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[2026] ZAGPJHC 687
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Flamwood Consortium v Schwartzman and Others (2021/44260) [2026] ZAGPJHC 687 (23 June 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number:
2021-44260
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
23
June 2026
In the matter between:
THE
FLAMWOOD CONSORTIUM
Applicant
And
I
SCHWARTZMAN
First Respondent
THE ASSOCIATION OF
ARBITRATORS
(SOUTHERN
AFRICA) NPC
Second Respondent
SENWES
LIMITED
Third Respondent
This Judgment is handed
down electronically by circulation to the Applicant’s Legal
Representatives and the Respondents by
email, publication on Case
Lines as well as saflii. The date for the handing down is deemed to
be 23 June 2026 at 10 am.
Summary-Arbitration -
Award - Setting aside of – Alleged gross irregularity by
arbitrator in conduct of arbitration proceedings
-
Arbitration Act 42
of 1965
,
s 33(1)
(b)
- Such ground of review
envisaging gross irregularity in 'conduct', and not result or
outcome, of proceedings.
JUDGMENT
MUDAU, J:
Introduction
[2]
This is an application to review and set
aside an arbitration award made by the first respondent, Mr I
Schwartzman, a retired judge
of this Division, sitting as an
arbitrator in a dispute between the applicant (Flamwood Consortium)
and the third respondent (Senwes).
The award was published on 6
August 2021 and dismissed Flamwood Consortium's claim with costs,
including the costs of senior counsel.
[3]
The
review is brought under section 33(1) of the Arbitration Act
[1]
(the Act). Flamwood Consortium contends that the arbitrator
misconducted himself, committed gross irregularities in the conduct
of the proceedings, exceeded his powers, and that the award was
improperly obtained. Alternatively, Flamwood Consortium contends
that
there exists a reasonable apprehension of bias on the part of the
arbitrator.
[4]
The relief sought is an order setting aside
the award and remitting the dispute back for determination. Senwes
opposes the application
and seeks its dismissal with costs on an
attorney-and-client scale.
The factual background
[5]
The common cause facts are set out in the
joint practice note and can be summarised as follows.
[6]
On 8 April 2008, Flamwood Consortium and
Senwes concluded a Memorandum of Agreement (the MOA) regulating the
terms and principles
on which they intended to explore the
feasibility of a land development project in Klerksdorp. The MOA
recorded that Senwes wished
to realise the value of surplus land
around its head office building, and that Flamwood Consortium had
responded to a request for
proposals.
[7]
Clause 7 of the MOA provided for
arbitration as the mechanism for resolving disputes between the
parties.
[8]
On 12 June 2015, Senwes advised Flamwood
Consortium that it did not intend to continue executing the project.
Flamwood Consortium
urged Senwes to reconsider, but Senwes refused.
[9]
On 16 August 2016, Flamwood Consortium gave
notice to Senwes in terms of clause 9 of the MOA, requiring it to
remedy its breach.
[10]
On 31 March 2017, Senwes reversed its
position and acknowledged that it remained bound to the MOA.
[11]
On 11 August 2017, Senwes invoked clause
8.2 of the MOA to terminate the agreement. Flamwood Consortium
objected but agreed to a
consultation process.
[12]
On 5 November 2017, Flamwood Consortium
demanded that Senwes remedy its breach under clause 9 of the MOA.
[13]
On 12 February 2018, Flamwood Consortium
cancelled the MOA. On 27 March 2018, Senwes gave notice that Flamwood
Consortium's cancellation
constituted a repudiation and cancelled the
MOA.
[14]
A dispute arose, the second respondent
appointed the first respondent as arbitrator, and the parties
concluded an arbitration agreement
on 8 November 2018. A
pre-trial conference was held on 27 February 2020.
[15]
The arbitration hearing was conducted
virtually via Microsoft Teams from 4 to 7 May 2021. Witnesses gave
evidence. Written heads
of argument were exchanged, and oral
arguments were presented on 22 June 2021.
