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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Numbers: 65379/2020

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

CLOSE-UP MINING (PTY) LTD                                                             First Applicant

WILLEM PIETER TENNER                                                               Second Applicant

CLOSE-UP MACHINERY AND PLANT HIRE (PTY) LTD                    Third Applicant

and

THE ARBITTRATOR, JUDGE PHILIP BORUCHOWITZ                  First Respondent

LUTZKIE GROUP OF COMPANIES (PTY) LTD                          Second Respondent

 

AND

Case Numbers: 64224/2020

LUTZKIE GROUP OF COMPANIES (PTY) LTD                                            Applicant

REG NO. 2016/240321-07

and

CLOSE-UP MINING (PTY) LTD                                                         First Respondent

REG NO. 2007/017543/07

WILLEM PIETER TENNER                                                          Second Respondent

ID NO: [...]

CLOSE-UP MACHINERY AND PLANT HIRE (PTY) LTD                Third Respondent

REG NO. 2008/028672/07

 

JUDGMENT

RAULINGA J

INTRODUCTION

1.   The parties entered into agreements headed “Binding Term Sheet 1” (“Terms Sheet 1”) and “Binding Term Sheet 2” (“Terms Sheet 2”) which were concluded on 5 December 2019. In terms of both agreements more specifically clause 5.5 thereof the agreements are inextricably linked and indivisible from each other.

2.   These agreements further contain a provisor :

“Save to the extent to the contrary provided for in this Term Sheet, any dispute arising out of or in connection with this Term Sheet shall be decided by arbitration to be held in Sandton and shall be dealt with by AFSA (the Arbitration Foundation of South Africa).”

3.   The parties subjected themselves to an arbitration which resulted in an award dated 18 November 2020. The following award stemmed from the arbitration proceedings:

“ 1.   Term Sheets 1 and 2 are hereby rectified to correctly reflect the name of “Close-Up Plant and Machinery (Pty) Limited (Registration Number 2008/028672/07)” as “Close-UP Machinery and Plant Hire (Pty) Limited (Registration Number 2008/028673/07).

2.      It is declared that the defendants’ purported cancellation of Term Sheets 1 and 2 is of no force or effect.

3.      The claimant is directed to make payment to the second defendant of the amount of R 16 million in terms of Term Sheet 2.

4.      The claimant is directed to give and irrevocable and unconditional payment direction to the second defendant to make payment to the first defendant in respect of the purchase price due by the claimant to the first defendant in terms of Term Sheet 1.

5.      It is declared that, subject to compliance by the claimant with the order as set out in paragraph three above, that the payment of R 16 million due by the claimant to the first defendant in terms of Term Sheet 1 has been affected by set-off.

6.      It is declared that the claimant shall be liable for the liabilities of the first defendant as at 27 January 2020 in a sum not exceeding an aggregated amount of R 34 million in respect of the claims of the following creditors, such to specifically include all claims attaching to and/or secured by the immovable property of the third defendant:

Investec Bond

ABSA Bond

Standard Bank Bond

Merchant West Finance (ROP’s)

Bell (ROP’s)

PAYE

Leave pay provisions.

7.     It is declared that the first defendant is liable for all other liabilities other than those specified in paragraph 6 above.

8.     The second defendant is directed to forthwith do all such things, take all such steps and sign all such documents as may be requisite and necessary to effect transfer to the claimant of the shares in the first defendant, and of his right, interest, benefits and claims of whatsoever nature against the first defendant, which includes the second defendant’s credit loan accounts in the first defendant.

9.     The third defendant is directed to forthwith do all such things, take all such steps and sign all such documents as may be requisite and necessary to effect transfer to the claimant of immovable property owned by it and located at 18 Dolerite Crescent, Middleburg.

10.    In the event that the second and third defendants fail and/or refuse to comply with paragraphs 8 and nine above, then the Sheriff be and is hereby authorised and directed to do all such things, take all such steps and sign all such documents as may be requisite and necessary to give effect thereto.

11.   The Defendants shall pay the costs of the arbitration, including, but not limited to, the claimant’s costs of arbitration, the cost of the arbitrator, venue, transcribing services and other related arbitration costs, including the cost occasioned by the employment of senior counsel. The costs shall be paid by the defendants jointly and severally, the one paying, the others to be absolved.”

