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[2010] ZAWCHC 99
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Du Toit NO v Road Accident Fund (A590/09) [2010] ZAWCHC 99 (19 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE HIGH COURT, CAPE TOWN]
Case
No: A590/09
In
the matter between:
A
J DU TOIT N.O.
Appellant
and
THE
ROAD ACCIDENT FUND
Respondent
JUDGMENT
DELIVERED
: 19 MAY 2010
FOURIE,
J:
[1]
This is an appeal, with leave of the court
a
quo
,
against the following order made by Matojane AJ (as he then was) in a
review application:
“
1.
That the ruling of first respondent
(the
arbitrator, Adv. H M Carstens SC)
issued on 7
April 2008 be set aside.
2.
That the arbitration commence afresh before another arbitrator.
3.
That second respondent
(appellant)
is
ordered to pay the costs of this application.”
[2]
The background to the review application may be briefly summarised as
follows:
Appellant
is the claimant (as the curator
ad
litem
for one Du Preez), and respondent the defendant, in a part heard
claim for damages (resulting from a motor vehicle collision that
occurred during 2001) which claim, by agreement, has been referred to
arbitration. The hearing commenced before the arbitrator
during 2004,
and had run for 33 days before respondent brought an application
during April 2008, for an order directing Du Preez
to submit to an
assessment by a psychiatrist, Dr. L Paneri-Peter. On 7 April 2008,
the arbitrator heard and dismissed the application.
This prompted
respondent to bring the review application, which resulted in the
aforesaid order made by Matojane AJ.
[3]
The principal issue in the arbitration, is whether Du Preez has
developed a psychiatric disorder (psychosis)
as a consequence of the
injuries sustained by him in the collision. Respondent contends that
the alleged psychosis is simulated
and that the claim for damages is
fraudulent. Although Du Preez had been subjected to various medical
examinations by a variety
of medical experts, including several
psychiatrists, prior to and during the course of the arbitration,
respondent considered it
necessary for him to be assessed by Dr.
Paneri-Peter to show that the claim is fraudulent.
[4]
It is common cause that at the hearing of 7 April 2008, respondent’s
counsel was allowed to make
introductory remarks concerning the
merits of the application, whereupon the arbitrator
mero
motu
initiated
a debate with him regarding the impact of the proposed assessment by
Dr. Paneri- Peter on Du Preez’s constitutional
right to
privacy. In the course of this debate the arbitrator interjected and
dismissed the application.
[5]
In its founding papers in the review application, respondent alleged
that the arbitrator failed to allow
respondent’s counsel an
opportunity to fully respond to the constitutional issue raised by
the arbitrator. Respondent stressed
that the arbitrator had summarily
and totally unexpected dismissed the application, without allowing
respondent’s counsel
an opportunity to present his full
argument. In its answering papers, appellant did not take issue with
this version of the events
as described by respondent.
[6]
In reviewing and setting aside the ruling made by the arbitrator on 7
April 2008, Matojane AJ found
that the manner in which the arbitrator
conducted himself at the hearing, was grossly irregular as he
displayed an attitude of
pre-judgment that was not capable of being
altered, regardless of the arguments that were to be presented on
behalf of respondent.
The learned Judge held that respondent was
denied a fair and complete hearing and concluded that the arbitrator
had misconducted
himself within the meaning of section 33 of the
Arbitration Act No. 42 of 1965 (“the
Arbitration Act&rdquo
;).
The learned Judge also found that the conduct of the arbitrator was
such that a fair minded person would reasonably have suspected
that
he might not resolve the question before him with a fair and
unprejudiced mind.
[7]
In adjudicating the appeal, I believe that it is necessary, at the
outset, to distinguish between an
arbitral award and a procedural
ruling made in the course of an arbitration. I am respectfully of the
view that the failure of
the parties and the court
a
quo
to bear this distinction in mind, caused them to adopt the wrong
approach in dealing with the review application.
[8]
The
Arbitration Act does
not define the term “award”, but
merely provides that an award includes an interim award. It is,
however, clear from
the provisions of the
Arbitration Act that
an
award (including an interim award) refers to a final decision by the
arbitrator on the issues in dispute between the parties.
