claims in question had
become prescribed . No evidence was needed to make such a determination.
32
Insofar as HBC wishes to contend that the "history of the matter" was relevant,
the finding by the arbitrator was simply that that had not been pleaded and that
HBC was given the opportunity to do so by the delivery of an amended statement
of claim. I find no irregularity in this.
[67] The twelfth and last ground of review of the interim award was that the
arbitrator had "permit[ed} and adopt[ed} a procedural ambush". Despite the
accusatorial wording of this ground, it is very much similar to the form over
substance argument advanced as the tenth ground. BBC 's attorney argued it as
follows in par 330 of his affidavit: "The [arbitrator] permitted and ultimately
adopted a procedural shift by [CTMM] from its original footing to one based on
article 25 of the 8th edition. [HBC} ·s case is that this amounted to procedural
ambush and that the [arbUrator J erred in permiLting and acting upon that shift".
Insofar as this contention might suggest gross irregularity, it is rejected in the
same fashion as the tenth ground of review has been rejected above. Insofar as it,
however alleges that the arbitrator has erred, that is not a ground for review and
what effectively amounts to an appeal cannot be entertained as a ground of
review20 • There was also no "ambush" as the substance of the objections to the
statement of claim had been fully ventilated.
The termination award
[68] As the foutteenth ground of review, HBC contended that the arbitrator
"lack[ed] jurisdi ction to proceed with and determine the Rule 32 termination
application while the recusal challenge remained pending " (the reference to Rule
32 is taken as having meant to be a reference to Article 32 of the Rules).
[69] Although one may not be blamed for contemplating whether the finalising
of an award was not perhaps premature whilst an objection had been made to the
20
KW Plant Hire v Ahier (2672/2008) (2009) ZAECGHC 41 (30 June 2009).
33
arbitrator remaining in office as it were, this ground of review was raised on the
basis of an alleged lack of jurisdiction to do so.
[70) As indicated above, in the letter from HBC's attorneys dated 11 February
2026 the arbitrator was invited to recuse himself. He was informed that, should '
he not do so by 16 February 2026, HBC "will bring aformal application before
you for your recusal ".
[71] Pursuant hereto, the arbitrator on 16 February 2026, declined this
invitation, indicating that he will await the formal application . Such a formal
application was then made by HBC on 23 February 2026, by way of the delivery
of a notice in tem1s of Articles 13 and 14. As indicated in footnote4 above, Article
14.3 provides that, upon receipt of such a notice, an arbitrator may voluntarily
"withdraw from office" or the parties may jointly agree on his withdrawal. The
latter did not take place. In fact, there is no evidence that such an agreement was
ever sought or explored by HBC, perhaps not unsurprisingly so, given CTMM's
opposition to the withdrawal notice. In respect of the former, the arbitrator had
delivered his decision not to withdraw in a formal document on 10 March 2026.
[72] Article 14.4 provides that, if no voluntary vacation of office or an
agreement to that effect had occurred within 15 days of the relevant notice, the
objecting party may "elect to pursue it" . This election can be exercised by a
referral of the objection to the Association of Arbitrators (the Association) within
30 days of the initial notice.
[73] It is common cause that no such referral had taken place by the time of the
te1mination award and also common cause that the 30 day period had by then not
yet expired. This is HBC' s point. There is, however, no provision which suspends
either the arbitration proceeding ::; or the arbitrntor·s powers, pending Lhe expiry
of the 30 day period. The delivery of such a notice does not have a similar effect
34
to that of the delivery of an application for leave to appeal in civil proceedings in
this court. On an evaluation of the legal position. there is therefore no suspension
or limitation of the arbitrator's powers in this period. The review point is therefore
bad in law.
[74] In addition, at no stage since the delivery on 10 March 2026 of the
arbitrator's decision not to withdraw from office, has HBC indicated that it has
elected to refer its objection to the Association . In addition, at no stage since
CTMM had applied for a termination award as contemplated in Article 32, nor
upon receipt of the arbitrator's requests to respond thereto, had HBC made such
an election known to the arbitrator or HBC.