[16]
The arbitrator published his award on 6
August 2021, finding in favour of Senwes.
The arbitration award
[17]
The arbitrator's award, annexed as "FC1"
to the founding affidavit, runs to some 9 pages (excluding the
introductory portions).
For present purposes, the following findings
are of central importance.
[18]
The arbitrator identified three breaches
that Flamwood Consortium alleged Senwes had committed, which Flamwood
Consortium claimed
entitled it to cancel the MOA.
[19]
First,
the arbitrator dealt with Senwes' oral cancellation on 12 June 2015.
The arbitrator found that this breach was purged by
Senwes' letter of
31 March 2017, in which Senwes reversed its position and affirmed
that it remained bound to the MOA. The arbitrator
relied on the
principle in
Culverwell
v Brown
,
[2]
holding that Flamwood Consortium had not accepted the repudiation and
had elected to keep the contract alive, with the consequence
that the
repudiation remained "a thing writ in water".
[20]
Second, the arbitrator considered Senwes'
letter of 11 August 2017, which invoked clause 8.2 of the MOA to
terminate the agreement
on grounds of feasibility. The arbitrator
found that the letter was intended to be a notice of termination that
complied with the
MOA, and that the author had in all probability
overlooked the word "not" in clause 8.2. The arbitrator
concluded that
this probable misreading could not be construed as a
material breach of the MOA and did not give Flamwood Consortium a
right to
cancel.
[21]
Third, the arbitrator considered the
so-called "solar panels" and "conference centre"
breaches. The arbitrator
found that Senwes had undertaken to remove
the carports (and thus the solar panels affixed to them) at its cost,
and that the construction
of the conference facility on abutting land
did not breach the MOA. The arbitrator concluded that Senwes was, at
the relevant time,
able to avail the land for development as
contemplated in the MOA.
[22]
Having found that Flamwood Consortium did
not have a right to cancel the MOA, the arbitrator held that Flamwood
Consortium's purported
cancellation and claim for damages constituted
a repudiation, entitling Senwes to cancel the MOA. The arbitrator
dismissed Flamwood
Consortium's claim with costs.
The review application
[23]
Flamwood Consortium launched this review
application on 15 September 2021. The founding affidavit is deposed
to by Mr Henfred John
Loubser, the managing director of one of the
entities comprising the Flamwood Consortium and the representative of
Flamwood Consortium
in the arbitration.
[24]
The grounds for review are set out in
paragraphs 8 to 12 of the founding affidavit and elaborated upon in
the supplementary founding
affidavit filed in terms of Rule 53(4). In
summary, Flamwood Consortium contends that:
a)
The arbitrator misconducted himself by
failing to apply his mind to the evidence, disregarding Flamwood
Consortium's pleaded case,
making findings based on speculation
rather than evidence, and displaying a predetermined mindset;
b)
The arbitrator committed gross
irregularities by exceeding his powers, making findings outside the
pleadings, failing to furnish
reasons for certain factual findings,
and failing to provide a record of the arbitration proceedings;
c)
The award was improperly obtained (this
ground was abandoned in the heads of argument); and
d)
There exists a reasonable apprehension of
bias.
[25]
Senwes opposes the application. Its
answering affidavit is deposed to by Mr Martinus Hermanus Christie,
the senior legal advisor
of Senwes and the author of the 11 August
2017 letter.
[26]
The parties filed comprehensive heads of
argument, and the matter was argued before me on 25 May 2026.
The legal framework
for review of arbitral awards
[27]
It is necessary at the outset to restate
the fundamental principles governing judicial review of arbitral
awards under South African
law. These principles are well-established
and have been consistently applied by our courts.
[28]
Section 33(1) of the Arbitration Act
provides:
"(1) Where—
(a) any member of an
arbitration tribunal has misconducted himself in relation to his
duties as arbitrator or umpire; or
(b) an arbitration
tribunal has committed any gross irregularity in the conduct of the
arbitration proceedings or has exceeded its
powers; or
(c) an award has been
improperly obtained,
the Court may, on the
application of any party to the reference after due notice to the
other party or parties, make an order setting
the award aside."
