IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Not Reportable
Case no: 2025-026543
In the matter between:
LUYANDA JOXO APPLICANT
and
ARGON ASSET MANAGEMENT FIRST RESPONDENT
(PTY) LTD
THE TRUSTEES FOR THE TIME SECOND RESPONDENT
BEING OF THE ARGON ASSET
MANAGEMENT STAFF TRUST
MAJAKWANE MANAS BAPELA THIRD RESPONDENT
SELLO ISHMAEL SETAI FOURTH RESPONDENT
FRANS MALAN N.O. FIFTH RESPONDENT
SANDILE NGCOBO N.O. SIXTH RESPONDENT
ROBERT NUGENT N.O. SEVENTH RESPONDENT
Neutral citation: Luyanda Joxo v Argon Asset Management (Pty) Ltd and
Others (Case No 2025 -026543) [ 2026] ZAWCHC ( 27 May
2026)
Coram: COOKE AJ
Heard: 11 May 2026
Delivered: 27 May 2026
Summary: Setting aside of appeal tribunal’s award – failure to
challenge award of arbitrator - misconduct – exceeding of
powers – punitive costs
ORDER
[1] The application is dismissed.
[2] The applicant shall pay the costs of the first to fourth respondents , with
counsel’s fees to be taxed on scale C.
JUDGMENT
Cooke AJ:
Introduction
[1] Parties may have several goals in mind when they choose to refer their
disputes to arbitration. For some, the privacy that attaches to the
proceedings is important. They do not want their personal or corporate
dealings to be ventilated in public. Others may be attracted to the
procedural flexibility offered by arbitration proceedings. The parties may
agree to bespoke procedures that suit their specific needs. Still, others
consider that arbitration will afford a swift and cost-effective resolution
to their dispute.1
[2] Courts must respect the choice of parties to refer a dispute to arbitration. 2
After all, the referral carries with it a deliberate choice not to subject the
dispute to judicial determination . Under our law, b y agreeing to
arbitration, the parties limit interference by courts to certain specific
irregularities. These are set out in section 33(1) of the Arbitration Act 42
of 1965 (the Arbitration Act).3 The Constitutional Court has warned that
courts should be careful not to undermine the achievement of the goals of
arbitration by enlarging their powers of scrutiny imprudently . To this
end, courts are required to construe the grounds of interference
reasonably strictly .4 As noted by Fritz Brand, writing in an academic
1 Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC) para 197.
2 Ibid para 219.
3 Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA) para 51.
4 Lufuno Mphaphuli supra fn 1 para 235.
capacity: ‘[I]f arbitration becomes a mere prelude to judicial review, its
essential virtue is lost.’5
[3] In this application , the applicant, Mr Joxo, applies to have an appeal
arbitration award set aside and substituted with a judgment in his favour.
In the alternative , Mr Joxo ask s that the matter be remitted to the
Arbitration Foundation of Southern Africa (AFSA) for a new arbitration.
[4] The arbitration proceedings relate to a dispute between Mr Joxo and the
first to fourth respondents regarding the validity of a transfer of shares in
the first respondent (the company). The second respondent (the Trust) is
an employee share scheme as contemplated by section 97 of the
Companies Act of 2008 (the Companies Act) , and a registered
shareholder in the company . The third respondent , Dr Bapela, was the
company’s Chief Executive Officer, a registered shareholder, and a
director of the company. The fourth respondent , Mr Setai, was employed
as the company’s Chief Operating Officer and was also a registered
shareholder.6 The second to fourth respondents shall be referred to as ‘the
respondents’.
[5] The dispute was determined, in the first instance, by a single arbitrator,
Adv Rose -Innes SC (the arbitrator) , against Mr Joxo . Thereafter, an
appeal tribunal consisting of the fifth to the seventh respondents (the
tribunal), confirmed the arbitrator’s award . Mr Joxo now seeks to set
aside the award of the tribunal in terms of section 33(1) of the Arbitration
Act on the basis that the tribunal misconducted itself , or alternatively,
5 FDJ Brand ‘Judicial review of arbitration awards’ (2014) 25(2) Stellenbosch LR 247 at 249 , quoted with
approval in Rabinowitz v Levy and Others (1276/2022) [2024] ZASCA 8 (26 January 2024) , 2024 JDR
0220 (SCA) para 1.
