IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 047694/2025
(1) REPORTABLE: no
(2) OF INTEREST TO OTHER JUDGES: no
(3) REVISED:
15 MAY 2026
SI NAT RE DATE
In the matter between:
PROFOOD AFRICA (PTY) LIMITED Applicant
And
ADVOCATE DH WIJNBEEK First Respondent
STEINWEG (PTY) LTD Second Respondent
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties I their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 15th May 2026.
JUDGMENT
2
RETIEF J
INTRODUCTION
[1] The applicant, Profood Africa (Pty) Limited [Profood], by way of an arbitral
review seeks to set aside an interim arbitration award delivered on the 18th of
February 2025 [the award] by the first respondent, Advocate DH Wijnbeek [the
arbitrator]. The award has final effect [the award]. Profood brings its review relief in
terms of section 33 of the Arbitration Act 42 of 65 [the Act] and seeks this Court, to
inter alia, remit the dispute to a new arbitration tribunal.
[2] For introductory purposes it is meaningful to mention the background of the
main claim serving before the arbitrator. In the main claim the second respondent,
Steinweg (Pty) Ltd [Steinweg] claimed payment from Profood, an importer, for
clearing and forwarding services which it provided to Profood as its clearing agent.
Profood in its amended statement of defence and claim in reconvention denied that
Steinweg complied with its Standard Clearing and Forwarding Trading Terms and
Conditions [the agreement] and, in its claim in reconvention, inter alia, sought an
order declaring clause 4.2 of the agreement, a disclaimer clause, pro non scripto on
the basis that Mr Payton, a director of Profood was not aware of clause 4.2 and that
if he was, he would not have contracted with Steinweg or, he would have procured
the deletion of clause 4.2. Furthermore, Profood sought to assert a tacit or implied
term of the agreement that it would not be liable for the payments made by Steinweg
on its behalf for storage, demurrage, detention and transport charges if such were
incurred as a result of negligent (gross negligent) delays on the part of Steinweg.
[3] Flowing from such claim in reconvention, and by consensual agreement both
parties agreed that the applicability of clause 4.2 should be considered as a
separate issue from the main application. In so doing, it was agreed that the
arbitrator would be seized with determining:
3.1. whether clause 4.2 was to be treated as unenforceable and/or pro non
3.1. whether clause 4.2 was to be treated as unenforceable and/or pro non
scripto ; and
3
3.2. whether there was a duty on Steinweg to point out the existence of
clause 4.2 of the agreement to Michael Payton of Profood.
[4] It is common cause that goods were not cleared within the grace period
afforded by the shipping line and/or port authorities , attracting penalties. The
arbitrator accepted Steinweg's interpretation of clause 4.2 and Profood now
dissatisfied wishes to review the arbitrator's decision.
[5] The thrust of Profood's review relief is that the arbitrator misconceived the
whole nature of his inquiry in that he failed do what he was enjoined to do, he failed
to direct his mind to the true question with reference to Goldfields Investment
matter.1 To distil the misconception Profood's Counsel in written argument
submitted that the arbitrator failed to enquire whether clause 4.2 was at variance
with what "-Steinweg holds out to the public that it will clear their goods asap whilst
the clause provides that "time is not of the essence" and that, therefore, all
responsibility is disclaimed in respect of all delays no matter how long and
irrespective of whether this is due to gross negligence (or even wilfulness) on
Steinweg's part." In this way Profood argues that the arbitrator failed to apply the
test as formulated in the Ou Tait v Atkinson matter2 [the Du Tait test] to determine
when the maxim caveat subscriptor principle applied. Furthermore , Profood argues
that the arbitrator failed to apply the test as set out in the Constantia Insurance Co
Ltd v Compusource (Pty) Ltd3 matter by failing to determine whether Steinweg had
a duty to bring clause 4.2 to Mr Payton's attention [Constantia test].
[6] Steinweg conversely contends that the Goldfield's matter finds no application
in the matter and, that the application itself is both male fide and legally untenable.