This view is
confirmed by
The
Law of South Africa
,
2
nd
Edition, Vol. 1, para 596, where the following is said:
“
The
term award should be restricted to decisions of the arbitral tribunal
that finally determine the substantive issues with which
they deal…an
interim award finally determines the issues with which it deals.”
[9]
In English arbitration law, which served as a model for the
development of our arbitration law, there
is also no statutory
definition of an award. In considering what an award is,
Russel
on
Arbitration
,
22
nd
Edition, para 6-001, states that, in principle, an award is a final
determination of a particular issue or claim in the arbitration.
[10]
In
Gaillard
& Savage, International
Commercial
Arbitration
,
at 737, the term “award” is given a wider meaning, as
including not only final decisions concerning the merits of
the
dispute, but also a final decision on a procedural issue leading the
tribunal to end the proceedings. I do not unreservedly
concur with
this view, but it should be borne in mind that the learned authors
only refer to a decision on a procedural issue which
actually results
in the final determination of the arbitration proceedings.
[11]
A procedural ruling is one made by the arbitrator in the course of
the proceedings in regard to procedural
issues. It does not determine
any of the substantive issues in dispute between the parties to the
arbitration. In
Arbitration
in South Africa
:
Law
and Practice
,
Butler
and Finsen
,
(1993), page 175, the nature of a procedural ruling is explained as
follows:
“
Procedural
rulings deal with matters like the admissibility of evidence, the
amendment of pleadings, an application for a postponement,
the
interpretation of rules of procedure applying to the proceedings by
virtue of the arbitration agreement and an application
by one party
that the arbitrator refer a question of law to the court for an
opinion.”
This
list of procedural rulings provided by the learned authors, is
obviously not exhaustive. It should also be borne in mind that
a
procedural ruling is usually interlocutory in nature and not intended
to finally dispose of any of the substantive issues in
dispute
between the parties to the arbitration.
[12]
An important consequence of a procedural ruling made in the course of
a trial in a lower court or in quasi-judicial
proceedings such as an
arbitration, is that a review thereof should usually only be sought
after the conclusion of the proceedings.
However, in rare and
exceptional cases, a review may be brought prior to the conclusion of
the proceedings.
Butler
and
Finsen
,
supra
,
explain this principle as follows at page 175:
“
A
court will only interfere with a procedural ruling by an arbitrator
during the course of the reference in exceptional circumstances.
A
party who feels aggrieved by an arbitrator’s procedural ruling
will therefore usually have to wait until the arbitrator
makes an
award and then try to use the alleged procedural irregularity as a
ground to attack the award.”
In
general, see
Wahlhaus
v Additional Magistrate, Johannesburg
1959 (3) SA 113
(A) at 119H-120C;
Hip-Hop
Clothing Manufacturing CC v Wagener NO &
Another
1996 (4) SA 222
(C) at 230G;
Acting
Premier, Western Cape v Regional Magistrate, Bellville
2006
(2) SA 79
(C) at 85;
Brock
v
SA
Medical and Dental Council
1961 (1) SA 319
(C) at 324 D-E. In regard to arbitrations, see
Tuesday
Industries (Pty) Ltd v Condor Industries
(
Pty)
Ltd
and
Another
1978 (4) SA 379
(T) at 383F-384E;
Badenhorst-Schnetler
v Nel en ʼn Ander
2001 (3) SA 631
(C).
[13]
Bearing in mind this fundamental difference between an arbitral award
and a procedural ruling made by an
arbitrator in the course of an
arbitration, it is clear to me that the parties erred in their
approach in the court
a
quo,
and on appeal, in applying
section 33
of the
Arbitration Act. The
order made by the arbitrator on 7 April 2008, refusing respondent’s
application to have Du Preez assessed by Dr. Paneri-Peter,
amounted
to no more than an interlocutory procedural ruling.
Section 33
of the
Arbitration Act, deals
exclusively with the setting aside of an
arbitral award and not with procedural rulings. The drastic remedy
provided in
section 33
(4), underscores the Legislature’s
intention, i.e that
section 33
only applies to the setting aside of
an arbitrator’s award, i.e his or her decision on the
substantive issues submitted to
arbitration.