6 Arbitrator’s Award para 6.
exceeded its powers in making the award. Before turning to consider the
legal issues that arise in this matter, it is convenient to set out the
background to this application.
Background
[6] The company is an asset management company based in Cape Town. It
is a small private company, with a few shareholders. It has some 36-40
employees, including senior investment personnel. At the relevant time ,
the company managed close to R26 billion in assets spread over equities,
fixed interest and multi -asset classes. Among the company’s clients are
publicly funded institutions such as the Public Investment Corporation
and Eskom.7
[7] Mr Joxo was a shareholder and director of the company. Until he was
dismissed on 25 May 2021, he was employed as the company’s Head of
Institutional Business and as Deputy Chief Executive Officer. Mr Joxo
challenged his dismissal claiming that it was unfair. On 13 September
2022, the Commission for Conciliation, Mediation and Arbitration
(CCMA) made an award reinstating him. That award was taken on
review, and, on 19 November 2024 , the Labour Court set aside the
decision of the CCMA and substituted it with a finding that Mr Joxo’s
dismissal was substantively and procedurally fair. 8 At the hearing before
me, Mr Joxo advised that an appeal to the Labour Appeal Court was
pending.
7 Arbitrator’s Award para 4, read with the company’s answering affidavit.
8 Argon Asset Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others
(C477/2022) [2024] ZALCCT 63.
[8] The dispute, and the reference to arbitration , arose from an extraordinary
meeting of the company’s shareholders held two months after Mr Joxo’s
dismissal on 23 July 2021. The meeting was called for the purpose of
considering the removal of Mr Joxo as a director of the company. At the
meeting, Mr Joxo contested his removal .9 In the arbitration proceedings ,
Mr Joxo asserted that certain share transactions were invalid and,
therefore, there was no valid transfer of shares to the Trust and Dr
Bapela. As a result, so the argument continue d, the Trust and Dr Bapela
were not entitled to exercise voting rights in the company, including in
relation to any proposed resolution seeking to remove Mr Joxo as a
director.
[9] For the purposes of this application, the 2016 transaction is most
relevant. This transaction involved the transfer of 140 ordinary shares
(being a 14% shareholding in the company) from Mr Mathobi Seseli (a
former director and shareholder of the company) to the Trust. The key
issue before the tribunal was whether the 2016 transaction was for
consideration. On Mr Joxo’s version , the transfer was for consideration
to be paid to Mr Seseli either by the Trust itself in due course, or by a
third-party funding mechanism, but at no cost to the employee
beneficiaries of the Trust. Mr Joxo argued further that Mr Seseli thus had
an interest in the 2016 transaction, which interest was not disclosed to the
board. According to Mr Joxo , this triggered the application of several
provisions of the Companies Act , and in so far as those provisions were
not complied with, the transfer was invalid. In respons e to Mr Joxo’s
claim, the company and the respondents filed a conditional counterclaim
in which they asked that if it were found that the disclosure requirements
9 Arbitration award para 11.
of section 75 (5) of the Companies Act ha d not been met, 10 that the
transfer nonetheless be declared valid in terms of section 75(8) of the
Companies Act.11
[10] The arbitration was heard by the arbitrator over several days. On 30
April 2024 , he granted an award in terms of which Mr Joxo’s claims
were dismissed and the counterclaim for a declaration of validity in terms
of section 75(8) was upheld to the extent that the disclosure requirements
of section 75 (5) were not satisfied. Mr Joxo appeal ed on numerous
grounds. The appeal was heard by the tribunal on 13 December 2024. By
that time, the issues in dispute had narrowed and Mr Joxo approached the
appeal on the basis that it turned on the validity of the 2016 transaction.
The tribunal handed down its award on 15 January 2025 , refusing the
appeal and upholding the award of the arbitrator.
[11] On 26 February 2025 , Mr Joxo launched the present application .