It suggests that it is male fide because Profood is no more than a poor loser seeking
to deprive Steinweg of the fruits of its labour and, is legally untenable, as stated in
to deprive Steinweg of the fruits of its labour and, is legally untenable, as stated in
written argument , "-because the consequence of the award does not amount to an
2
3
Goldfields Investment Ltd and another v City Council of Johannesburg and Another
1938 TPD 551 [Goldfields matter].
1985 (2) 893 [Du Tait].
2005 (4) SA 345 (SCA). [Constantia matter].
4
irregularity." It contends that the process adopted by the arbitrator was sound and
the outcome, even if wrong, is not reviewable.4
[7] Against this introduction it is convenient now to consider the legal principles
regarding a review of an arbitration award.
LEGAL PRINCIPLES REGARDING ARBITRATION REVIEWS
[8] The provisions of section 33 of the Act are exhausted on the grounds for a
review of awards in consensual arbitrations.5 And aggrieved party wishing to
successfully review an arbitration award must bring his or her case squarely within
the four corners of the relevant provisions of section 33 of the Act. The primary
principle is that material errors in an award, that is, errors which lead to a party being
unsuccessful, are not reviewable otherwise the distinction between appeals and
reviews would be eroded in section 33 of the Act and permissively becomes a right
of appeal of arbitration decisions.6
[9] If relying on section 33(1 )(b) it is the conduct of the proceedings and not the
result or outcome which is to be the nub of the complaint. A bona fide mistake in
respect of the merits, no matter gross, does not fall within the purview of section
33(1 )(b). Therefore, not every irregularity and the conduct of the proceedings will
afford grounds of review: the irregularity must be serious resulting in an aggrieved
party's case not being fully and fairly determined.7 This is so as it should ordinarily
be accepted that when parties submit to arbitration, they submit to a process they
intend should be fair.8
4
5
6
7
8
Telcordia Technologies Inc v Telkom SA [2006] 139 SCA (RSA) [Telcordia matter].
Dickson & Brown v Fisher's Executors 1915 A.D. 1966 at 174-175 ; Amalgamated
Clothing and Textile Workers Union of South Africa v Veldspun [1993] ZASCA158 ;
1994(1) SA162 (A) at 169.
Footnote 4, par 59 to 60 and 68.
Bester v Easigas (Pty) Limited and Another 1993 ( 1) SA 30 at 42J.
Lufuno Mphaphuli & Associates v Andrews 2009 (4) SA 529 (CC) at 560.
5
[1 O] In the Goldfields Investment matter,9 the Court held, as regards what would
constitute a gross irregularity, albeit in the context of a review of magistrate court
proceedings, that:
"The crucial question is whether the [irregularity] 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. Many patent irregularities have this effect ... If, on the other hand,
the [magistrate] merely comes to wrong decision owing to his having made a
mistake on a point of law in relation to the merits, this does not amount to
gross irregularity in matters relating to the merits the magistrate may by taking
a wrong one of several possible views, or he may by mistaking or
misunderstanding the point in issue. In the letter case it may be said that he
is in a sense failing to address his mind to the true point to be decided and
therefore failing to afford the parties a fair trial. But that is not necessarily the
case. Where the point relates only to the merits on the case it would be
straining the language to describe it as a gross irregularity or denial of a fair
trial. One would say that the magistrate has decided the case fairly but has
gone wrong on the law."10 (own emphasis)
Simply put:
"And a regularity in proceedings does not mean an incorrect judgment , it
refers not to the results, but to the methods of a trial ... Which has prevented
the grieved Party from having his case fully and fairly determined."
[11] A gross irregularity may include a decision-maker misconceiving the
mandate. In Palabora Copper (Pty) Ltd v Motlokwa Transport & Construction (Pty)
Ltd:11
"It suffices to say that where an arbitrator for some reason misconceives the
nature of the inquiry in the arbitration proceedings with the result that a party
9 Footnote 1 at 560.
1° Footnote 1, Telcordia matter, par 73.
11 [2018] ZASCA.23; 2018 (5) SA 462 (SCA) at par 8.