[14]
It was submitted on behalf of appellant, that it may have absurd
consequences to apply the provisions of
section 33
of the
Arbitration
Act to
an award, but not to a ruling (which is not an award) by an
arbitrator. I do not agree with this submission.
Section 33
deals
expressly with the setting aside of an award. It has to be accepted
that the Legislature is aware of the difference between
an arbitral
award and a procedural ruling. If, therefore, the Legislature
intended
section 33
to also apply to procedural rulings, I would have
expected a clear indication in the wording of the section of such an
intention.
In my view, the wording of
section 33
is unambiguous; it
refers to an arbitral award which is final in nature and not to an
interlocutory procedural ruling. In fact,
I believe that to apply
section 33
to a procedural ruling, would result in an absurdity,
particularly in view of the drastic remedy in section 33 (4) which
would
be brought into play upon the setting aside of any procedural
ruling in the course of the arbitration.
[15]
In my opinion, the correct approach in dealing with an application
for the setting aside of an interlocutory
procedural ruling by an
arbitrator, is dictated by our common law and not by
section 33
of
the
Arbitration Act. I
therefore respectfully disagree with the view
expressed in
Badenhorst-Schetler
v Nel
,
supra
,
at 637F-G, that the principles applied by the Courts in interpreting
section 33
(1) of the
Arbitration Act, should
be applied in dealing
with a review application for the setting aside of a procedural
ruling made by an arbitrator in the course
of arbitration
proceedings.
[16]
In my view, a court’s power to intervene in the course of an
arbitration to review an arbitrator’s
procedural ruling, is
correctly summarised as follows in
The
Law of South Africa
,
supra
,
at para 594:
“
The
court has an inherent power under the common law to intervene in the
course of an arbitration prior to an award in order to
review an
arbitral tribunal’s procedural ruling, although this power will
ostensibly only be exercised in exceptional circumstances.
The
irregularity must also be of a sufficiently serious nature that would
justify a court, at the award stage, in setting aside
the award. The
court has justified the availability of this power on the basis that
if it could not intervene to correct a fundamental
irregularity
before the award, considerable wasted costs could be incurred by
continuing with the arbitration proceedings and at
least one party
could suffer serious prejudice.”
[17]
The circumstances in which a High Court will exercise its common law
jurisdiction, to interfere with the
procedural ruling of an
arbitrator, are conveniently set out as follows in the
Tuesday
Industries
-case,
supra at 384C-D:
“
I
am of the opinion that on the affidavits as amplified by the record
of the proceedings the applicant has not made out a case to
show that
the conduct, in refusing the postponement, is so arbitrary as to
justify the inference that the court could come to the
conclusion
that the arbitrator did not consider the matter, or apply his mind to
the matter, or that there was a grave irregularity
in the
proceedings. It is only under those circumstances that the court
would be justified in taking the ruling of the arbitrator
under
review.”
[18]
In sum, interference on review with the arbitrator’s procedural
ruling of 7 April 2008, would be justified:
(a)
only in exceptional circumstances; and
(b)
if the conduct of the arbitrator, in
refusing respondent’s application, was so arbitrary as to
justify the inference that
he did not consider the matter, or apply
his mind to the matter; or where there was a grave irregularity in
the proceedings.
[19]
A
caveat
which should be added to the aforegoing, is that not every
irregularity committed by an arbitrator will constitute a ground for
review. As was stressed in
Bester
v Easigas Pty Ltd & Another
1993 (1) SA 30
(C) at 43B-C, an irregularity must have been of such a
serious nature that it resulted in the aggrieved party not having his
or
her case fully and fairly determined. In
The
Law of South Africa
,
supra
at para 594, it is emphasised that the irregularity must be of a
sufficiently serious nature that would justify a court, at the
award
stage, in setting aside the award.
[20]
A court called upon to review a procedural ruling made by an
arbitrator, should also bear in mind the following
warning sounded by
the Constitutional Court in
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and
Another
,
2009 (4) SA 529
(CC) at para 236:
“
Courts
should be respectful of the intentions of the parties in relation to
procedure. In so doing, they should bear in mind the
purposes of
private arbitration which include the fast and cost-effective
resolution of disputes. If courts are too quick to find
fault with
the manner in which 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
s33(1)
, the
goals of private arbitration may well be defeated.”