Answering affidavits were delivered by the company and the respondents
on 29 April 2025 and 12 May 2025 respectively. Mr Joxo did not ,
however, deliver a replying affidavit. On 13 August 2025 , a notice of set
down was issued providing for a hearing date on 11 May 2026. Although
Mr Joxo did not deliver heads of argument in accordance with this
court’s practice directives , the company and the respondents went ahead
and delivered their heads of argument on 22 April 2026 and 24 April
2026 respectively.
10 This section concerns the personal financial interests of directors.
11 ‘A court, on application by any interested person, may declare valid a transaction or agreement that had
been approved by the board, or shareholders, as the case may be, despite the failure of the director to
satisfy the disclosure requirements of this section.’
[12] On 6 May 2026, some three court days before the hearing, Mr Joxo’s
attorneys delivered a notice of withdrawal as attorneys of record. Mr
Joxo then indicated that he would be seeking a postponement . The
attorneys representing the company and the respondents noted that they
held instructions to oppose such an application. A postponement
application was argued on the morning of 11 May 2026 and, for the
reasons given in court on that day , was dismissed. I there after heard
argument on the merits of the application . Mr Joxo was present for
argument and, although he did make submissions relating to the
postponement, he elected not to make submissions on the merits of his
application.
[13] Against that backdrop , I now turn to consider the issues that arise in the
application. I commence with an analysis of the relief sought by Mr Joxo.
The Relief
[14] As set out above , Mr Joxo seeks an order (a) setting aside the award of
the tribunal dated 15 January 2025 and (b) substituting that award with a
judgment in his favour. Alternatively, Mr Joxo asks (c) that the matter be
remitted to AFSA for a new arbitration. Notably, Mr Joxo does not ask
that the tribunal’s award be remitted back to the tribunal, or that a freshly
constituted appeal tribunal be appointed.
[15] Mr Joxo does not seek to set aside the award of the arbitrator dated 30
April 2024. He did not even attach the arbitrator’s award to his founding
affidavit. It follows that if the award of the tribunal is set aside, the award
of the arbitrator will still stand as a valid and binding decision . In my
view, this is fatal to each element of the relief sought:
a. The setting aside of the tribunal’s award, absent the setting aside
of the arbitrator ’s award , and without a remittal to an appeal
tribunal, serves no practical purpose – Mr Joxo’s claims will
remain dismissed pursuant to the arbitrator’s award .
Furthermore, I do not consider that the inter ests of justice
demand the determination of this issue, notwithstanding it being
academic.
b. If the award of the arbitrator is extant, there would logically be
no scope for a substituted judgment in favour of Mr Joxo. In any
event, the Arbitration Act does not empower a court to grant
substitutionary relief. 12 For both these reasons , the
substitutionary relief is misconceived.
c. As to the alternative relief, absent the setting aside of the
arbitrator’s award, there is no basis for a new arbitration.
In the circumstances, the relief sought by Mr Joxo is, in part, of academic
interest only, and in part, legally untenable.
[16] The position may be compared to the situation that often occurs in an
administrative law context, where a decision -maker acting under
delegated powers makes a decision that is subjected to an internal appeal,
and the appeal is then dismissed. Ordinarily , it would be necessary for
the aggrieved party to challenge both decisions. 13 In this instance, Mr
12 Hos+Med Medical Aid Scheme v Thebe Ya Bophelo Healthcare Marketing & Consulting (Pty) Ltd and
Others 2008 (2) SA 608 (SCA) para 43.
13 See Wings Park Port Elizabeth (Pty) Ltd v MEC, Environme ntal Affairs, Eastern Cape and Others 2019
(2) SA 606 (ECG) paras 34 and 46 -47. See also Esau and Others v Minister of Co -Operative Governance
and Traditional Affairs and Others 2021 (3) SA 593 (SCA) paras 51-52.
Joxo’s failure to challenge both decisions is, to my mind, dispositive of
his challenge to the tribunal’s award.
[17] It follows that, in the absence of a challenge to the arbitrator’s award, Mr
Joxo’s application is still -born. This application may be determined on
this narrow basis. Nonetheless, i t is appropriate that I also address the
substantive challenges to the tribunal’s award.14 I do so under two
headings: misconduct; and exceeding of powers.