[29]
As
the Supreme Court of Appeal observed in
Telcordia
Technologies Inc v Telkom SA Ltd
[3]
that:
"…[B]y
agreeing to arbitration the parties limit interference by courts to
the ground of procedural irregularities set
out in section 33(1) of
the Act. By necessary implication they waive the right to rely on any
further ground of review, 'common
law' or otherwise..."
[4]
[30]
The
basis on which an award will be set aside is a narrow one. The test
is stringent, and misconduct will not be readily inferred.
[5]
[31]
In
Dickenson
& Brown
, Innes CJ stated that:
"Now
I do not propose to attempt to give any definition of the word
'misconduct', for it is a word which explains itself. And,
if it is
used in its ordinary sense, I fail to see how there can be any
misconduct unless there has been some wrongful or improper
conduct on
the part of the person whose behaviour is in question."
[6]
[32]
In
Donner
,
the Court held at 352 that the misconduct referred to in the section
"must amount to dishonesty". While subsequent authorities
have somewhat softened this requirement, it remains the case that
something more than a mere error of law or fact is required.
A bona
fide mistake, whether of law or fact, does not constitute misconduct.
As was said in
Johan Louw
Konstruksie
that:
"…
[A finding or decision that] is not supported by evidence, should be
regarded, and dealt with, as a mistake of fact.
It will hence be
construed as misconduct only if the mistake is so gross or manifest a
nature that it demonstrates moral turpitude
in
the sense of dishonesty, partiality or bad faith
."
[7]
[33]
The
concept of "gross irregularity" under section 33(1)(b) of
the Act was discussed in
Goldfields
Investment Ltd v City Council of Johannesburg,
[8]
Schneider
J stated that
:
"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."
[9]
[34]
In
Bester
v Easigas (Pty) Ltd
,
[10]
Brand AJ with King J concurring, summarised the position as follows:
every irregularity in the proceedings will not constitute
a ground
for review; “the irregularity must have been of such a serious
nature that it resulted in the aggrieved party not
having his case
fully and freely determined.”
[11]
.
[35]
Importantly,
as the Constitutional Court observed in
Sidumo
v Rustenburg Platinum Mines Ltd
[12]
that
the behaviour which is perfectly well-intentioned and
bona
fide
,
though mistaken, may constitute a gross irregularity if it prevented
a fair trial of the issues. The crucial question is whether
it
prevented a fair trial.
[13]
[36]
Where
an arbitrator for some reason misconceives the nature of the enquiry
in the arbitration proceedings, with the result that
a party is
denied a fair hearing or a fair trial of the issues, that constitutes
a gross irregularity. However, 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.
If
parties choose arbitration, courts endeavour to uphold their choice
and do not lightly disturb it.
[14]
.
Accordingly, it follows that
the
attack on the award must be measured against these standards.
[37]
The
distinction between a review and an appeal is fundamental. A party
may not launch an appeal against an arbitral award in the
guise of a
review as was stated in
Telcordia
.
[15]
If courts are too quick to find fault with the way an arbitration has
been conducted, and too willing to conclude that the faulty
procedure
is unfair or constitutes a gross irregularity within the meaning of s
33(1), the goals of private arbitration may well
be defeated.
The nature of this
application
[38]
With these principles firmly in mind, I
turn to consider the true nature of the application before me. Senwes
contends that this
is not a genuine review but a thinly veiled appeal
against the arbitrator's findings. I consider that there is
considerable force
in this submission.
[39]
Flamwood Consortium's founding affidavit
runs to some 37 pages, but a careful reading reveals that the
overwhelming majority of
the complaints are directed at the
correctness of the arbitrator's factual findings and legal
conclusions. Flamwood Consortium
disagrees with the arbitrator's
assessment of the evidence, with his interpretation of the MOA, and
with his application of legal
principles to the facts as he found
them.