Although
the
Lufuno
-case
involved a final award and not a procedural ruling, the general
comments of our highest court are equally applicable in the
instant
matter.
[21]
I now turn to the question whether there were exceptional
circumstances justifying interference on review
in the course of the
arbitration, with the procedural ruling made by the arbitrator on 7
April 2008. Put differently, were there
exceptional circumstances
justifying a departure from the usual approach that a party who feels
aggrieved by an arbitrator’s
interlocutory procedural ruling,
will have to wait until an award is made before the alleged
procedural irregularity is used as
a ground to attack the award.
[22]
In
Seatrans
Maritime v Owners, MV Ais Mamas & Another
2002 (6) SA 150
(C), Thring J researched the meaning of the phrase
“exceptional circumstances” and concluded as follows at
157B:
“
Depending
on the context in which it is used, the word “exceptional”,
has two shades of meaning: the primary meaning
is unusual or
different; the secondary meaning is markedly unusual or specially
different.”
[23]
In view of the approach, followed over many decades by our courts,
that procedural rulings are usually not
to be interfered with during
the course of a lower court’s or quasi-judicial body’s
proceedings, it seems to me that
“exceptional circumstances”
should in the present context bear the strict meaning of markedly
unusual circumstances.
Only if exceptional circumstances of this
nature are present, should a court, in my opinion, interfere on
review with a procedural
ruling made by an arbitrator in pending
arbitral proceedings. In
Badenhorst-Schnetler
v Nel
,
supra
at 639F-G, the court held, correctly in my view, that the required
exceptional circumstances were present. Cleaver J decided that
this
requirement was met as the arbitrator had
bona
fide
restricted his jurisdiction in such a way that all further
proceedings in the arbitration could have resulted in a miscarriage
of justice. Immediate interference was accordingly justified.
[24]
As explained above, respondent’s main complaint is that at the
hearing of 7 April 2008, the arbitrator,
who
mero
motu
raised the constitutional issue of Du Preez’s right to privacy,
failed to allow respondent’s counsel an opportunity
to respond
fully to this issue. This, respondent alleges, constituted a
miscarriage of justice, as it was denied a fair and complete
hearing.
In the result, respondent maintains, it was denied the opportunity of
having its case fully and fairly determined. To
this respondent adds
that, in the circumstances, it harboured a reasonable apprehension
that the arbitrator is biased against it
and is not impartial in
dealing with the matter.
[25]
It should be mentioned that at no stage has respondent alleged that
there are exceptional circumstances justifying
intervention on review
in the course of the arbitration, prior to an award being made by the
arbitrator. On appeal the crux of
the argument on behalf of
respondent was along the same lines as in the court
a
quo
,
i.e. that the arbitrator misconducted himself by failing, in breach
of the
audi
alteram partem
principle, to allow respondent’s counsel an opportunity to
fully present his argument on the constitutional issue. This conduct,
respondent’s counsel argued, is sufficiently egregious to
amount to misconduct in terms of
section 33
(1) of the
Arbitration
Act, warranting
the setting aside of the ruling of 7 April 2008 and
the granting of an order that the arbitration is to commence
de
novo
before another arbitrator. In argument on appeal, no reliance was
placed on specific exceptional circumstances justifying interference
on review during the course of the arbitration proceedings. I should
also mention that in the judgment of the court
a
quo
,
no finding was made as to the existence of exceptional circumstances
justifying intervention in the course of the arbitration
proceedings.
[26]
As mentioned earlier, the substance of respondent’s application
brought before the arbitrator, was
to obtain further evidence and the
ruling of the arbitrator on 7 April 2008, was nothing more than
procedural in nature. It was
clearly not an award of a final nature,
which could have been attacked in terms of
section 33
of the
Arbitration Act. In
view of the purely interlocutory nature of the
ruling, one can only speculate as to how the arbitration would have
proceeded had
the ruling not been taken on review by respondent. In
such event, it may be that during the continued hearing of the
arbitration,
changed circumstances or available evidence would have
justified respondent seeking a further ruling from the arbitrator to
have
Du Preez assessed by Dr. Paneri-Peter or another psychiatrist.
One can obviously not predict what the arbitrator’s ruling
in
regard thereto would have been. It may also be that the need to have
Du Preez assessed, could have fallen away as the hearing
progressed.