6
is not a fair hearing or fair trial of the issues, that constitutes a gross
irregularity. The party alleging the gross irregularity must establish it. Where
an arbitrator engages in the correct inquiry, but errs either on the facts or the
Jaw, that is not an irregularity and is not a basis for setting aside the award
(own emphasis). If parties choose arbitration, courts endeavour to uphold
their choice and do not lightly disturbed. The attack on their ward must be
measured against these standards."
[12) Against these legal principles it is opportune to deal with the ambit of the
applicable terms of the arbitration agreement and the award.
THE ARBITRATION AND THE ARBITRATOR'S AWARD
[13) It is common cause that in terms of clause 33 of the arbitration agreement,
the parties agreed that " ... all disputes concerning the validity, interpretation (as in
this case-own emphasis) enforcement, performance and termination of these
STC's, shall [failing negotiation} be finally settled by arbitration .. . ".
[14) It is clear therefore that the arbitrator was authorised to decide the issues
before him and it therefore flows that he was entrusted to find the relevant facts and
to decide the legal issues.12
(15] Counsel for Steinweg confirmed further that at the first pre-arbitration
conference on the 18th of January 2024, the parties agreed that a valid arbitration
agreement existed, that the arbitrator had been properly appointed and that the pre
conditions for arbitration had been met. Steinweg also wished to advance that it
proposed that the parties reserve themselves a right of appeal in view of the fact
that the arbitration agreement did not provide for it. Profood rejected the proposal.
[16] It is common cause that the consensual mandate of the arbitrator was to
interpret clause 4.2 and to determine two primary questions referred to earlier in this
judgment. 13
12
13
Johannesburg City Council v Chesterfield House (Pty) Ltd 1952 (3) SA 809 at 825 (AO)
Paragraph [3].
7
[17] In context, clause 4.2 reads as follows:
"notwithstanding any representations made by Company (Steinweg - own
emphasis) regarding any times or delivery dates for performance by the
Company (Steinweg - own emphasis), these times and delivery dates are
estimates only, and it is agreed that in so far as the Company (Steinweg -
own emphasis) is concerned time shall not be of the essence and any delay
in the Company (Steinweg - own emphasis) performing any of its obligations
will not entitled the Customer (Profood's - own emphasis) to cancel any
contract or claim damages."
[18] During the proceedings , the arbitrator heard oral evidence from both parties.
Although it is not for this Court to consider the evidence , the Court does observe
that the summarised evidence which was captured by the arbitrator sets out the
material primary facts from which the Du T oit and the Constantia tests could be
applied.
[19] Mr Payton's, the Managing Director of Profood, evidence in short is that he
was not influenced by any recordal regarding time on Steinweg's website when he
signed the agreement, that time is of essence in imports, that he did not read or
appreciate clause 4.2 and that if he had, he would not have signed the agreement.
It is common cause that he had the agreement at his disposal for more than three
days before he signed it and that he confirmed he was at liberty to take legal advice.
He persisted that the clause was exceptional.
[20) Mr Lutchman's , the Key Accounts Manager, evidence in short was that
although the import documentation was under Steinweg's control the actual product
was not, that Steinweg was not the cause of delays nor was it able to prevent delays,
that delays were a normal occurrence in the industry, that every importer knows the
risks namely that a clearing agent cannot guarantee the clearing goods on time . He
testified to the fact that whilst clearing agents accept that time is of the essence, that
testified to the fact that whilst clearing agents accept that time is of the essence, that
every clearing agent will seek to avoid storage costs, different role players, beyond
the control of a clearing agent are involved. Email documentation was presented to
8
illustrate that Mr Luchtman chased Profood for their documentation to avoid
demurrage and storage costs.
[21] After summarising all the evidence the arbitrator dealt with, recorded and
applied the principles governing the interpretation of documents as set out in the
matter of Joint Municipal Pension Fund vs Endumeni Municipality.14 In so doing, he
concluded that clause 4.2 must be interpreted contextually and purposefully.
Applying the interpretation principles, he formulated certain views which he set out
in paragraph [18] of the award. The formulated views were that he did not regard
clause 4.2 unusual, 15 that he did not view that it misled the reasonable person, 16 nor
that Steinweg had a duty to point it out to Profood.17
[22] In paragraph [19], the arbitrator explained why he held the views as
expressed in the preceding paragraph [18]. In other words, paragraph [19] mainly
set out his reasoning.