Misconduct
[18] Section 33 (1) of the Arbitration Act provides, in relevant part s, that
where any member of an arbitration tribunal has misconducted him or
herself in relation to his or her duties as arbitrator , a court may, on
application of any party to the reference, and after due notice to the other
party or parties, make an order setting the award aside.
[19] The basis upon which an arbitration award will be set aside on the
grounds of misconduct is a very narrow one . Even a gross or manifest
mistake is not , by itself , misconduct. At best , it provides evidence of
misconduct which, taken alone or in conjunction with other
considerations, will ultimately have to be sufficiently compelling to
justify an inference (as the most likely inference) of what has variously
been described as “wrongful and improper conduct”, “dishonesty”, “mala
fides or partiality”, and “moral turpitude”.15 It is only where a mistake is
so gross or manifest that it would be evidence of misconduct or partiality
14 Regarding the court’s duty of proper consideration – see Vodacom (Pty) Ltd v Makate and Another 2025
(6) SA 352 (CC) para 45.
15 Total Support Management (Pty) Ltd and Another v Diversified Health Systems (SA) (Pty) Ltd and
Another 2002 (4) SA 661 (SCA) para 21.
such that a court might be moved to set aside an award. It has been held
that even a gross mistake, unless it establishes bad faith or partiality,
would be insufficient to warrant interference. 16 The onus rests upon Mr
Joxo to show that there was misconduct of this nature on the part of the
tribunal.
[20] Mr Joxo asserts that the tribunal acted in a way that was arbitrary,
capricious, and biased. According to Mr Joxo , this is reviewable
misconduct. Mr Joxo does not explain precisely what he means by the
labels ‘arbitrary’ and ‘capricious’. Ordinarily , these terms are used to
indicate that a decision -maker acted without any apparent reason. 17 A
reading of the tribunal’s award, which runs to some 54 pages, reveals that
the decision was judiciously reasoned. In particular, t he evidence
regarding the validity of the 2016 transaction was evaluated thoroughly.
Indeed, the sixth respondent authored a separate portion of the award in
which he specifically considered whether the 14% shares were
transferred to the Trust for consideration. It is apparent from this portion
of the award that Mr Joxo’s arguments and evidence were assessed. It
was concluded that the 14% shares were transferred to the Trust for no
consideration. Reasons were given. Mr Joxo may not agree with the
reasoning, but that does not render the award arbitrary or capricious. At
best for Mr Joxo, the tribunal made bona fide errors of law or fact , for
16 ACTWUSA v Veldspun (Pty) Ltd 1994 (1) SA 162 (A) at 169D. See also Dickenson & Brown v Fisher’s
Executors 1915 AD 166 at 174 -181, Donner v Ehrlich 1928 WLD 159 at 161 , and
Kolber and Another v Sourcecom Solutions (Pty) Ltd and Others; Sourcecom Technology Solutions (Pty)
Ltd v Kolber and Another 2001 (2) SA 1097 (C) paras 38-44.
17 Crawitz v Durban Licensing Board (1914) 35 NPD 395 at 400. Regarding the test for arbitrariness , see
Minister of Justice and Another v South African Restructuring and Insolvency Practitioners Association and
Others 2018 (5) SA 349 (CC) para 49.
which I make no findings. 18 However, that is not enough to satisfy the
rigorous test under section 33(1)(a) of the Arbitration Act.
[21] The allegation of bias means that Mr Joxo also considers that the
members of the tribunal were not impartial and based their decision on
illegitimate motives and considerations. The Constitutional Court has
warned against wanton and gratuitous allegations of bias , pointing out
that such allegations, which are the antithesis of fairness , are serious and
if made with a sufficient degree of regularity, have the potential to be
deleterious to the confidence reposed by the public in administrators. 19
Although the tribunal is not a public official, the members of the tribunal
are senior retired judges and , to my mind, the warning issued by the
Constitutional Court applies in equal measure.