One may also speculate that, even if the ruling of 7 April 2008 were
to stand, that the final outcome of the arbitration
could have been
in favour of respondent. It is impossible to predict, before the
conclusion of the arbitration, whether the arbitrator
would find that
Du Preez is psychotic or whether he is a malingerer. All of this
demonstrates, in my view, that the proper time
for an attack on this
procedural ruling of the arbitrator is at the conclusion of the
arbitration when an award is made. Only then
would one be able to
establish the impact and possible prejudice to respondent, if any, of
the ruling of 7 April 2008.
[27]
In my opinion, it has not been shown that this was a proper case in
which the interlocutory procedural ruling
of the arbitrator should,
during the course of the arbitration, be taken on review. On the
contrary, I am of the view that respondent
failed to show that at the
time when the ruling was taken on review, there were exceptional
circumstances, in the sense of markedly
unusual circumstances
justifying interference by a court prior to the arbitral award being
made. It is worthwhile to heed the following
warning of Reynolds J in
Wessels
v General Court Martial & Another
1954 (1) SA 220
(E) at 222C:
“
The
court has this power to interfere at this stage, but it should
hesitate to intervene unless the circumstances are very clear
and
require interference.”
I
hold the view that on the facts placed before the court
a
quo
there was no basis for a finding that circumstances “
which
are
very
clear and require interference”,
were present.
[28]
I should add that, in my view, there is a fundamental difference
between the present matter and the circumstances
prevailing in the
Badenhorst-Schnetler
case. In the latter, as I have already indicated, early interference
was justified as the arbitrator’s erroneous interpretation
of
his own terms of reference would have resulted in him excluding all
the evidence relating to the mitigation of damages, which
was
materially relevant to the issues which had been referred to
arbitration. In the instant matter, however, no such exceptional
circumstances have been alleged or shown to exist, to justify
interference by the court in the course of the arbitration. On this
basis alone, the review application ought, in my view, to have been
dismissed.
[29]
I proceed, however, to decide the remaining issue, whether, if
interference by the court during the course
of the arbitration was
justified, respondent has shown that the arbitrator acted reviewably.
As mentioned earlier, the court has
an inherent power under the
common law to intervene in circumstances where it can be said that
the arbitrator did not consider
the matter, or apply his mind to the
matter, or where there was a grave irregularity in the proceedings.
In the instant matter
the gravamen of respondent’s complaint is
that there was a grave irregularity in the proceedings, in that
respondent’s
counsel was not allowed to present full argument
prior to the arbitrator dismissing respondent’s application.
This conduct,
respondent contends, also justifies an inference of
bias on the part of the arbitrator.
[30]
Firstly, I hold the view that, for the reasons furnished in paragraph
26 above, even if the arbitrator’s
conduct is regarded as a
reviewable irregularity, it cannot at this stage of the arbitration
proceedings be said that it resulted
in respondent not having had a
fair hearing. This determination, as explained above, can only be
properly be made at the end of
the proceedings after an award had
been made. Put differently, it cannot, at this stage, be found that
the consequences of the
alleged irregularity are of a sufficiently
serious nature to justify a court, at the award stage, in setting
aside the final award.
[31]
Secondly, I am, for the reasons which follow, in any event not
convinced that the conduct of the arbitrator,
in cutting respondent’s
counsel short during argument on 7 April 2008, constituted a
reviewable irregularity.
[32]
In essence, respondent’s complaint is that it was not afforded
a fair hearing. In the
Lufuno
-case
,
supra
at para 261, the Constitutional Court emphasised the requirement of
fairness, also in arbitration proceedings, thus:
“
The
requirement of fairness obtains there, as it does in adversarial
proceedings. Its content is simply different. In each case,
the
question will be whether the procedure followed afforded both parties
a fair opportunity to present their case”.
[33]
It is also worthwhile to have regard to what Harms JA had to say
about the requirement of fairness in court
proceedings, in
Take
& Save
Tradings
CC and Others v The Standard Bank of SA Limited
2004 (4) SA 1
(SCA) at para 3:
“
Fairness
of court proceedings requires of the trier to be actively involved in
the management of the trial, to control the proceedings,
to ensure
that public and private resources are not wasted, to point out when
evidence is irrelevant, and to refuse to listen to
irrelevant
evidence. A supine approach towards litigation by judicial officers
is not justifiable either in terms of the fair trial
requirement or
in the context of resources.”
