Certus Projects (Pty) Ltd v Motsogi (12752/2016) [2017] ZAGPJHC 28 (3 February 2017)

Certus Projects (Pty) Ltd v Motsogi (12752/2016) [2017] ZAGPJHC 28 (3 February 2017)

The arbitrator failed to properly consider the respondent's medical certificate and the possibility of standing the matter down for one day to allow the respondent to attend the hearing. This omission constituted a gross irregularity in the conduct of the arbitration proceedings and resulted in a failure of procedural fairness. The right to be heard is fundamental and should not be denied lightly, especially where the prejudice to the applicant from a one-day delay was minimal and could be cured by a costs order. The court found that justice and fairness required the arbitrator to grant a stand down, and in the absence of evidence that this was considered, the award was reviewed and set...

Citation
[2017] ZAGPJHC 28
Parties
Applicant: Certus Projects (Pty) Ltd; Respondent: Mapule Samuel Motsogi
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
3 February 2017
Case Number
12752/2016
Procedural Posture
Review Application / Application and Counter Application for Review and Enforcement of Arbitration Award
Outcome
The application to make the arbitration award an order of court is dismissed. The arbitration award is reviewed and set aside. Condonation for the respondent's late filing is granted. Costs orders are made as specified.
Judges
FHD Van Oosten
Legal Topics
Arbitration Review, Gross Irregularity, Procedural Fairness, Condonation, Costs Award
Civil Procedure Commercial and Corporate Arbitration Review Gross Irregularity Procedural Fairness Condonation Costs Award

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Certus Projects (Pty) Ltd

Applicant

Mapule Samuel Motsogi

Respondent

Procedural Posture

Review Application / Application and Counter Application for Review and Enforcement of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's decision to proceed with the arbitration in the absence of the respondent, who submitted a medical certificate, constituted a gross irregularity.
  2. 2 Whether the arbitration award should be made an order of court or set aside on review.
  3. 3 Whether condonation for the late filing of the respondent's answering affidavit and counter-application should be granted.

Ratio Decidendi

The arbitrator failed to properly consider the respondent's medical certificate and the possibility of standing the matter down for one day to allow the respondent to attend the hearing. This omission constituted a gross irregularity in the conduct of the arbitration proceedings and resulted in a failure of procedural fairness. The right to be heard is fundamental and should not be denied lightly, especially where the prejudice to the applicant from a one-day delay was minimal and could be cured by a costs order. The court found that justice and fairness required the arbitrator to grant a stand down, and in the absence of evidence that this was considered, the award was reviewed and set...

Court Disposition

The application to make the arbitration award an order of court is dismissed. The arbitration award is reviewed and set aside. Condonation for the respondent's late filing is granted. Costs orders are made as specified.

Orders

  • The application for the arbitration award to be made an order of court is dismissed.
  • Condonation is granted to the respondent for the late filing of the answering affidavit and counter-application.