IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Coram: ERASMUS. FOURIE et LE GRANGE, 33
REPORTABLE

CaseNo: A590/09
In the matter between:

and

JUDGMENT DELIVERED: 19 MAY 2010

[1] I had the opportunity of reading the judgment of my learned brother Fourie, J. It is correct as articulated in his judgment that in adjudicating the appeal, a distinction should be drawn between an arbitral award and a procedural ruling made in the course of arbitration. I also agree with Fourie, J's finding that the order made by the arbitrator on 7 April 2008 amounted to no more than an interlocutory procedural ruling and that our common law, and not section 33 of the Arbitration Act, dictates the approach in dealing with an application for the setting aside of an interlocutory procedural ruling.

[2] Regrettably, I am constrained for the reasons stated herein, to disagree with Fourie, J's conclusion that the Respondent has failed to show the conduct of the arbitrator on 7 April 2008, considered against the factual matrix and circumstances underpinning this matter as well as the applicable legal principles and read with the rules of the Arbitration Forum, does not constitute a reviewable irregularity in the proceedings.

"... First Respondent never allowed Applicant's counsel an opportunity to present his argument on the merits or even fully to respond to the constitutional issue raised by First Respondent himself. None of the parties raised the issue on the application papers and Applicant certainly never raised or dealt with the issue in its argument. In fact First Respondent had not heard any argument at all from Du Preez's counsel but simply summarily and totally unexpected dismissed the application without allowing Applicant's counsel an opportunity to present his full argument."

[5] The Appellant, in its replying papers, responded as follows to these allegations:-

"9.54 I did not share the alarm of the Deponent and neither did my counsel. It was in fact my firm view and that of my counsel, that Application was rightly refused. The only alarm and surprise which I expressed during the course of argument was in respect of Applicant's counsel's failure to readily accept the proposition put by First Respondent at the outset of argument relating the constitutionality or otherwise of the relief sought.

9.55 In my respectful submission, First Respondent conducted himself appropriately in the proceedings and refused an application which was ill considered. The suggestion by the Deponent that inasmuch as the constitutional question had not been raised on the papers and therefore it was inappropriate for First Respondent to raise same, is absurd. It is trite that any aspect of law can be argued without reference thereto in papers before a  Court or forum."
[6] On a proper reading of the Appellant's papers, it is not in dispute that the Respondent's counsel was denied an opportunity to properly respond to the constitutional issue raised by the arbitrator and to present his argument on the merits. The Arbitrator, who abides by the decision of this Court, also does not take issue with these allegations.

[10] In my view, from the material facts underpinning this matter the arbitrator, despite his robust and investigative approach, failed to afford the Respondent a fair opportunity to properly and adequately present its case. In view of the history of this matter and the fact that the main issue in the arbitration is whether Du Preez has developed a psychiatric disorder (psychosis) as a consequence of the injuries sustained by him, the proper approach should have been to afford counsel of both parties a just and fair hearing. In this instance, even the claimant was not afforded an opportunity to present its case. This conduct on the part of the arbitrator exceeded the boundaries of robust debate and was manifestly unfair. This amounts to nothing less than extraordinary and exceptional circumstances that justify intervention.
[11] The fact that the Respondent did not specifically mention the wording that exceptional circumstances exist in their papers that justifies intervention, do not detract from the substratum of the Respondent's complaint.

"Where a losing party complains that the reference has not been conducted in a fair and proper manner, it is almost invariable for him to claim in the alternative that the award should be set aside in whole or in part, or that it should be remitted to the arbitrator for further consideration; and even if setting aside alone is claimed, the Court will always consider of its own accord whether the remission would not be an appropriate remedy".

[16] Even though, the above-mentioned cases dealt with an award, I can see no reason why it could not apply to procedural rulings in arbitrations.

[17] I have considered the referral of this matter to commence afresh before another arbitrator. However, having regard to the history of this matter, the prohibitive costs and the fact that the arbitrator on a previous occasion made a similar order compelling Du Preez to submit to an assessment by Dr Hugo, I am of the view that justice will better be served if the matter is remitted to the arbitrator to afford counsel a proper hearing in respect of the application launched by the Respondent.

[19]   In the result the following order is proposed:-

b)	The matter is remitted to the arbitrator to afford the legal representatives of both parties a fair and proper hearing in respect of the application, compelling Du Preez to submit to the assessment by Dr Paneri-Peter;
c)         Costs to stand over for later determination.

LE GRANGE
I agree. It is so ordered.