[75] Both in the termination award and in his answering affidavit, the arbitrator
made the point that Article 32, by use of the word "shall", obliged an arbitrator
to issue a termination award upon the failure by a claimant to deliver a statement
of claim within a time period determined by the arbitrator. ln the context of the
present matter, this refers to the delivery of an amended statement of claim within
the 14 days which had expired on 23 February 2026.
[76) I therefore find that no irregularity had been committed by the arbitrator in
having determined the Article 32 application and by having issued the termination
award.
The remaining grounds of review
[77] The second ground of review was formulated as follows "Failure to
disclose prior professional familiarity with counsel and breach of the applicable
disclosure duties ". In support of this ground, HBC 's attorney claimed in para
320 of his affidavit that the arbitrator had failed to disclose his " .. .prior
famUiarity with counsef' . No particularity of this alleged familiarity was given,
nor was it claimed that it gave rise to any real or apprehended conflict of interest.
35
The arbitrator dealt with this aspect in his answering affidavit and denied any
familiarity with CTMM's counsel.
[78] In his replying affidavit, BBC's attorney said that HBC was ' .. .prepared,
for present purposes, to accept that denial as his version ... [but} nevertheless
stand by what is objectively patent from the contemporaneous record of 19
September 2025 .. . ". Having tTawled through that record, I could not find any
"patently obvious" familiarity with the counsel for CTMM. In fact, the opposite
appears, namely a familiarity with the senior counsel then briefed on behalf of
HBC, Adv Wasserman SC who greeted the arbitrator by saying that they haven't
seen each other "fo r ages". While there was initially some use of first names, the
senior counsel for the two parties appeared to be the ones who knew each other
very well, but nothing turns on this.
[79] I find no factual support for the suggestion that there was an improperly
familiar relationship between the arbitrator and the counsel for CTMM, nor the
unstated but subtly suggested accusation that the arbitrator had acted in a biased
fashion as a result of any suggested familiarity. In short, this point of review is
devoid of both particularity and merit.
[80] As a fourth ground of review, BBC 's attorney claimed the following;
"Adoption of the wrong procedural regime and failure properly to acquaint
himself with the applicable rules". In para 322 of his affidavit the attorney
accused the arbitrator of having " ... proceeded on an incorrect and confused
understanding of the procedural regime governing the arbitration, alternatively
on no coherent understanding at all". This issue relates to the initial common
error between the parties relating to the 6th edition of the rules, while the correct
edition was the 8111 edition. The error and initial confusion was not of the making
of the arbitrator, but of the parties themselves, who had referred to the incorrect
of the arbitrator, but of the parties themselves, who had referred to the incorrect
edition in their first pre-arbitration meeting. This ground is therefore not only
36
without substance, but has been formulated (and repeated) in an insulting fashion.
To further claim that the arbitrator had " ... failed to acquaint himself with the
applicable 8th edition rules ... "and that this amounted to a gross irregularity and
misconduct, is to add insult to injury.
[81] The fifth ground of review advanced by HBC was the alleged " Unfair
conduct and alignment with the first respondent during the 14 October 2025 pre
arbitration meeting". BBC's attorney accused the arbitrator in para 323 of his
affidavit of having "... compelled [HBC] away from the court-ordered
frameworlf' and having "accepted [CTMM] 's stance on compliance with the
court order". The facts about how the timetable had resulted in the period initially
agreed on between the parties and which had been included in the initial court
order, having to be extended, have already been dealt with earlier in this
judgment. What the attorney was now trying to do, was to blame the tin1etable
to which the parties' legal representatives have separately agreed to before
returning to the arbitrator on 24 October 2026, on the arbitrator. Once the
agreements on the timetables had been agreed on between the parties, the door
has been shut on any allegation of misconduct on the part of the arbitrator.
Moreover, once those agreements had been reached between the parties, the door
was no longer open for HBC to reasonably form an apprehension that the
arbitrator" ... was no longer approaching the matter with the required neutrality",
as alleged by the attorney (my underlining for emphasis).
[82] The thirteenth ground of review was summarised as follows: "The recusal
ruling, intemperate language, and the cumulative apprehension of bias". Firstly,
there was no "recusal ruling" and no such ruling is contemplated in Article 14.