[40]
In its heads of argument, Flamwood
Consortium repeatedly refers to what the arbitrator "disregarded",
"failed to
appreciate", "misconceived", and
"erred in". These are the hallmarks of an appeal, not a
review. The fact
that Flamwood Consortium has framed its challenge as
a review under section 33 does not alter the essential character of
the attack.
[41]
That is not to say that a review can never
succeed based on an arbitrator's errors. As the authorities make
clear, an error may
be so gross or manifest that it demonstrates
misconduct or gives rise to a gross irregularity. But the threshold
is high, and the
applicant bears the onus of establishing that the
threshold has been crossed.
Evaluation of the
grounds for review
(a) The First Breach
(June 2015)
[42]
Flamwood Consortium contends that the
arbitrator erred in finding that Senwes' repudiation in June 2015 was
purged by its 31 March
2017 letter. Flamwood Consortium submits that
it had elected to reject the repudiation and keep the contract alive,
and that its
rights had become vested.
[43]
The
arbitrator dealt with this issue in paragraphs 30 to 34 of the award.
He relied on the principle in
Culverwell
[16]
,
which holds that where an aggrieved party elects not to accept a
repudiation but to keep the contract alive, the repudiation remains
"a thing writ in water" and may be withdrawn by the
defaulting party before the aggrieved party has acted upon it to
its
detriment.
[17]
[44]
Flamwood
Consortium's complaint is essentially that the arbitrator applied the
wrong legal principle or misapplied the correct one.
But that is a
complaint about an error of law. As the authorities make clear, an
error of law, without more, does not constitute
misconduct or a gross
irregularity.
[18]
[45]
Moreover, the arbitrator's finding was
supportable on the evidence. It was common cause that Flamwood
Consortium did not accept
the repudiation in June 2015. Instead, it
urged Senwes to reconsider and later gave notice in terms of clause
9. In these circumstances,
the arbitrator's conclusion that the
repudiation was purged cannot be said to be so manifestly wrong as to
demonstrate misconduct.
(b) The Second Breach
(August 2017)
[46]
Flamwood Consortium's complaint about the
second breach centres on the arbitrator's finding in paragraph 36 of
the award that the
author of the 11 August 2017 letter "in all
probability overlooked the word 'not' in line 1 of Clause 8.2".
[47]
Flamwood Consortium submits that this
finding was based on speculation, that there was no evidence to
support it, and that the arbitrator
exceeded his powers by going
beyond the pleadings. Flamwood Consortium also complains that it was
not given an opportunity to address
the arbitrator on this issue.
[48]
I have considered these submissions
carefully. In my view, they do not establish a reviewable
irregularity.
[49]
First, the finding was not essential to the
arbitrator's conclusion. The arbitrator held that even if the letter
constituted a breach,
it was not a material breach that entitled
Flamwood Consortium to cancel the MOA. The observation about the
author overlooking
the word "not" was, at most, an
ancillary comment.
[50]
Second, the finding was not made without
any basis. The letter itself invoked clause 8.2 while purporting to
terminate on grounds
of feasibility. Clause 8.2 applies to
termination for reasons not related to feasibility, while clause 8.1
applies to termination
for feasibility-related reasons. The natural
inference is that the author intended to rely on clause 8.1 but
mistakenly cited clause
8.2. The arbitrator's observation was a
reasonable inference from the text of the letter.
[51]
Third, the arbitrator's conclusion that
this breach did not give Flamwood Consortium a right to cancel was
clearly correct. Even
if the letter was procedurally defective, that
defect could not, without more, constitute a material breach
justifying cancellation.
Flamwood Consortium's real grievance was
that Senwes was terminating the MOA on grounds of feasibility without
having followed
the proper procedures. But that grievance went to the
validity of Senwes' termination, not to a breach by Senwes of its
obligations.
The arbitrator's conclusion on this point was, in my
view, legally sound.