4.   It is the aforesaid award and reasons enunciated by the Arbitrator that comes under scrutiny and which forms the premise upon which relief is sought under s 33 (1) and S 31 of the Arbitration Act, Act 42 of 1965 (“Arbitration Act”) respectively.

5.   For the ease of reference parties will be referred to as in the Review Application under case number: 65379/20. The second application under case number: 64224 /20 bears reference to the award being made an order of Court.

6.   The First Respondent, the Arbitrator filed a notice to abide by the Court’s decision on 12 January 2021.

ISSUES FOR DETERMINATION BY THE COURT

7.   The parties as required by the practice directive caused a joint practice note to be filed wherein the issues that are up for determination, are clearly identified:

7.1.   Second respondent’s application for condonation for the late filing of its answering affidavit.

7.2.   The application to admit the additional affidavit of second respondent’s erstwhile attorney, Mr M Maharaj.

7.3.   Applicants’ application to admit a supplementary founding affidavit.

7.4.   In respect of the merits of the review application, and inasmuch as the first respondent held that he was not vested with a discretion to consider issues not raised in the pleadings, and he consequently did not consider:

7.4.1.    whether repudiation should be considered as a ground for cancellation; and

7.4.2.    the merits of applicants’ counsel’s submission in repudiation;

the first respondent was wrong and misconceived his duties, resulting in the applicants not having a fair hearing.

7.5.   If it is found that the first respondent misconceived his duties, whether the failure to consider recreation as a ground for cancellation resulted in the first respondent committing a gross irregularity as envisaged in section 33(1) of the Arbitration Act.

7.6.   Whether the Honourable Court should exercise its discretion in the second respondent’s favour, to make the award an order of Court, in the event that it is found that the first respondent did not commit a gross irregularity.

8.   Resultant, the Court has to decide these two main applications and three interlocutory applications as outlined above.

Second respondent’s application for condonation for the late filing of its answering affidavit.

9.   At the hearing of this application, counsel on behalf of the parties agreed that condonation for the late filing of the second respondent’s answering affidavit be granted. The application was accordingly granted.

The application to admit the additional affidavit of second respondent’s erstwhile attorney, Mr M Maharaj. / Applicant’s application to admit a supplementary founding affidavit.

10.   The applicants had in their supplementary heads of argument intimated that application would be made in terms of Uniform Rules 6(5)(e) at the hearing of 4 October 2021. The application was by agreement between the parties granted at the hearing of the application.

THE STRIKING OUT APPLICATION

11.   In view of the fact that the applicants have abandoned reliance on misconduct and bias, the striking out application falls out.

REVIEW APPLICATION IN TERMS OF S33(1) OF THE ACT

12.   The rights of a party to an arbitration to have the tribunal’s award set aside are and always have been severely limited and the statutory grounds for setting aside are exhaustive. The court will always be most reluctant to interfere with the award of an arbitrator, as the parties have chosen to go to arbitration instead of resorting to the court; they selected their tribunal and they agreed that the award of that tribunal would be final and binding. They cannot then be heard to object to the award except on very limited grounds. Moreover, in order to achieve the goals of private arbitration, the Constitution requires a court to construe the statutory grounds for setting aside an award reasonably strictly in the context of private arbitration.

13.   S 33(1) of the Act , Setting aside of award.—(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.

14.   In the matter at hand applicants place reliance on s 33(1)(b) of the Act.

15.   In the unreported judgement of Beukes v Ten Four Consulting and Others (570/2020) [2021] ZASCA 83 (17 June 2021) it was held that:

“The principle of finality of an arbitration award is well-settled in our law. When an arbitrator has given fair consideration to a matter submitted to him or her for decision, unless there has been some wrongful or improper conduct on the part of the arbitrator, a bona fide mistake either of law or fact made by the arbitrator does not constitute misconduct or a gross irregularity as envisaged in s 33(1)(a) or (b) of the Act. In Telcordia Technologies Inc v Telkom SA Ltd [2006] ZASCA 112; 2007 (3) SA 266 (SCA) para 75 this Court affirmed the Doyle v Shenker (Doyle v Shenker & Co Ltd  1915 AD 233) principle namely that where a legal issue is left for the decision of a functionary – as in this case – any complaint about how he reached his decision must be directed at the method or conduct of the proceedings, not the result. (own emphasis).