The arbitrator had merely, in a written document explained why he was not
prepared to withdraw as an arbitrator. The ' intemperate language" was merely
prepared to withdraw as an arbitrator. The ' intemperate language" was merely
that used to describe why the arbitrator was of the view that the grounds relied on
in the Article 14 notice, were without foundation.
37
[83] In the written document complained of, the arbitrator measured the
contents of the Article 14 notice against the decisions in President of the Republic
of South Africa v South African Football Union21and Bernert v Absa22 and in that
exercise used the words about which HBC's attorney complained in paras 289-
292 and 331 of his affidavit, namely that the contentions were "reckless", "bald",
"totally devoid of any substantiation" and "beggars belief '. The lastmentioned
term was used by the arbitrator in response to a suggestion that Adv Wasserman
SC might have acted without a mandate when he agreed to the time-periods
mentioned in the minute of the meeting of 19 September 2025.
[84] I could not find the other quotations ascribed to the arbitrator in the relevant
document. The facts remain that there was no "recusal ruling". There was also
no opposition to the Article 32 application and the subsequent upholding of that
application can therefore not lead to a reasonable apprehension of bias. There is
therefore no substance in this ground of review, which could in any event only
have succeeded if the alleged "intemperate language" which was complained
about, amounted to misconduct which have vitiated a fair hearing in the
arbitration.
[85] The fifteenth ground of review advanced by HBC was to the effect that
"costs orders [were] made pursuant to irregular processes and without proper
procedural foundation". Article 43(1) provides that the award of costs orders fall
in the discretion of an arbitrator. HBC's attorney alleged that the costs awarded
by the arbitrator were " ... ;nfected by the same misconduct, irregularities and
excesses of power ... " alleged in the other grounds of review. In particular, so
the attorney claimed, the costs " ... aspects are said to have followed procedures
that were themselves incompetent, unfair and beyond the [arbitrator 's} lawful
21 1999 (4) SA 147 (CC) at 175F-G.
222011 (3) SA 92 (CC) at para 35.
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" powers ... .
[86] No particularity is provided in respect of which specific ground HBC relied
on for any suggestion that the arbitrator had not properly exercised his discretion
when having made the costs orders. They all followed the success of the
proceedings in which they were awarded. In this regard, the customary rule that
costs follow the event, was followed and there is nothing untoward in this. It
seems that HBC attacked the costs awards based on the attacks on the procedures
which led to the two awards. Should the grounds of review in respect of those
awards be unsuccessful, as 1 have demonstrated should be the case, then the attack
on the costs awards will follow the same route.
[87] The sixteenth and final ground of review was fomrnlated as follows: "The
decision to terminate the arbitration was always fait accompli since the second
pre-arb meeting on 14 October 2025". This alleged ground of review can
summarily be dispensed with. It can never be argued by HBC that the termination
award was always a foregone conclusion. On 14 October 2025, an application in
terms of Article 32 had not even featured and neither was it even contemplated.
It only came to life as a result of subsequent circumstances.
[88] Furthermore, the basis of CTMM 's subsequent Article 32 application , was
that HBC had failed to deliver an amended statement of claim. Had it done so,
the basis of the application would have fallen away and with it, the basis upon
which the arbitrator could have granted the termination award. Furthermore ,
HBC failed or refused to deliver any answering affidavit to the Article 32
application, resulting therein that it went ahead on an unopposed basis. On both
these two grounds HBC was the architect of its own misfortune. HBC ' s own lack
of participation in the arbitration process resulted in the termination award.
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The declaratory relief
[89] During the debate of the matter, I enquired from Adv Ntuli, whether the
declaratory relief sought in prayer 2 of HBC's notice of motion are not merely
findings or conclusions which HBC implored the court to make or reach on the
way to a successful review, but he was adamant that HBC sought these separate
and express declarations against the arbitrator. This is highly uncommon and so
is the relief that the arbitrator forego his fees in the arbitration.
[90] The arbitrator, in his answering affidavit, was at pains to indicate that a
decisionmaker in his position should simply abide the decision of a court when
faced with a review of the decisionmaker 's conduct, and that is what he
customarily does. However, in the present instance where declaratory relief is
sought against him and where the relief not only includes the costs of the review
against him personally, but also the disqualification of the arbitrator's fees to
which he has already otherwise become entitled to, he was obliged to defend
himself.