[52]
Fourth, Flamwood Consortium's complaint
that it was not given an opportunity to address the arbitrator on
this issue is without
substance. The issue was ventilated in the
pleadings and in argument. Flamwood Consortium's counsel addressed
the interpretation
of clauses 8.1 and 8.2 in his submissions. The
fact that the arbitrator concluded differently from what Flamwood
Consortium anticipated
does not mean that Flamwood Consortium was
denied an opportunity to be heard.
(c) The Third Breach
(Solar Panels and Conference Centre)
[53]
Flamwood Consortium's most substantial
complaints relate to the arbitrator's treatment of the solar panel
project and the conference
centre. Flamwood Consortium contends that
the arbitrator misconstrued its case, disregarded evidence, made
findings unsupported
by the evidence, and displayed a predetermined
mindset.
[54]
It is necessary to examine what Flamwood
Consortium's pleaded case actually was. Paragraph 4.12 of the
particulars of claim (which
Flamwood Consortium itself emphasises in
its heads of argument) states that Senwes was "
de
facto
not able to avail the land in its
state, configuration, depiction, layout and totality as it was
defined and set out in the MOA".
Paragraph 4.13 then pleads that
Senwes' actions were in breach of clauses 5.2, 5.3, 5.4, and 5.5 of
the MOA.
[55]
The arbitrator correctly identified the
foundation of the third breach as being that, by reason of the solar
panel project and the
construction of the conference centre, Senwes
was
de facto
unable to avail the land. This is the allegation in paragraph 4.12.
The reference to clause 5 in paragraph 4.13 is consequential:
the
breach of clause 5 is alleged to arise from the same conduct.
[56]
Flamwood Consortium submits that the
arbitrator focused excessively on the availability of the land and
failed to appreciate the
independent significance of the clause 5
disclosure obligations. But the arbitrator's focus was entirely
understandable. If Senwes
was, in fact, able to avail the land for
development (as the evidence showed), then the breach of clause 5, if
any, would not have
been material. A party cannot cancel a contract
for breach of a disclosure obligation where the non-disclosed facts
have no material
impact on the ability to perform.
[57]
Turning to the evidence: The arbitrator
found that Senwes had undertaken to remove the carports at its cost.
Flamwood Consortium
disputes this finding, submitting that the
undertaking was never approved by the Senwes board and was never
finalised.
[58]
However, the evidence before the arbitrator
told a different story. Mr Loubser himself testified that Senwes had
indicated that
it could move the carports cheaper, and that he
accepted that Senwes would stand in for the costs of moving the
parking shelters.
This is recorded in the transcript at page 144,
lines 3-7, and page 182, lines 4-7. Moreover, the March 2015 report
(FWC3), which
Mr Loubser co-authored, stated in paragraph 7: "Senwes
has opted to move the carports at its cost."
[59]
In light of this evidence, the arbitrator's
finding that there was an undertaking by Senwes to remove the
carports was not only
supportable but inevitable. The fact that the
undertaking had not been formalised or approved by the board does not
negate its
existence as an expression of Senwes' position.
[60]
As for the solar panels, Mr Loubser
conceded that they could be removed, albeit with some difficulty. The
arbitrator found it unnecessary
to decide the degree of difficulty,
and I cannot fault him for that. If Senwes was going to remove the
carports (and thus the solar
panels affixed to them) at its own cost,
then the precise degree of difficulty was immaterial.
[61]
Regarding the conference centre, Mr Loubser
conceded during cross-examination that the conference facility
probably had very little
impact on availing the land, and that he was
not trying to add to Flamwood Consortium's pleaded case. He accepted
that the conference
centre was not constructed on the land earmarked
for development. In these circumstances, the arbitrator's finding
that the construction
of the conference facility did not breach the
MOA was clearly correct.
[62]
Flamwood Consortium submits that the
arbitrator disregarded its case based on clause 5 of the MOA and the
duty of good faith. I
disagree. The arbitrator was fully aware of
clause 5; he quoted it in paragraph 17 of the award. He simply
concluded, on the evidence,
that the conduct complained of did not
constitute a breach of the MOA. That was a finding of fact and law
within his jurisdiction
to make.