[23] In conclusion, the arbitrator accepted Steinweg's interpretation of clause 4.2
and made the following order:
"22. I accordingly formed the view that:
22.1 Clause 4.2. All the agreement (as defined in the claimant
statement of claim) cannot be treated as unenforceable or pro
non-scripto; and
22.2 There was no duty on the claimant to point out the existence of
clause 4. 2 of the agreement to Mr Payton of the defendant."
THE REVIEW AND THE GROUNDS
14
15
16
17
2012 (4) SA 593 (SCA) at par 18, 603F-604C.
Footnote 3.
Footnote 2.
Ibid.
9
(24) It is trite that the grounds for any review as well as the facts and
circumstances upon which an applicant wishes to rely must be set out in the
founding affidavit. Furthermore, in review proceedings these grounds of review may
be amplified in the supplementary affidavit after the record from the presiding officer,
if based on new information having become available as a result of the record, can
be filed. Profood did not bring the application in terms of rule 53 and in consequence ,
no record was sought nor provided. Profood's review is to be adjudicated on its filed
founding papers.
[25) At this point it is relevant to point out that Profood made no mention in the
founding papers to which sub-section of section 33 of the Act it relied in support of
prayer 1. It too, did not deal with whether and/or which of the misdirections it relied
on which constituted a "gross irregularity" resulting in an unfair hearing.18 Profood's
Counsel in written argument simply stated that "The Founding Affidavit lists the
respects in which the Arbitrator's award constitutes an irregularity within the
meaning of section 32 of the act,-". Profood was simply relying on an irregularity and
in consequence, no mention was made of an unfair result to constitute a gross
irregularity. Furthermore , no specific mention of section 33(1 )(b) was made by
Profood in its papers nor in written argument. The Court tried therefore to ascertain
whether the incorrect reference to section 32 in Counsel's heads of argument was
merely a bona fide typing error. This was done by raising the reference to section
32 during argument. Profood's Counsel either chose to disregard any invitation to
address whether it was an error or, he simply did not recognise the incorrect
reference to section 32 in his heads of argument. None the less, it is therefore left
to this Court to deal with. In the absence of Steinweg taking the point, this Court
accepts it was merely a typographical error and therefore considers the wording of
accepts it was merely a typographical error and therefore considers the wording of
section 33 as against reference to it application in the Goldfields matter as raised
by Profood.
[26] The provisions of section 33(1) of the Act reads:
"Where-
18 Telcordia at [73].
10
(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."
[27] The grounds of review relied on by Profood in its founding papers were
described as misdirections. Mr Payton, the deponent amplified the misdirections ,
the thrust of which were directed at paragraph [19] of the award as a means to
expose the rational expressed by the arbitrator for coming to the views he did. Mr
Payton clearly took issue with the arbitrator's interpretation of clause 4.2, its
commercial reach and what his own evidence was.
[28] According to Profood's founding papers, the misdirections relied on are that
the arbitrator completely misapplied the legal test (Du Toit and Constantia test); the
arbitrator misconceived the case before him and lastly, that he failed to interpret the
relevant clause (clause 4.2) and/or if he did, he did so incorrectly. As a consequence
Profood alleges under oath that: "17.4 As a consequence, failed to any extent,
address the issues so raised, either properly or at all (own emphasis).
[29] The review grounds, as raised are to be dealt with.
COMPLETELY MISAPPLIED THE LEGAL TESTIS
[30) To commence, in oral argument, Counsel for Profood pegged the irregularity
on the arbitrator's failure to apply the Du Toit test and went further by submitting that
if the arbitrator did apply the test, he got it terribly wrong. This is probably why this
ground is advanced in the founding papers as a misapplication of the legal test and
not a failure to apply the legal test at all. Misapplying the test whether completely or
11
not surely accepts that the test, whether the Du Toit or Constantia test, as advanced
by Profood, was indeed applied but, was "mis"-applied or applied incorrectly or ill
applied. This means that the arbitrator did engage with and apply his mind to the
test or tests but somehow, according to Profood, erred on the facts or law and/or
applied it incorrectly.19 This understanding of the review ground fits snuggly into the
submission of their Counsel when, he in argument, submitted that if the arbitrator
applied the test he got it terribly wrong. This does not amount to a failure to apply
the tests but rather amounts to an alleged misdirection/s when applying what he
was asked to do in the first place.