16.   In Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews & Another 2009 (4) SA 529 (CC) it was held that:

“[235]   To return then to the question of the proper interpretation of s 33(1) of the Arbitration Act in the light of the Constitution. Given the approach not only in the United Kingdom (an open and democratic society within the contemplation of s 39(2) of our Constitution), but also the international law approach as evinced in the New York Convention (to which South Africa is a party) and the UNCITRAL Model Law, it seems to me that the values of our Constitution will not necessarily best be served by interpreting s 33(1) in a manner that enhances the power of courts to set aside private arbitration awards. Indeed, the contrary seems to be the case. The international and comparative law considered in this judgment suggests that courts should be careful not to undermine the achievement of the goals of private arbitration by enlarging their powers of scrutiny imprudently. Section 33(1) provides three grounds for setting aside an arbitration award: misconduct by an arbitrator; gross irregularity in the conduct of the proceedings; and the fact that an award has been improperly obtained. In my view, and in the light of the reasoning in the previous paragraphs, the Constitution would require a court to construe these grounds reasonably strictly in relation to private arbitration. (own emphasis)

[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. Thirdly, the process to be followed should be discerned in the first place from the terms of the arbitration agreement itself. 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 s 33(1), the goals of private arbitration may well be defeated.” (own emphasis)

17.   In Telcordia Technologies Inc v Telkom SA Ltd [2006] ZASCA 112; 2007 (3) SA 266 (SCA) it was held that:

“[85] The fact that the arbitrator may have either misinterpreted the agreement, failed to apply South African law correctly, or had regard to inadmissible evidence does not mean that he misconceived the nature of the inquiry or his duties in connection therewith. It only means that he erred in the performance of his duties. An arbitrator 'has the right to be wrong' on the merits of the case, and it is a perversion of language and logic to label mistakes of this kind as a misconception of the nature of the inquiry - they may be misconceptions about meaning, law or the admissibility of evidence but that is a far cry from saying that they constitute a misconception of the nature of the inquiry. To adapt the quoted words of Hoexter JA: it cannot be said that the wrong interpretation of the Integrated Agreement prevented the arbitrator from fulfilling his agreed function or from considering the matter left to him for decision. On the contrary, in interpreting the Integrated Agreement the arbitrator was actually fulfilling the function assigned to him by the parties, and it follows that the wrong interpretation of the Integrated Agreement could not afford any ground for review by a court.” (own emphasis).

(A)  In the final analysis, the question to be asked is whether the adjudicator’s determination is binding on the parties. In my view, the adjudicator confined himself to a determination of the issues that were placed before him by the parties. Consequently, the parties are bound by his determination, notwithstanding that he may have fallen into an error- See in this regard Framatome V Eskom Holdings SOC Limited (357/2021) [2021] ZASCA 132 (1 October 2021) at para 29.

18.   As set out earlier in this judgement, applicants no longer rely on bias and misconduct for the purposes of review, they have narrowed down the grounds upon which the Court must adjudicate their application. In reiteration, they now rely upon the Court to deal with the findings of the arbitrator in respect of cancellation in a different context, in support of their allegation to gross irregularity and an alleged gross irregularity, exceeding of power as review grounds.

19.   The first respondent’s findings in respect of cancellation are recorded in paragraphs 13 -24 under the heading Cancelation which are:

19.1.         “It is convenient at this stage to dispose of the defendants’ contention that the term sheets were validly cancelled in 1 January 2020.

19.2.         The term sheets are silent in regard to cancellation. The breach clauses in clause 7 of Term Sheet 1 and clause 4 of Term Sheet 2 provide that if either party breaches any of the provisions of the agreement and fails to remedy such breach within fourteen calendar days of written notice requiring it to do so, then the aggrieved party shall be entitled to claim specific performance.

19.3.         The defendants argue that the breach clauses simply place an obligation on an aggrieved party should it wish to enforce specific performance to give fourteen days’ notice. The agreement does not preclude a party from electing to cancel the agreement.

19.4.         Whether this proposition is correct depends on a proper construction of the breach clauses. The purpose of the giving of notice is to afford the breaching party an opportunity to purge his default. It is difficult to understand why such notice is only required before invoking the remedy of specific performance but not weak cancellation is sort. This is an insensible interpretation.

19.5.         Contractual termination rights generally operate in addition to common law rights of termination. The courts have held that any exclusion of common-law remedies must be clearly and unambiguously expressed. In the English case of Gilbert-Ash (Northem) Limited v Modern Engineering (Bristol) Limited [1974] AC 689 at 717H it was observed that there is a presumption that neither party to a contract intends to abandon any additional common-law remedies for its breach, and that clear words are required to exclude or limit such rights.

