B v B (45681/13) [2014] ZAGPJHC 321 (25 September 2014)

B v B (45681/13) [2014] ZAGPJHC 321 (25 September 2014)

The court held that the dispute referred to arbitration was not prohibited under section 2 of the Arbitration Act, as it was a delictual claim for damages arising from alleged fraudulent or negligent non-disclosure, not a claim incidental to a live matrimonial cause. The proprietary consequences of the marriage had already been resolved by settlement and court order. The assessment date for accrual, as used by the arbitrators, even if incorrect, did not amount to a gross irregularity or a misconception of the nature of the inquiry; it was at most an error of law, which is not reviewable under section 33 of the Arbitration Act. The application to set aside the arbitration appeal award was...

Citation
[2014] ZAGPJHC 321
Parties
Applicant: B…….. A……. C……; Respondent: B………… J……..
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 September 2014
Case Number
45681/13
Procedural Posture
Review Application / Application to Set Aside Arbitration Appeal Award
Outcome
Application dismissed with costs; patent error in the award referred back for correction.
Judges
Nicholls
Legal Topics
Arbitration Act Section 2, Matrimonial Property Act Accrual, Delictual Non Disclosure, Arbitration Award Review, Misrepresentation, Quantification of Damages
Civil Procedure Family and Children Alternative Dispute Resolution Arbitration Act Section 2 Matrimonial Property Act Accrual Delictual Non Disclosure Arbitration Award Review Misrepresentation +1 more

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Parties

B…….. A……. C……

Applicant

B………… J……..

Respondent

Procedural Posture

Review Application / Application to Set Aside Arbitration Appeal Award

Legal Issues

  1. 1 Whether the dispute referred to arbitration was prohibited as being incidental to a matrimonial cause under section 2 of the Arbitration Act.
  2. 2 Whether the arbitration appeal tribunal misconceived the nature of the inquiry by assessing accrual at the date of divorce instead of litis contestatio.
  3. 3 Whether a patent error in the award justified remittal for correction.

Ratio Decidendi

The court held that the dispute referred to arbitration was not prohibited under section 2 of the Arbitration Act, as it was a delictual claim for damages arising from alleged fraudulent or negligent non-disclosure, not a claim incidental to a live matrimonial cause. The proprietary consequences of the marriage had already been resolved by settlement and court order. The assessment date for accrual, as used by the arbitrators, even if incorrect, did not amount to a gross irregularity or a misconception of the nature of the inquiry; it was at most an error of law, which is not reviewable under section 33 of the Arbitration Act. The application to set aside the arbitration appeal award was...

Court Disposition

Application dismissed with costs; patent error in the award referred back for correction.

Orders

  • The application is dismissed with costs.
  • Paragraph 87 of the award of the arbitration appeal tribunal is referred back to the arbitration appeal tribunal for correction.