[31] To amplify, the award itself demonstrates that the arbitrator indeed applied
both the Du Toit and Constantia tests. This is evident from the views formulated by
the arbitrator in paragraph [18] of the award. To recap, in paragraph [18] the
arbitrator stated that he did not regard clause 4.2 unusual. To come to this
conclusion, he would have to have engaged with the evidence to decide whether a
contextual interpretation of clause 4.2, within the industry, was unexpected or novel
or indeed onerous. By coming to a conclusion, he must have engaged with and
applied his mind to the Constantia test. If the outcome is wrong, it does not mean
he did not apply nor that he misapplied the test. It is common cause that other
agreements used in the industry were tendered into evidence. Steinweg also
specifically dealt such clauses in each agreement found in the industry in their
answering affidavit. Profood did not engage with any of clauses in reply.
[32] The arbitrator too held the view that clause 4.2 did not mislead the reasonable
person nor, that Steinweg had a duty to point it out to Profood. To come to this
conclusion, he would have to consider the Du Toit test, namely whether the
exception to the general rule of maxim caveat subscriptor applied to the facts.
exception to the general rule of maxim caveat subscriptor applied to the facts.
According to the recorded evidence, Mr Payton acknowledged that he was not
induced by any representation "promises" regarding time made by Steinweg on their
website when he signed the agreement. His own evidence is contrary to the basis
upon which Profood's Counsel made the submittion that "Steinweg holds out to the
public that it will clear their goods asap whilst the clause provides that "time is not
of the essence" to support the argument that Steinweg should have pointed clause
19 See footnote 11.
12
4.2 out to Mr Payton and not remained silent. Absent evidence to support being
induced by Steinweg's public representation which representation appeared at
variance with clause 4.2, the arbitrator to come to the view that clause 4.2 did not
mislead nor that Steinweg had to point it out to Mr Payton, he would have had
applied his mind to the Du Toit test. This is so because the principle in the Du Toit
matter applies when, on the facts, the conclusion of an agreement is induced by a
representation which later, is found to be at odds with a clause in the contract. In
such an event, the clause is to be brought to contracting parties attention. Absent
an induced representation, it follows that the arbitrator, whether correct or not, was
open to take the view that the reasonable man was not mislead by clause 4.2
therefore no obligation arose for Steinweg to point it out to Mr Payton and
furthermore that whether he read it or not was of no moment. He determined then
that the exception to the maxim caveat subscriptor rule did not apply. An answer to
the Du Toit point. Any argument that the arbitrator did not apply or engage with the
Du Toit test at all is a stretch too far. Profood's argument on this basis stands to be
rejected.
[33] In consequence , the arbitrator applied the testis whether the outcome of such
application to the material facts was right or wrong. Being wrong, does not constitute
an irregularity nor did Profood rely on such misapplication as a gross irregularity
constituting an unfair determination of the issues as a consequence, therefore, this
ground, as raised, must fail.
MISCONCEIVED THE CASE IN FRONT OF HIM AND FAILED TO INTERPRET
THE RELEVANT CLAUSE OR DID INTERPRET IT, BUT INCORRECTLY
[34] To misconceive a case as relied on with reference to the Goldfields matter,
is to be reminded that it is a complaint that strikes to the arbitrator mistaking or
misunderstanding the point in issue. The consequence of which is that an aggrieved
misunderstanding the point in issue. The consequence of which is that an aggrieved
party is thereby not afforded a fair trial. But as explained in the Goldfields matter,
this may not always be the case because "[W]here the point relates only to the
merits on the case it would be straining the language to describe it as a gross
13
irregularity or denial of a fair trial. One would say that the magistrate has decided
the case fairly but has gone wrong on the law. "20
[35] This is exactly the case made out in the founding papers which is considered
together with the absence of an allegation of unfairness. To not agree with the
interpretation of clause 4.2 by the arbitrator after he considered it does not morph
into mistaking or misunderstanding the very point of issue before him.
