Buildcure CC v Brews and Others (A5015/2016) [2017] ZAGPJHC 187; [2017] 3 All SA 843 (GJ); 2017 (6) SA 562 (GJ) (20 June 2017)

Buildcure CC v Brews and Others (A5015/2016) [2017] ZAGPJHC 187; [2017] 3 All SA 843 (GJ); 2017 (6) SA 562 (GJ) (20 June 2017)

Section 25 of the Arbitration Act 42 of 1965 is not peremptory and may be varied by agreement between the parties. In this case, the parties agreed that the arbitrator would furnish signed hard copies of the award to each party, dispensing with the need for a formal delivery in their presence. The arbitrator complied with this agreement by hand-delivering the award to all parties on the same day, thereby validly publishing the award. The appellant's challenge to the validity of the award on procedural grounds fails. Regarding the alleged gross irregularity, the arbitrator's reasoning did not introduce a new issue but rather addressed the lawfulness of the cancellation, which was the...

Citation
[2017] ZAGPJHC 187
Parties
Appellant: Buildcure CC; Respondent: Brews, Gordon Donald N.O.; Respondent: Unterhalter, Glenn N.O.; Respondent: Drue, Warren N.O.; Respondent: Litvin, Lois N.O.; Respondent: Massey, Euan
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 June 2017
Case Number
A5015/2016
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Review Application of Arbitration Award
Outcome
Appeal dismissed with costs.
Judges
Sutherland, Moshidi, Nicholls
Legal Topics
Arbitration Act 42 of 1965, Variation of Statutory Procedure, Gross Irregularity, Contract Cancellation, Audi Alterem Partem, Interpretation of Contracts
Civil Procedure Commercial and Corporate Alternative Dispute Resolution Arbitration Act 42 of 1965 Variation of Statutory Procedure Gross Irregularity Contract Cancellation Audi Alterem Partem +1 more

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Parties

Buildcure CC

Appellant

Brews, Gordon Donald N.O.

Respondent

Unterhalter, Glenn N.O.

Respondent

Drue, Warren N.O.

Respondent

Litvin, Lois N.O.

Respondent

Massey, Euan

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Review Application of Arbitration Award

Legal Issues

  1. 1 Whether section 25 of the Arbitration Act 42 of 1965 prescribes a peremptory procedure for delivery of arbitration awards or is subject to variation by agreement.
  2. 2 Whether the arbitrator's hand-delivery of the award complied with the parties' agreement and constituted valid publication.
  3. 3 Whether the arbitrator committed a gross irregularity by deciding an issue without hearing the appellant, violating the audi alterem partem principle.

Ratio Decidendi

Section 25 of the Arbitration Act 42 of 1965 is not peremptory and may be varied by agreement between the parties. In this case, the parties agreed that the arbitrator would furnish signed hard copies of the award to each party, dispensing with the need for a formal delivery in their presence. The arbitrator complied with this agreement by hand-delivering the award to all parties on the same day, thereby validly publishing the award. The appellant's challenge to the validity of the award on procedural grounds fails. Regarding the alleged gross irregularity, the arbitrator's reasoning did not introduce a new issue but rather addressed the lawfulness of the cancellation, which was the...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the costs of the appeal.