Africa Opportunity Fund LP and Another v Shoprite Holdings Ltd and Another (8543/17) [2018] ZAWCHC 37 (23 March 2018)

Africa Opportunity Fund LP and Another v Shoprite Holdings Ltd and Another (8543/17) [2018] ZAWCHC 37 (23 March 2018)

The Court held that the applicants failed to show good cause for remittal under s 32(2) of the Arbitration Act. The explanation for the late filing was inadequate and did not cover the entire period of delay. The applicants did not act with reasonable diligence, as discrepancies in the schedules could have been identified earlier and enquiries made before or during arbitration. The new evidence was hearsay, lacking confirmatory affidavits and compellable witnesses, and thus inadmissible under the parties' arbitration agreement, which required compliance with ordinary rules of evidence. The applicants' attempt to present a new case based on the arbitrator's findings was impermissible, as...

Citation
[2018] ZAWCHC 37
Parties
Applicant: Africa Opportunity Fund LP; Applicant: Africa Opportunity Cayman Ltd; Respondent: Shoprite Holdings Ltd; Respondent: La Rose-Innes N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 March 2018
Case Number
8543/17
Procedural Posture
Review Application / Application for Remittal of Arbitration Award and Condonation for Late Filing
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
N P Boqwana
Legal Topics
Arbitration Act 1965, Remittal of Award, Condonation, Admissibility of New Evidence, Finality of Arbitration, Shareholder Disputes
Alternative Dispute Resolution Commercial and Corporate Arbitration Act 1965 Remittal of Award Condonation Admissibility of New Evidence Finality of Arbitration Shareholder Disputes

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Parties

Africa Opportunity Fund LP

Applicant

Africa Opportunity Cayman Ltd

Applicant

Shoprite Holdings Ltd

Respondent

La Rose-Innes N.O.

Respondent

Procedural Posture

Review Application / Application for Remittal of Arbitration Award and Condonation for Late Filing

Legal Issues

  1. 1 Whether the late filing of the application for remittal under s 32(2) of the Arbitration Act should be condoned.
  2. 2 Whether the supplementary affidavit should be admitted.
  3. 3 Whether good cause exists to remit the matter to the arbitrator for reconsideration and admission of new evidence regarding the identity of the seller in two share transactions.

Ratio Decidendi

The Court held that the applicants failed to show good cause for remittal under s 32(2) of the Arbitration Act. The explanation for the late filing was inadequate and did not cover the entire period of delay. The applicants did not act with reasonable diligence, as discrepancies in the schedules could have been identified earlier and enquiries made before or during arbitration. The new evidence was hearsay, lacking confirmatory affidavits and compellable witnesses, and thus inadmissible under the parties' arbitration agreement, which required compliance with ordinary rules of evidence. The applicants' attempt to present a new case based on the arbitrator's findings was impermissible, as...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • Condonation application is refused.
  • Application to file applicants' further affidavit is refused.