Heed
should also be taken of the warning sounded by the Constitutional
Court in
Lufuno
,
as far as arbitration proceedings are concerned, to which I have
referred in paragraph 20 above.
[34]
I agree with the submission made on behalf of appellant, as to the
importance of viewing the arbitrator’s
ruling in the light of
the factual matrix in which it was given. It is therefore necessary
to have regard to the background facts
and circumstances, to which
the arbitrator would have been alive, when making his ruling on 7
April 2008. One should not merely
focus on the conduct of the
arbitrator in cutting respondent’s counsel short during
argument, thereby not allowing him a
full opportunity to respond to
the constitutional issue raised by the arbitrator. The relevant
background facts and circumstances
are set out hereunder.
[35]
The arbitration commenced during 2004and had run for a total of 33
days, when respondent brought the application
for an order directing
Du Preez to submit to an assessment by the psychiatrist, Dr.
Paneri-Peter. Prior to the arbitrator hearing
oral argument on 7
April 2008, respondent stated its case in application papers filed of
record and legal argument was presented
in heads of argument filed on
behalf of respondent. The arbitrator confirms that he perused and
considered the contents of these
documents prior to making his
ruling. Respondent therefore had every opportunity to place all
relevant facts and arguments before
the arbitrator prior to the
hearing of the application.
[36]
At the commencement of the hearing on 7 April 2008, the arbitrator
advised respondent’s counsel that
he was not required to
address him on the issue of urgency. The arbitrator then raised the
issue of Du Preez’s constitutional
right to privacy with
respondent’s counsel, a consideration that was not addressed by
respondent in its heads of argument.
Respondent’s counsel was
allowed the opportunity to respond to the constitutional issue raised
by the arbitrator and in argument
he relied on
section 19
of the
Road
Accident Fund Act No. 56 of 1996
and certain authorities. The debate
between the arbitrator and respondent’s counsel, in regard to
the constitutional issue,
then continued and in the course of
respondent’s counsel responding, the arbitrator interjected and
dismissed the application.
[37]
I believe that it is important to note, as submitted on behalf of
appellant, that respondent does not state
that it was deprived of the
opportunity to bring to the attention of the arbitrator particular
aspects that were not addressed
in the application papers and the
heads of argument or during oral argument. Nor did respondent’s
counsel, before the dismissal
of the application, ask for time to
consider the constitutional issue or to file additional heads of
argument in regard thereto.
[38]
It is also important, in my view, in considering the conduct of the
arbitrator, to bear in mind that, in
emphasising Du Preez’s
right to privacy, the arbitrator would have been aware of the
following history of examinations and
assessments to which Du Preez
had been subjected to determine whether he was suffering from an
underlying psychotic disturbance
or not:
(a)
On 12 December 2003, respondent’s clinical psychologist, Mr. G
Van Wyk, identified certain
unusual symptoms that could be psychotic.
(b)
On 25 November 2003, appellant’s neuropsychologist, Dr. Madden,
found that Du Preez was neuropsychologically
very unstable and that
there was evidence of dementia.
(c)
Assessment reports dated 5 January 2004 and 15 October 2004, prepared
by respondent’s neuropsychologist,
Ms. De Villiers, were filed.
(d)
Reports dated 9 September 2003 and 18 December 2004 respectively,
prepared by respondent’s neurosurgeon,
Dr. Parker, were filed.
(e)
Reports dated 13 September 2004 and 22 October 2004 respectively,
prepared by appellant’s
psychiatrist, Dr. Le Fevre, were filed.
He diagnosed a psychotic disorder due to head injury.
(f)
On 16 March 2005 Dr. George, appellant’s psychiatrist, stated
in a letter that he had diagnosed
evidence of a psychosis, in
addition to dementia due to brain damage.
(g)
During 2005, and on the instructions of respondent, Du Preez was
assessed by the neuropsychiatrist,
Dr. Hugo. During
cross-examination, Dr. Hugo conceded that he was not an expert on
psychosis and stated that Prof. Oosthuizen was
an expert in this
field.