[22] This Court has held that the presumption of judicial impartiality applies
equally to arbitrations. 20 More so, in my view, where all three members
of the tribunal are retired judges. It is notable that Mr Joxo does not
allege any possible interest which the members of the tribunal might
have in ruling against him. There is no suggestion, for instance, that any
of the members of the tribunal have a financial or personal interest in the
matter, nor that they have a bias in relation to the subject matter of the
dispute, nor that there is any official or institutional bias. 21 Mr Joxo
simply relies upon inferences to be drawn from the award itself. To my
mind, even if the tribunal had made numerous mistakes of law and fact in
18 I refrain from entering into the merits of the dispute. See Transpeninsula Investments (Pty) Ltd v City of
Cape Town and Another (Appeal) (A516/25) [2026] ZAWCHC 253 (25 May 2026) para 34.
19 Turnbull-Jackson v Hibiscus Coast Municipality and Others 2014 (6) SA 592 (CC) paras 34-35.
20 Pristine Seafoods (Pty) Ltd v Collective Dream Studios (Pty) Ltd and Another (3834/2024) [2024]
ZAWCHC 294 (9 October 2024) para 36. I was the arbitrator and second respondent in this application ,
although I abided the decision of the court and played no active role in the litigation.
21 See in this regard, the discussion in Cora Hoexter and Glenn Penfold Administrative Law in South Africa
3rd ed (2023) at 616-625.
the award (in respect of which I make no finding) , and even if the
mistakes all benefit one party and disadvantage the other, this would still
not, on its own, constitute bias.22
[23] Even on the facts referred to by Mr Joxo himself, there was some
evidence in favour of the conclusion that the 2016 transaction was not for
consideration. For instance, he refers to Mr Seseli relenting from his
demands for payment and Mr Setai’s evidence as to the nature of the
2016 transaction (which he accepts was destructive of his evidence).
Reference is also made to his email of 24 January 2018 , in which he
stated that ‘no one pays nor a liability arises out of the shares that are
transferred at no consideration to the beneficiaries , and therefore those
shares were transferred as a donation to the staff share trust ’.23 This was
not a case where there was no evidence whatsoever to substantiate the
conclusion reached by the tribunal. Whether or not the conclusion was
correct is irrelevant for the purposes of these proceedings . Mr Joxo may
disagree with the tribunal’s assessment of the evidence, but t he tribunal
had “the right to be wrong”.24
[24] The founding affidavit sets out the alleged misconduct under four
headings. First: ‘In respect of whether the 2016 trust transfer was agreed
to be for consideration or agreed to be a donation, or whether no
agreement was reached at all. ’ This argument rests predominantly upon
allegations of contradictory findings, and a failure to evaluate the
evidence properly. This does not suffice to prove misconduct. Mr Joxo
22 Compare Pristine Seafoods supra fn 20 paras 33-46.
23 Mr Joxo alleged that the statement ‘no one pays’ must obviously be read in the context of Mr Seseli
having just requested payment from the shareholders – none of whom agreed to pay Mr Seseli.
24 Telcordia Technologies supra fn 3 para 85.
also alleges that the tribunal did not approach the matter with an open
mind and decided that the transfer was not for consideration before
assessing the evidence . I am not satisfied that the evidence put up in the
founding affidavit shows that the tribunal approached the matter in the
manner suggested by Mr Joxo.
[25] Second: ‘In respect of the documentary evidence and whether it
contradicted my version. ’ Here, it is alleged that the tribunal failed to
properly apply the principles set out in the Stellenbosch Farmers’ Winery
case in relation to the mutually destructive versions of Mr Setai and Mr
Joxo.25 As noted above, it is inherent in this submission that there was a
version before the tribu nal that was destructive of Mr Joxo’s version. In
any event, t his argument concerns the tribunal’s assessment of the
evidence. In my view , it does not show any misconduct. Mr Joxo places
much weight on the assertion that , on his version, the consideration was
to be paid by the Trust in due course or a third -party funder. It seems to
me that this version was adequately addressed by the tribunal. The
tribunal expressly referred to cross-examination on the topic of the Trust,
not the beneficiaries , paying for the shares. The tribunal quoted Mr
Setai’s evidence in this regard, including his statement that the Trust ‘…
was never going to have money… so how would it pay…’ .26 In other
words, the Trust could not pay for the shares in due course. As to a third-
party funder, the tribunal did consider the attempts to obtain funding
from Standard Bank, being one of several options explored by the
board.27 On Mr Joxo’s own version , the tribunal found that the proposal
25 Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11
(SCA).
