City of Cape Town v Joint Venture Between Little Mead No. 37 (Pty) Ltd and Firstex Engineering Holdings (Pty) and Joint Venture Between Little Mead No. 37 (Pty) Ltd and Firstex Engineering Holdings (Pty) Ltd v City of Cape Town (9995/2014, 13769/2014) [2014] ZAWCHC 201 (17 December 2014)

City of Cape Town v Joint Venture Between Little Mead No. 37 (Pty) Ltd and Firstex Engineering Holdings (Pty) and Joint Venture Between Little Mead No. 37 (Pty) Ltd and Firstex Engineering Holdings (Pty) Ltd v City of Cape Town (9995/2014, 13769/2014) [2014] ZAWCHC 201 (17 December 2014)

The court held that the arbitration proceedings should be deemed valid and effective under s 83(4) of the Companies Act, as all parties conducted themselves on the assumption that the companies existed and it would be just and equitable to validate the proceedings. The application by Little Mead to set aside the arbitral award was dismissed because the alleged impropriety—bad advice from its own legal representatives—did not amount to the award being 'improperly obtained' within the meaning of s 33(1)(c) of the Arbitration Act. The court found that the award was obtained by the claimants' consent, not by any fraud or impropriety by the City. Furthermore, condonation for the late...

Citation
[2014] ZAWCHC 201
Parties
Applicant: City of Cape Town; Respondent: Joint Venture Between Little Mead No. 37 (Pty) Ltd and Firstex Engineering Holdings (Pty) Ltd; Applicant: Joint Venture Between Little Mead No. 37 (Pty) Ltd and Firstex Engineering Holdings (Pty) Ltd; Respondent: City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 December 2014
Case Number
9995/2014, 13769/2014
Procedural Posture
Review Application / Judgment Delivered After Hearing Applications to Make Arbitral Award an Order of Court and to Set Aside the Award.
Outcome
Application by Little Mead to set aside the arbitral award dismissed; arbitration proceedings deemed valid and effective; arbitral award made an order of court; costs awarded against Little Mead.
Judges
Binns-Ward
Legal Topics
Arbitration Act 42 of 1965, Companies Act 71 of 2008, Setting Aside Arbitral Award, Condonation for Late Application, Company Deregistration, Finality of Litigation
Civil Procedure Commercial and Corporate Arbitration Act 42 of 1965 Companies Act 71 of 2008 Setting Aside Arbitral Award Condonation for Late Application Company Deregistration Finality of Litigation

Case Brief

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Parties

City of Cape Town

Applicant

Joint Venture Between Little Mead No. 37 (Pty) Ltd and Firstex Engineering Holdings (Pty) Ltd

Respondent

Joint Venture Between Little Mead No. 37 (Pty) Ltd and Firstex Engineering Holdings (Pty) Ltd

Applicant

City of Cape Town

Respondent

Procedural Posture

Review Application / Judgment Delivered After Hearing Applications to Make Arbitral Award an Order of Court and to Set Aside the Award.

Legal Issues

  1. 1 Whether the arbitration proceedings conducted by a deregistered company should be deemed valid and effective.
  2. 2 Whether the arbitral award made by agreement between the parties should be set aside as 'improperly obtained' under s 33(1)(c) of the Arbitration Act.
  3. 3 Whether condonation should be granted for the late application to set aside the award.

Ratio Decidendi

The court held that the arbitration proceedings should be deemed valid and effective under s 83(4) of the Companies Act, as all parties conducted themselves on the assumption that the companies existed and it would be just and equitable to validate the proceedings. The application by Little Mead to set aside the arbitral award was dismissed because the alleged impropriety—bad advice from its own legal representatives—did not amount to the award being 'improperly obtained' within the meaning of s 33(1)(c) of the Arbitration Act. The court found that the award was obtained by the claimants' consent, not by any fraud or impropriety by the City. Furthermore, condonation for the late...

Court Disposition

Application by Little Mead to set aside the arbitral award dismissed; arbitration proceedings deemed valid and effective; arbitral award made an order of court; costs awarded against Little Mead.

Orders

  • It is declared, in terms of s 83(4) of the Companies Act 71 of 2008, that the arbitration proceedings between the Joint Venture and the City of Cape Town before Mr W.G. Burger SC shall be deemed to have been validly and effectively instituted and conducted.
  • The application by Little Mead No. 37 (Pty) Ltd in terms of s 33(1)(c) read with s 38 of the Arbitration Act 42 of 1965 to set aside the arbitral award is dismissed.