(h)
Prof. Oosthuizen, a psychiatrist, reported that Du Preez was
suffering from a psychosis. After Dr. Hugo
and Prof. Oosthuizen had
discussed the possibility of Du Preez being assessed by another
medical expert, Prof. Oosthuizen objected
to Dr. Hugo allegedly
misrepresenting their conclusions. Be that as it may, Prof.
Oosthuizen reported that in order to have Du
Preez examined by
another medical expert, he would have to be kept medication free for
a month. He concluded as follows:
“
It would
be clinically unwise and ethically unacceptable to take him off his
medication at this time. The concern would be that,
if the psychosis
became much worse he (a) could potentially harm himself or others and
(b) may not respond to the medication in
the same manner.”
[39]
It appears to me that, in these circumstances, the arbitrator was
fully justified in raising the issue of
Du Preez’s
constitutional right to privacy, a factor which respondent had not
taken into account in its application papers
or in its heads of
argument.
[40]
It is also necessary, for purposes of the present enquiry, to bear in
mind the fundamental differences between
arbitration proceedings and
litigation in a court, particularly when the fairness of procedure is
under consideration. I have already,
to a certain extent, alluded to
these differences. It is worthwhile, though, to emphasise the
following views expressed by the
Constitutional Court in the
Lufuno
-case,
supra
at para 236:
“
The
final question that arises is what the approach of a court should be
to the question of fairness. First, we must recognise that
fairness
in arbitration proceedings should not be equated with the process
established in the uniform rules of court for the conduct
of
proceedings before our courts. Secondly, there is no reason why an
investigative procedure should not be pursued as long as
it is
pursued fairly. The International Conventions make clear that the
manner of proceeding in arbitration is to be determined
by agreement
between the parties and, in default of that, by the arbitrator.”
[41]
The rationale for the reluctance of courts to interfere with the
procedural rulings of an arbitrator, is
even more accentuated in
matters such as the present, where the rules of the Arbitration Forum
require the arbitrator to determine
the issues before him in a just,
expeditious, economical and final manner. (See
Rule 9.1).
Reference
should also be made to
Rule 9.2
, which provides that the arbitrator
shall have the widest discretion and powers allowed by law, or
determined by the parties, to
make any ruling or give any direction
mentioned in the rules, or as he otherwise considers necessary or
advisable for the just,
expeditious, economical and final
determination of all the disputes raised in the proceedings. (See
also
Rule 9.3.18).
Further,
Rule 9.3.6
provides that the arbitrator
shall have the power to limit or exclude such evidence as he or she
deems to be irrelevant or unnecessarily
repetitive and to adopt an
investigative approach in an attempt to narrow the points of dispute
and to limit the scope of the evidence
that has to be presented.
[42]
While dealing with the rules of the Arbitration Forum, I should also
refer to
Rules 4.2
and
4.5.3
. The first provides that the parties
shall each within 20 days from the conclusion of the first meeting
held prior to the arbitration,
deliver a summary of the opinions, and
the reasons therefor, of any expert witness that they intend calling.
Rule 4.5.3
, provides that the parties shall at a later summary
process meeting consider the holding of a meeting between experts
with the
purpose of narrowing the points of dispute between them or
the calling of a third expert, agreed on by the parties, to advise on
the reports of other experts. The rules do not appear to allow for
expert reports, additional to the aforesaid, to be filed, but
it is
clear from the number of reports filed in the instant matter, that
these rules were not strictly adhered to. However, it
seems that the
admission of such additional expert reports or evidence, is dependent
upon the exercising of a discretion on the
part of the arbitrator.
[43]
When the conduct of the arbitrator is considered against the
background facts and circumstances, as well
as the applicable legal
principles, read with rules of the Arbitration Forum, I incline to
the view that it has not been shown
that his conduct on 7 April 2008,
constituted a reviewable irregularity in the proceedings. On the
contrary, I hold the view that
the arbitrator properly raised and
debated the constitutional issue with respondent’s counsel.