19.6.         The breach clauses are couched in clear and unambiguous terms, and there is no indication that a remedy other than specific performance is claimable. The inference to be drawn therefrom is that the remedy of cancellation was impliedly excluded – expression unius est exclusion alterius. Compare, in this regard, Gentiruco AG v Firestone SA (Pty) Limited 1972 (1) SA (A) at 602E-F.

19.7.         What I have set out above would not apply in circumstances where a party repudiates the term sheets. It is settled law that if any party by its conduct has evinced a clear intention not to perform its obligations under an agreement, the aggrieved party has the right to accept the repudiation, thereby terminating the agreement (see Tucker’s Land and Development Corp (Pty) Ltd v Hovis 1980 (1) SA 645A at 665D-E; Culverwell and Another v Brown 1990 (1) SA 7 (A) at 16I-17A; Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2000] ZASCA 82; 2001 (2) SA 284 SCA at 294 H-I and Metalmil (Pty) Ltd v AECI Explosives & Chemicals Ltd [1994] ZASCA 96; 1994 (3) SA 673 (A) at 684-685B).

19.8.         Repudiation has not been pleaded or issuably raised by the defendants. The pleaded case is that the claimant had breached the term sheets by failing to make payment. If the defendants wished to rely on non-payment as an act of the repudiation they should have alleged and proved that in the circumstances the failure to pay, objectively viewed, exhibited a deliberate and unequivocal intention not to be bound by the term sheets. (Schlinkmann v Van der Walt and Others 1947 (2) SA 900 at 919 and cases there sited). This required that grounds and circumstances necessary to establish the repudiation be pleaded so as to for the opposite party a proper opportunity to deal therewith.

19.9.         The defendants’ contention that the claimants alleged breach constituted repudiation of the term sheets, was raised for the first time in argument.

19.10.       As these are arbitration proceedings, I have no jurisdiction to decide matters that are not pleaded, especially where, as in the present case, the parties have expressly defined and limited to the issues to the matters pleaded (see Hos+ Medical Aid Scheme v Thebe Ya Bophelo Healthcare and Marketing & Consulting (Pty) Ltd [2007] ZASCA 163; 2008 (2) SA 608 (SCA) para 30). Nor am I entitled to destroy beyond the pleadings, even where the issues may have been traversed in evidence ( see Hos+ Medical (supra) para 31 and the reference thereto to Shill v Milner 1937 AD 101 at 105).

19.11.       For these reasons the defendants’ contention that the term sheets have been validly cancelled cannot be sustained.

19.12.       It is accordingly unnecessary to resolve the disputed factual and legal questions relating to the claimant’s s alleged breach of Term Sheet two.”

20.   The applicants although disagreeing with the Arbitrator’s finding that the breach clauses of Term Sheet 1 and Term Sheet 2, properly interpreted, do not provide for a remedy of cancellation pursuant to breach and concede that the court cannot found a review of his award based on gross irregularity in this regard.

21.   The Arbitrator’s conclusion summarized above forms the subject matter of the applicants’ complaint. The question is did the Arbitrator misconceive the nature of the enquiry, i.e. misconceived his mandate, or his duties in connection therewith?

22.   It is evident from the award, more specifically paragraph 21 thereof, that the repudiation although not specifically pleaded was raised by the applicants’ counsel during argument.

23.   Repudiation was described as follows by Corbett JA in Nash v Golden Dumps (Pty) Ltd 1985 (3) SA 1 (A) at 22D-F:

“Where one party to a contract, without lawful grounds, indicates to the other party in words or by conduct a deliberate and unequivocal intention no longer to be bound by the contract, he said to “repudiate” the contract … Where that happens, the other party to the contract may elect to accept the repudiation and resent the contract. If he does so, the contract comes to an end upon communication of his acceptance of repudiation and rescission to the party who has repudiated …”

Datacolor International (Pty) Ltd v Intamarket (Pty Ltd [2000] ZASCA 82; 2001 (2) SA 284 (SCA) Nienaber JA, after referring with approval to Nash explained to repudiation as follows:

“[16] … At the same time this Court has repeatedly stated that the test for repudiation is not subjective but objective … Conceivably it could therefore happen that one party, in truth intending to repudiate (as he later confesses), expresses himself so inconclusively that he is afterwards held not to have done so; conversely, that this conduct may justify the inference that he did propose to perform even though he can afterwards demonstrate his good faith and his best intentions at the time. The emphasis is not on the repudiating party’s state of mind, in what is subjectively intended, but in what someone in the position of the innocent party would think he intended to do; repudiation is accordingly not a matter of intention, it is a matter of perception. The perception is that of a reasonable person placed in the position of the aggrieved party. The test is whether such a notional reasonable person would conclude that proper performance (in accordance with true interpretation of the agreement) will not be forthcoming. The inferred intention accordingly serves as the criterion for determining the nature of the threatened actual breach.”

24.   Premised on the aforesaid decisions, applicants contended and with reference to the obligation of the lender, the failure of the second respondent to advance the loan on the effective date, the refusal by Lutzkie to advance the loan contrary to the express provisions, the letter of cancelation, all constitute the evidence that could possibly have been relevant to the issue of repudiation which was adduced at the arbitral hearing.

25.   Applicants, further argued that the arbitrator in casu was vested with the same powers and discretion as a Judge sitting in a Court premised on their interpretation of Clauses 5.4 of the Term Sheets and the interpretation of the AFSA (the Arbitration Foundation of South Africa) rules. It is further argued that the arbitrator, in an arbitration governed by these rules, has the widest discretion and power allowed by law to ensure the just, expeditious, economical and final determination of all disputes raised in the proceedings. Applicants therefore contend that the rules which the parties agreed to, contain a provisor which entitles the Arbitrator to go beyond the pleadings and exercise the same discretion as a Judge sitting in Court.

26.   I do not share the same view and find that :

26.1.    The “… Widest discretion and powers allowed by law …” in the AFSA rules quoted by the applicant refer to the law applicable to Arbitrators and not broadly to those applicable to judges sitting in court proceedings, where the Courts are governed by their own inherent jurisdiction. The discretion of an arbitrator is not as wide as that of a judge sitting in court proceedings.

26.2.    The fact that the same rule specifically refers to discretion in the context of “ … disputes raised in the proceedings …” does not mean any disputes raised in any manner whatsoever. It obviously means disputes raised in the pleadings or as may be expressly defined and limited by the parties, in accordance with applicable legal principles.

26.3.    The sum total of evidence relevant to consider repudiation was not raised or sufficiently canvassed and the second respondent will be prejudiced in the absence of an afforded opportunity to address the same. Repudiation per se was not traversed in evidence. Repudiation may overlap with cancellation but is by no means identical.

26.4.    The Arbitrator would have exceeded its jurisdiction if it decided the matter on a premise not covered by the pleadings. See Hos + Med Medical Aid Scheme v Thembe Ya Bophelo Healthcare Marketing & Consulting (Pty) Ltd supra at pars 32 35.

26.5.    By the applicants own admission repudiation was only raised after all the evidence had been concluded and both sides had closed their respective cases. It is prudent to take cognizance of the fact that the applicants made no endeavour to amend the pleadings before argument and/or the award. Had the applicants felt so strong about the aspect that the necessary grounds had been covered and explored, why did they fail to present an opportunity to the Arbitrator to decide the point. This would have been an apparent consideration suited for the Arbitrator. Then the pleadings might have provided for the repudiation. The arbitrator was never afforded an opportunity to decide this question which in my view ought to have been placed in front of him.

26.6.    In any event, the timing of and the manner in which the applicants raised the question of repudiation was such that the “ … departure would cause prejudice or would prevent full inquiry …” as held by the court in Shill v Milner 1937 AD 101 at 105.

26.7.    I cannot find fault with the method employed by the Arbitrator. Regard being had to what I mentioned above, he should not have considered repudiation as a ground for cancellation. There was no misconception of the decision-maker in respect of its mandate. He laboured upon the correct assumption that he is not vested with jurisdiction to consider the defence of repudiation and therefor it does not follow that he misconceived the nature of the enquiry or the duties in connection with the arbitral hearing and flowing from this his conduct does not constitute a gross irregularity as contemplated in s 33(1)(b) of the Act. He further did not prevent a fair trial which constituted a gross irregularity as contemplated in s 33(1)(b).