[91] In interpose to mention at this stage that, due to the nature of the matter,
namely the review of the conduct of a decisionmaker such as an arbitrator, I had
scant regard to the arbitrator's affidavit and have neither treated nor evaluated the
contents of his affidavit in the customary Plascon-Evans fashion. I have dealt
with HBC's allegations on an objective evaluation of the undisputed facts relating
to the events and the procedures in the arbitration itself, including the awards
sought to be reviewed.
[92) Based on an evaluation of those facts, as discussed and analysed above, I
find no grounds upon which the declaratory orders sought, could be justified.
Costs
[93] I am of the view that there are no cogent grounds for not following the
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customary rule that costs should follow the success achieved in the matter.
[94] Although CTMM had argued at the conclusion of its opposition that it
should be entitled to costs on the scale as between attorney and client, and despite
the findings that none of the grounds of review had any merit, I am of the view
that CTMM's costs should be treated in the same fashion as in any other
unsuccessful application . This means that the costs order awarded in favour of
the respondents (including the second respondent , insofar as he may have
incurred any costs) should be on the scale as between party and party. Having
regard to the extent of the matter and the issues involved, I am of the view that it
is justifiable that the costs of counsel be taxable on scale C as contemplated in
Rules 67A and 69 of the Uniform Rules.
[95] The scale of costs to be awarded to the arbitrator is on a different footing.
He has repeatedly and often in a gratuitous fashion been accused of misconduct ,
of having committed gross irregularities on numerous occasions and of having
acted in contempt of court. All these allegations were baseless and, as a senior
officer of this court, he has been aggrieved thereby. I find, in the exercise of the
court 's discretion , that this justifies a costs order on the scale as between attorney
and client. This being the finding, there is no need to make a scale determination
as required for costs orders on a party and party scale.
[96] Adv Maritz SC also strenuously argued for costs against HBC 's attorneys
de boniis propriis and fair warning of this request had been given. As I have
indicated above, it was HBC ' s attorney who had repeatedly made the accusations
against the arbitrator. They were made repeatedly , against a fellow officer of this
court and in a fashion which was argumentative and based on grounds which have
not emanated from, nor can be ascribed to HBC alone23. The attorney and his
23
not emanated from, nor can be ascribed to HBC alone23. The attorney and his
23
See also Protea Assuran ce Co Ltd v Januszkiewi cz 1989 (4) SA 292 (WLD) as an example for the
awarding of such costs.
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client have clearly made common cause with each other and l therefore find it
appropriate that they both, jointly and severaUy be liable for the arbitrator' s costs.
[97] As indicated earlier, the wasted costs occasion by the matter having been
struck from the urgent roll on 14 April 2026, have been reserved. In view of the
conclusions already reached above, those costs should be costs in the review
application and follow the same event.
Order
[98] In the premises the following order is made:
1. The application is dismissed .
2. The applicant is ordered to pay the costs of the first and second
respondents, including the costs of two counsel, where employed.
The costs of counsel shall be taxable on scale C of Rule 69.
3. The applicant and its attorneys are joint ly and severally ordered to pay
the third respondent's costs on the scale as between attorney and
client, including the costs of two counsel, where employed.
4. The costs ordered in paragraphs 2 and 3 above shall include the
wasted costs of the respective parties occasioned by the proceedings
on the urgent court roll of 14 April 2026.
Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 21 and 22 April 2026
Judgment delivered: 30 April 2026
APPEARANCES:
For the Applicant:
Attorney for the Applicant:
For the 1st and 2nd Respondents:
Attorney 1st and 2nd Respondents:
Adv S Ntuli
Dyushu and Majebe Attorneys lnc,
East London
c/o Kally & Co Attorneys, Pretoria.
Adv MA Dewrance SC together with
Adv C Brown
Di ale Mogashoa Attorneys, Inc
Attorneys, Pretoria
For the Third Respondent: Adv MC Maritz SC together with
Adv B Manning
Attorney for the Third Respondent: Terry Mahon
c/o Jacobson & Levy Inc, Pretoria .
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