[63]
There is no basis in the record for
Flamwood Consortium's suggestion that the arbitrator had a
"predetermined mindset"
or was "oblivious" to the
true facts. The arbitrator engaged with the evidence, asked questions
of the witnesses, and
gave reasoned findings. The fact that Flamwood
Consortium disagrees with those findings does not mean that the
arbitrator was biased
or that the proceedings were unfair.
(d) The Record
[64]
Flamwood Consortium also complains about
the arbitrator's failure to provide a record of the arbitration
proceedings. The arbitrator
filed a notice in terms of Rule 53(1)(a)
and (b) stating that he did not have a record of the proceedings and
did not know whether
a complete copy of the record exists.
[65]
This complaint is without merit. The
arbitration was conducted virtually, and it was common cause that the
proceedings were recorded
by Senwes. The arbitrator was informed that
a typed transcript would take time to prepare. In these
circumstances, the arbitrator
cannot be criticised for not having a
record. Moreover, Flamwood Consortium has itself constructed and
delivered a record, so the
review has proceeded without impediment.
[66]
There is no suggestion that the arbitrator
deliberately destroyed or withheld a record. His notice under Rule 53
was entirely proper
in the circumstances.
The allegation of bias
[67]
Flamwood Consortium submits that, viewed
holistically, the circumstances give rise to a reasonable
apprehension of bias on the part
of the arbitrator. This submission
is founded on the same factual complaints that have already been
considered.
[68]
The
test for bias is well-established. In
Bernert
v ABSA Bank Ltd
,
[19]
the Constitutional Court held that the question is whether a
reasonable, objective and informed person would, on the correct
facts,
reasonably apprehend that the judicial officer has not or will
not bring an impartial mind to bear on the adjudication of the
case.
[20]
[69]
Flamwood Consortium points to the
arbitrator's remarks during the opening address about the carports
and solar panels, his findings
based on speculation, his alleged
disregard of evidence, and his failure to keep an open mind.
[70]
In assessing this submission, I must have
regard to the totality of the arbitrator's conduct, including the
parts of the award that
favoured Flamwood Consortium. In an earlier
award dated 5 May 2020, the arbitrator dismissed a point in limine
raised by Senwes
with costs. In the award under review, the
arbitrator found in Flamwood Consortium's favour on the issue of the
cession of rights
from DEEWHY Investments CC to Freimac (Pty) Ltd,
contrary to Senwes' submissions. These findings militate strongly
against any
suggestion of bias.
[71]
The arbitrator's remarks during the opening
address were innocuous. He asked questions to understand the issues.
He expressed a
provisional view about the carports, but that view was
based on the pleadings and the annexures. A judicial officer is
entitled
to form tentative views during the course of proceedings and
to test those views against the evidence. There is no requirement for
a completely blank slate.
[72]
A reasonable, objective, and informed
person, knowing all the relevant facts, would not have apprehended
that the arbitrator was
biased against Flamwood Consortium. The
arbitrator conducted the proceedings fairly, gave both parties a full
opportunity to present
their cases, and made reasoned findings. The
fact that those findings were adverse to Flamwood Consortium does not
create an apprehension
of bias.
The abandoned ground
[73]
In its heads of argument, Flamwood
Consortium advised that it no longer persists with its argument that
the award was improperly
obtained. This was a wise concession, as
there was no evidence to support such a serious allegation.
Disposition
[74]
Flamwood Consortium has failed to establish
any of the grounds for review under
section 33(1)
of the
Arbitration
Act. The
arbitrator did not misconduct himself. He did not commit any
gross irregularity, nor did he exceed his powers. There is no basis
for finding that the award was improperly obtained, and there is no
reasonable apprehension of bias.
[75]
What Flamwood Consortium seeks is an appeal
against the arbitrator's findings of fact and law. That is not
permissible under the
arbitration agreement (which excluded the right
to appeal) and is not countenanced by the Act. The arbitrator was the
parties'
chosen private judge, and his findings are final and
binding, absent a reviewable irregularity. None has been shown.