26 Tribunal Award para 110.
27 Tribunal Award paras 30 and 100ff.
for funding through a third-party mechanism died a natural death. On the
evidence before me , I am therefore not persuaded that the tribunal
fundamentally misconstrued the nature of the inquiry, as suggested by
Mr Joxo.
[26] Third: ‘Further examples of the tribunal’s contradictory and inconsistent
approach to evidence to the respondents’ benefit and to my prejudice. ’
As the heading to this complaint reveals, the criticism relates to
perceived illogicality in the tribunal’s reasoning. To my mind, this does
not constitute misconduct.
[27] Fourth: ‘In respect of speculation by the tribunal not supported by any
evidence.’ Under this heading, Mr Joxo criticises the tribunal for drawing
an inference as to his state of mind , for which, according to Mr Joxo,
there was no evidence. Mr Joxo concludes that the tribunal must have
been biased. Courts and arbitrators sometimes wrongly draw inferences
of this nature. Such errors are typically not born of misconduct or bias.
They are usually sincere mistakes. In my view, even if the inference was
unjustified, in respect of which I make no finding , it does not amount to
misconduct nor does it show bias.
[28] Having had regard to the various allegations made by Mr Joxo, it seems
to me that his complaints bear the hallmarks of an appeal, not a review. If
one strips away the pejorative labels liberally deployed in the founding
affidavit, one is left with objections principally regarding how the
tribunal assessed, interpreted , and applied the evidence ; the inferences it
drew from the evidence ; and the way it reasoned. This is a far cry from
demonstrating that there was reviewable misconduct on the part of the
tribunal. It is not sufficient to show that the tribunal made bona fide
mistakes as to fact or law. It is also not sufficient to show inconsistent
reasoning and contradictions. There must be more to justify the setting
aside of an arbitration award. The affidavits before me do not show any
wrongful or improper conduct on the part of the tribunal ; nor any
dishonesty, bad faith , partiality, or moral turpitude . Mr Joxo has not
come close to disturbing the presumption of impartiality . In my view, the
high bar reflected i n the case -law has not been cleared. The evidence
adduced by Mr Joxo is clearly not sufficiently compelling to justify an
inference of misconduct. It follows that Mr Joxo has not established
misconduct on the part of the members of the tribunal.
Acting in Excess of Powers
[29] As noted above, the arbitrator determined that , to the extent that there
was a failure to satisfy the disclosure requirements of section 75(5) of the
Companies Act, the transactions in question were valid in terms of
section 75(8) thereof. Mr Joxo points out that section 75(8) of the
Companies Act provides for a court, on application, to make a
declaration of validity. He argues that the arbitrator thus exceeded his
powers as an arbitrator in exercising a power that only a court may
exercise. Mr Joxo contends further that the condition ality in the award
illustrates not only an exceeding of powers , but also misconduct. Finally,
Mr Joxo submits that the power in section 75(8) can only be exercised
where there has been a failure to comply with the disclosure
requirements in section 75(5); and thus, it was necessary for the arbitrator
to first find that those disclosure requirements had not be en complied
with before exercising the power. Mr Joxo relates these alleged
difficulties to the tribunal by asserting that the tribunal possesse d no
power to uphold an ultra vires award and that it too exceeded its powers.
It follows, so the argument runs, that the tribunal’s award is reviewable
under section 33(1)(b) of the Arbitration Act . In my view , these
arguments are misplaced for the following reasons.
[30] First, the arbitrator addressed the contention regarding his power to act in
terms of section 75( 8) in an interlocutory award . In that award, having
regard to, amongst other things, section 166 of the Companies Act read
with the terms of the arbitration agreement, he found that he has the
power to determine the relief sought in the conditional counterclaims .
This interlocutory decision was not challenged on appeal, nor has Mr
Joxo sought to set it aside in these proceedings. Indeed, Mr Joxo’s
founding affidavit does not mention the interlocutory award , and thus ,
does not engage at all with the reasoning in that award.