{36] Furthermore, having already found that the arbitrator did not misapply the
tesUs, and reconsidering yet again what the SCA in the Palabora v Cooper matter21
said, when it spoke to this point, this Court is reminded that "Where an arbitrator
engages in the correct inquiry, but errs either on the facts or the law, that is not an
irregularity and is not a basis for setting aside the award." There is little doubt the
arbitrator clearly understood the case before him and what he had to do. The
process was clear and he engaged with the task, applied the tests and formulated
a view. Whether Profood agrees with his interpretation of clause 4.2 and how he
applied the testis is not the basis for a review.22He decided the case fairly even if
he went wrong on the law.
{37] The probability that the arbitrator did not misconceive the case was
anticipated by Profood in that they also raised an alternate ground, namely that the
arbitrator did interpret clause 4.2, but did so incorrectly. In the quoted words of
Hoexter JA as relied on by Harms AJ in Telcordia:
20
21
22
"{85] - It cannot be said that the wrong interpretation of the Integrated
Agreement prevented the arbitrator from fulfilling his agreed function
or from considering the matter left to him for decision. On the country
and interpreting the Integrated Agreement the arbitrator was actually
fulfilling the function assigned to him by the parties, and it follows that
the wrong interpretation of the Integrated Agreement could not afford
any ground for review by a court."
any ground for review by a court."
Footnote 3, Telcordia at [73].
Footnote 11 .
Telcordia from par [85).
14
[38] The inevitable conclusion is that Profood must fail on the grounds as raised.
COSTS
[39] As far as costs are concerned there is no reason why costs should not follow
the result. Steinweg moves for a punitive cost order on the basis that the application
was thinly veiled in an attempt to re-argue the merits of the separated hearing which
is not the purpose of review and a section 33 and, secondly, that Profood neglected
to disclose many material facts and otherwise attempted to mislead this Court, even
if by failing to provide context in connection with many of its allegations. On this
basis, Steinweg argues that the application is male fide and amounts to an abuse
of process. Lastly, it argues that the application is vexatious relying on the cost and
time associated with opposing this ill-conceived application.23
[40] Steinweg's claim for punitive costs was not met by Profood in written nor oral
argument. A lack of opposition is not the determining factor but rather a
consideration of the basis relied on by Steinweg. This Court agrees that Profood's
application was thinly veiled and that includes its reply to Steinweg's opposition but
having said that it did not amount to a re-argument of the merits because Profood
did not deal with the merits in its application, it centred its attack on points of
argument. This Court did not find that Profood attempted to mislead the Court by
not disclosing material facts. The material facts were to be found in the award itself
which was annexed to its founding papers. Having regard to Steinweg's argument
that the application was male fide, vexatious and an abuse of process, this is not
supported by the procedural facts. The outcome of this matter is important to both
parties and it is common cause that no appeal lies against the issues determined
on arbitration therefore, the omission by the arbitrator to specifically refer to the Du
Tait matter may very well have raised a concern for Profood, even if found
otherwise.
Tait matter may very well have raised a concern for Profood, even if found
otherwise.
[41] Having regard to the argument, this Court is not inclined to award punitive
costs.
23 Alluvial Creek Ltd 1929 CPD 532-535.
15
[42] The following order:
1. The application is dismissed.
2. The Applicant is ordered to pay the Second Respondent's costs,
Counsel's fees taxed on scale C.
Appearances:
For the Applicant:
Instructed by attorneys:
Judge of the High Cou,1
Gauteng Division
Adv R Van Riet SC
Tel: 0214231304
Pepler O'Kennedy
Tel: 021 204 0959
Email: andre@po.legal sherri@po .legal
For the Second Respondent Adv M De Oliveira
Cell: 082 497 5124
Instructed by attorneys:
Email: macm@maise!s3.co.za
HBGSchindlers Attorneys
Tel: 011 568 8500
Email: binneman@.hbq~chindlers.co.za
powell@hbgschi ndlers. co .za
Date of hearing:
Date of judgment:
29 April 2026
15 May 2026
16