[76]
The application must therefore be
dismissed.
Costs
[77]
Senwes seeks costs on an
attorney-and-client scale. It submits that Flamwood Consortium made
serious allegations of misconduct and
bias that were unsustainable,
and that the court should express its displeasure by awarding
punitive costs.
[78]
There is force in this submission. Flamwood
Consortium alleged that the arbitrator, a retired judge of this
Division, had misconducted
himself, committed gross irregularities,
and was biased. These are grave allegations. Having regard to the
record, they had no
reasonable foundation. Flamwood Consortium also
alleged that the award was improperly obtained, a ground that was
ultimately abandoned.
[79]
In these circumstances, I am satisfied that
a punitive costs order is warranted. The allegations were not merely
unsuccessful; they
were, with respect, unfounded and should not have
been made.
[80]
In the exercise of my discretion, I order
that Flamwood Consortium pay Senwes' costs on the scale as between
attorney and client.
Order
[81]
The following order is made:
1.
The application is dismissed.
2.
The applicant shall pay the third
respondent's costs, such costs to be taxed on the scale as between
attorney and client including
costs occasioned by the employment of
senior counsel on scale C.
MUDAU J
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
JOHANNESBURG
APPEARANCES
For
the Applicants: Adv HR Fourie SC
Instructed
by:
Van Staden Nysschem Attorneys
For
the 3
rd
Respondent: Adv JP Vorster SC
Instructed
by
: Tim du Toit Attorneys
Date
of Hearing:
25 May 2026
Date of Judgment: 23 June
2026
[1]
42
of 1965.
[2]
[1989]
ZASCA 100
;
1990 (1) SA 7
(A) (
Culverwell
).
[3]
[2006] ZASCA 112
;
2007
(3) SA 266
(SCA) (
Telcordia
).
[4]
Id
at
para 51.
[5]
In
this regard, See
Dickenson
& Brown v Fisher's Executors
1915
AD 166
at 174-175
; Donner
v Ehrlich
1926
AD 346
at 352
in
which case the court found that even a gross mistake, unless it
establishes mala fides or partiality, would be
insufficient to warrant interference
(Donner)
; Johan
Louw Konstruksie (Edms) Bpk v Mitchell NO & Another
2002
(3) SA 171
(C) at para 43
(Johan
Louw Konstruksie).
[6]
Dickenson
& Brown v Fisher's Executors
at
175-176.
[7]
Johan
Louw Konstruksie
at
para 46.
[8]
1938
TPD 551.
[9]
Id
at
560.
[10]
1993
(1) SA 30 (C).
[11]
Id
at
43. See also
S
v Moodie
1961 (4) SA 752
(A).
[12]
2008
(2) SA 24 (CC)
[13]
Id
at
para 263.
[14]
In
this regard, see
Palabora
Copper (Pty) Ltd v Motlokwa Transport and Construction (Pty) Ltd
[2018] ZASCA 23
;
2018 (5) SA 462
(SCA) at para 8 citing
Telcordia
.
[15]
The
court in
Telcordia
at para 109 held that: “
The
high court found (contrary to the finding of the arbitrator) that
one had to look to the Project Plan and the SOCs to determine
the
specific functionalities and features of the software to be
delivered. For this finding the court relied – impermissibly
–
on parts of the contract that the parties by agreement did not place
before the arbitrator. This is another indication
of the fact that
the court misconceived its function: it even dealt with the review
as an appeal in the broad sense taking into
account facts that were
not before the lower tribunal.”
[16]
Culverwell
above
fn 2.
[17]
Culverwell
id at 28B-F; see also
Mahabeer
v Sharma NO and Another
1985 (3) SA 729
(A) at 736E-H.
[18]
In
this regard, see
Ellis
v Morgan
1909 TS 576
;
Telcordia
above fn 3.
[19]
2011
(3) SA 92 (CC)
[20]
Id
at
para 29.