Calligeris N.O. and Another v Parker N.O. and Another (7937/2017) [2018] ZAWCHC 35 (22 March 2018)

Calligeris N.O. and Another v Parker N.O. and Another (7937/2017) [2018] ZAWCHC 35 (22 March 2018)

The court found that the arbitrator failed to apply his own mind to the dispute, merely reproducing the Claimant's heads of argument without engaging with the Trustees' submissions or defences. This conduct constituted misconduct under Section 33(1)(a) of the Arbitration Act and gross irregularity under Section 33(1)(b), as it prevented a fair trial of the issues and demonstrated partiality. The arbitrator's excessive delay in delivering the award, without good cause, further violated Management Rule 71(6) and Section 23(a) of the Arbitration Act. The court also held that the arbitrator's conduct infringed the Trustees' right to a fair hearing under Section 34 of the Constitution....

Citation
[2018] ZAWCHC 35
Parties
Applicant: MR THEODORE CALLIGERIS N.O.; Applicant: MRS HELEN CALLIGERIS N.O.; Respondent: MR ASHRAF PARKER N.O.; Respondent: TIDES UNIT D (PTY) LTD
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 March 2018
Case Number
7937/2017
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is set aside. The application to make the award an order of court is refused. The Second Respondent is ordered to pay the costs of the application.
Judges
Meer
Legal Topics
Arbitration Award Review, Misconduct of Arbitrator, Gross Irregularity, Delay in Award, Sectional Titles Act, Right to Fair Hearing
Alternative Dispute Resolution Civil Procedure Arbitration Award Review Misconduct of Arbitrator Gross Irregularity Delay in Award Sectional Titles Act Right to Fair Hearing

Case Brief

Summary, issues, holding and outcome

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Parties

MR THEODORE CALLIGERIS N.O.

Applicant

MRS HELEN CALLIGERIS N.O.

Applicant

MR ASHRAF PARKER N.O.

Respondent

TIDES UNIT D (PTY) LTD

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator misconducted himself in relation to his duties under Section 33(1)(a) of the Arbitration Act.
  2. 2 Whether the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings under Section 33(1)(b) of the Arbitration Act.
  3. 3 Whether the delay in delivering the arbitration award justified setting aside the award under Management Rule 71(6) and Section 23(a) of the Arbitration Act.

Ratio Decidendi

The court found that the arbitrator failed to apply his own mind to the dispute, merely reproducing the Claimant's heads of argument without engaging with the Trustees' submissions or defences. This conduct constituted misconduct under Section 33(1)(a) of the Arbitration Act and gross irregularity under Section 33(1)(b), as it prevented a fair trial of the issues and demonstrated partiality. The arbitrator's excessive delay in delivering the award, without good cause, further violated Management Rule 71(6) and Section 23(a) of the Arbitration Act. The court also held that the arbitrator's conduct infringed the Trustees' right to a fair hearing under Section 34 of the Constitution....

Court Disposition

The arbitration award is set aside. The application to make the award an order of court is refused. The Second Respondent is ordered to pay the costs of the application.

Orders

  • The Arbitration Award is set aside.
  • The application for the Arbitration Award to be made an order of Court is refused.