[31] Second, the arbitrator’s finding s in relation to section 75(8) are of no
moment. Having found that the disclosure requirements of section 75 (5)
had been satisfied, there was no need to make any provision in the award
for the alternative relief sought under section 75(8). It may be that the
arbitrator did so on the basis that a litigant is entitled to a decision on all
the issues raised, and on the understanding that the matter may be take n
on appeal, in which case the appeal tribunal may benefit from his
finding.28 It would, perhaps, have b een better if the arbitrator had dealt
with this aspect only in his reasons, and not also in the order itself.
28 Spilhaus Property Holdings (Pty) Ltd and Others v Mobile Telephone Networks (Pty) Ltd and Another
2019 (4) SA 406 (CC) para 44.
However, this is a quibble of no consequence and certainly does not
constitute a ground to set aside the decision of the tribunal.
[32] Third, the tribunal itself did not make any findings in relation to section
75(8) of the Companies Act. In upholding the arbitrator’s decision, which
contained a finding in relation to section 75(8), I do not consider that the
tribunal exceeded its powers.
[33] In these premises, there is no merit to the challenge under section
33(1)(b) of the Arbitration Act.
Conclusion and Costs
[34] Although the Arbitration Act does empower court s to set aside an
arbitration award, the court s are required to construe the grounds of
interference reasonably strictly . Having regard to the absence of a
challenge to the arbitrator’s award and also to the evidence placed before
me, I do not consider that interference is justified. The application
therefore falls to be dismissed.
[35] Costs should follow the result. The company , but not the respondents,
sought a cost s order on a punitive scale . In written argument , it was
submitted that Mr Joxo must have realised that his case lacks merit. I am
not convinced that this is the case. In oral argument , counsel contended
that the application was , in effect, vexatious. Reliance was placed upon
the judgment of this Court in Alluvial Creek Ltd.29 In that case, the court
found that although there are people who enter into litigation with the
most upright purpose and firm belief in the justice of the cause, those
29 In re: Alluvial Creek Ltd 1929 CPD 532.
proceedings may nonetheless be regarded as vexatious when they put the
other side to unnecessary trouble and expense, which the other side ought
not to bear.30
[36] I have had regard to the fact that applications such as this , if
unsuccessful, frustrate the goals of arbitration - the dispute is dragged
before the public eye, final resolution is substantially prolonged, and
costs escalate. I have also had regard to similar cases where applications
to set aside arbitration awards were dismissed . In Telcordia,31 Lufuno
Mphaphuli,32 Roux,33 and Rabinowitz,34 the courts granted costs on the
ordinary scale, although it does not appear that punitive costs orders were
requested. By contrast, this Court granted an attorney client costs award
in Pristine Seafoods .35 Furthermore, in Total Support Management, the
Supreme C ourt of Appeal granted an attorney and client costs order in
respect of the hearing, in circumstances where the appellants persisted
with allegations of impropriety.36
[37] Vexatious litigation has been said to be “frivolous, improper, instituted
without sufficient ground, to serve solely as an annoyance to the
defendant”.37 Notwithstanding the several flaws in the application, I am
not persuaded it is so unmeritorious as to meet this standard. On balance,
I do not think the matter warrants a punitive costs order.
[38] In my view, it is appropriate that counsel’s fees be taxed on scale C.
30 Ibid at 535.
31 Telcordia Technologies Inc supra fn 3 paras 157-158.
32 Lufuno Mphaphuli supra fn 1 paras 279-280.
33 Roux v University of Stellenbosch and others 2023 JDR 1263 (WCC) paras 93-94.
34 Rabinowitz supra fn 5 paras 10 and 45.
35 Pristine Seafoods supra fn 20 para 54.
36 Total Support Management supra fn 15 para 49.
37 Lawyers for Human Rights v Minister in the Presidency and Others 2017 (1) SA 645 (CC) para 19.
[39] For these reasons, I grant the order set out above.
_____________________________
DJ COOKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For applicant: In person
For first respondent: John Butler SC
Instructed by: Cliffe Dekker Hofmeyr Inc.
For second, third and fourth respondents: Kate Reynolds
Instructed by: Werksmans Attorneys