26.8.    The Arbitrator did not err, but in any event, a bona fide mistake either of law or fact made by the arbitrator does not constitute misconduct or a gross irregularity as envisaged in s 33(1) (b) of the Act. A wrong interpretation of the agreement also did not entail the arbitrator's exceeding his powers.

26.9.    Therefore, it is held that the Arbitrator’s approach to and his conclusion on the repudiation issue was correct.

27.   In casu, Mr Tenner was included in the award, the Arbitrator did not exceed his powers as contemplated in s33(1)(b) -See Lawsa 143 It is important to distinguish between a situation where the arbitral tribunal *purports to exercise a power which it does not have and where it erroneously exercises a power that it does have.4The latter situation is not a basis for setting aside the award on the ground under exceeding of power. The Arbitrator did not exceed his powers as alleged or at all. The Second Applicant was cited as a party to the proceedings. Most importantly as included as a party to the agreements Term Sheets 1 and 2 therefore, the allegations levelled against the Arbitrator that he exceeded his powers including the Second Applicant in the award is incorrect.

28.   Accordingly, the application must also fail on the aspect of exceeding his powers, the Arbitrator did not exceed his powers as contemplated in s33(1)(b).

29.   Applicants commit exactly such a perversion of language and logic seeking to label what it perceives as mistakes by the Arbitrator, as a misconception of the nature of the inquiry or of the Arbitrator allegedly exceeding his power. See Telcordia Technologies Inc v Telkom SA Ltd supra at 85.

AWARD DATED 18 NOVEMBER 2020 TO BE MADE AN ORDER OF COURT APPLICATION

30.   In the absence of voluntary compliance with the award by the losing party, the successful party can apply to court to have the award enforced. See The Law of South Africa (“LAWSA”)Vol 2- Third Edition par 137. The party applying accepts the onus of proving that it has an award in its favour that can properly be made an order of court. See Vidavisky v Body Corporate of Sunhill Villas 2005 5 SA 200 (SCA) 208B–C. In considering an application, the court is not concerned with possible errors of fact and law by the tribunal in making the award, but only with the propriety of enforcing the award. See Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd 2015 (4) SA 34 (SCA).The court thus strikes a balance between party autonomy and judicial intervention in a way that gives considerable weight to party autonomy. See Newlands Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic supra and Telcordia Technologies Inc v Telkom SA Ltd supra.

31.   Where there is on the face of it a valid award, the award is enforceable and the party resisting enforcement will have to bring an application timeously for setting aside or remittal of the award. As in casu. LAWSA supra at 137.

32.   Before making the award an order of court, the court may correct any clerical mistake or patent error arising from any accidental slip or omission. See Northpark Construction v Burnett 1998 JDR 0841 (W) 4–5. Even if a divisable portion of the arbitrator’s award is void and not made an order of court, the valid portion can be enforced. See Cone Textile (Pvt) Ltd v Ayres 1980 4 SA 728 (ZA) 736F.

33.   Having regard to the abovementioned principles enunciated in the above quoted authorities, and having regard to the arguments, including the facts relating thereto, I make an allocation of costs premised on the material at my disposal.

34.   For the abovementioned reasons, I make the following order:

34.1.    Condonation is granted to the second respondent for the late filing of its answering affidavit;

34.2.    Leave is granted to the applicant to file a supplementary affidavit of Pieter Willem Tenner dated 20 July 2021;

34.3.    The main application as contained in the applicant’s notice of motion dated 8 December 2020, is dismissed with costs, inclusive of the costs consequent upon the employment of two counsel.

IN CASE NUMBER 64224/2020

34.4.    The award of the Arbitrator, the Honourable Mr Justice Boruchowitz (retired Judge of the High Court) dated 19 November 2020 is hereby made an order of court in terms of section 31 (1) of the Arbitration Act, Act 42 0f 1965.

34.5.    The first, second and third Respondents are ordered to pay the costs of that application, jointly and severally, the one paying the other to be absolved, inclusive of the costs consequent upon the employment of two counsel.

T J RAULINGA

JUDGE OF THE GAUTENG DIVISION,

PRETORIA

APPEARANCES:

For the Applicants:                          Adv. BH Swart SC

                                                              Adv. J Swanepoel

Instructed by:                                  Alice Swanepoel Attorneys

For the Second Respondents:        Adv. P Ellis SC

                                                              Adv. E Botha

Instructed by:                                  Gothe Attorneys Inc.

 

Date of Hearing:                              4 October 2021

Date of Judgment:                           29 October 2021

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