Respondent’s counsel
was allowed the opportunity to respond to
the constitutional issue and the fact that the arbitrator may not
have been impressed
with his argument, and accordingly disposed of
the matter expeditiously, does not, in my opinion, amount to the
grave irregularity
for which respondent contends. In fact, having
regard to the requirement of the rules of the Arbitration Forum,
namely to dispose
of issues expeditiously and economically, the
arbitrator was, in my opinion, fully within his rights in acting in
the manner which
he did.
[44]
In my view respondent was allowed a reasonable opportunity to state
its case, by means of its application
papers and in the heads of
argument. In addition, respondent’s counsel was afforded the
right of oral argument, while our
courts incline to the view that
oral representations are unnecessary where adequate provision is made
for written ones. See Cora
Hoexter,
Administrative
Law in South Africa
,
page 334. In
Pick
ʼn Pay
Retailers
v Commissioner for SARS
,
SATC52, Van Reenen J said the following at para 24:
“
The
particular manifestation of the applicant’s entitlement to fair
procedure which had allegedly been violated is its right
to a
hearing. Assuming that it was thereby intended to refer to the
failure by the fifth respondent to have allowed the making
of oral
submissions by the applicant’s legal representatives, my
understanding of the legal position is that no right of
that nature
exists.”
See
also
Catholic
Bishops Publishing Company v State President and
Another
1990
(1) SA 849
(A) at 871C-E, where it was decided that the failure to
grant a personal audience did not contravene the principle of
audi
alteram partem
.
[45]
Admittedly, the conduct of the arbitrator, in cutting short the
argument of respondent’s counsel, may
be regarded as abrupt or
dismissive, but it certainly cannot, in my view, be regarded as so
gross and unreasonable that it justifies
interference by a court on
review during the course of the arbitration proceedings. It should be
borne in mind that the arbitrator
is an experienced senior counsel of
the Cape Bar of many years standing and that, in any event, litigants
should not be too sensitive
and easily upset by the manner in which a
presiding officer or arbitrator may deal with arguments presented on
their behalf, especially
where the arbitrator is not impressed by
such arguments.
[46]
Finally, I have to deal with respondent’s contention that the
arbitrator’s conduct led it to
believe that he was biased.
Respondent has the onus of establishing a reasonable apprehension of
bias. It has often been stressed
by our courts that the threshold for
a finding of real or perceived bias is high. See
South
African Commercial Catering
and
Allied Workers Union & Others v Irvin and Johnson Ltd
(Seafoods
Division Fish Processing)
[2000] ZACC 10
;
2000
(3) SA 705
(CC) at para 15. In my view, respondent has, for the
reasons already furnished, not even closely succeeded in discharging
this
onus.
[47]
It should be borne in mind that at no stage during an arbitration
which had run for 33 days, was there any
suggestion of bias on the
part of the arbitrator. This, while during the arbitration, the
arbitrator had made various interim rulings
in favour and against
both parties. It is worthwhile, in this regard, to repeat the
following sentiments expressed by Blieden J,
in
Coop
and Others v SA
Broadcasting
Corporation and Others
2006 (2) SA 212
(W) at 217B-D, which apply with equal force in
arbitration proceedings:
“
A
trial is a living phenomenon. It has a life of its own that changes
from day to day if not from hour to hour. The Judge in his
efforts to
come to a just and proper decision is enjoined to participate in this
phenomenon. Because he at one time adopts a provisional
prima facie
view, does not in any way demonstrate bias one way or the other. It
is the duty of every judicial officer to be an
active participant in
the trial. It is the duty of counsel and attorneys to explain this to
their clients who are not experienced
in the rough and tumble world
of court litigation. Because my body language at some stage or other
indicates my admitted irritation
or impatience, this is because of
the way the proceedings are being conducted and cannot be construed
as bias in favour of one
or other of the litigants and most certainly
cannot lead any reasonable informed layman, duly advised by his legal
advisors as
already mentioned, to come to the conclusion that I will
not impartially and fairly determine the issues in this case to the
best
of my ability.”
[48]
In the result, I conclude that the appeal should succeed with costs,
including the costs of two counsel.
In addition, I would set aside
the order of the court
a
quo
and substitute the following therefor:
“
The
application is dismissed with costs, including the costs of two
counsel.”
[49]
However, as this is a minority judgment, no order is made.
______________
P
B Fourie, J