Cleaverlad Projects (Pty) Limited v Venmop 275 (Pty) Limited and Another (2010/36492) [2016] ZAGPJHC 344 (12 December 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2010/36492

Reportable: No

Of interest to other judges: No

Revised.

12.12.2016

In the matter between:-

CLEAVERLAD PROJECTS (PTY) LIMITED Applicant

and

VENMOP 275 (PTY) LIMITED First

Respondent

BENJAMIN, PATRICIA JOAN Second

Respondent

JUDGMENT

CRUTCHFIELD AJ:

[1] This opposed application came before me on the motion roll of the week commencing 12 September 2016. I handed down the order on 16 September 2016 and advised that the reasons for that order would be furnished on a later date. These are those reasons.

[2] The applicant sought an order making the award of an arbitrator, a former judge of this division, an order of this court. The

respondents opposed the application in terms of a counter-application for the remittal of the matter back to the arbitrator to hear further evidence. The counter-application, in turn, was opposed by the applicant.

[3] It is useful at the outset to refer to the history of the matter, which I do hereunder.

[4] The applicant issued summons under the present case number during September 2010. The respondents defended the action and by agreement between the parties, the matter was referred to arbitration, which ran for sixteen (16) days between 13 November 2012 and 2 August 2013.

[5] The arbitrator’s award was delivered on 12 December 2013, (‘the award’), and the respondents directed to pay an amount of R2 772 655.00 together with interest and costs, to the applicant.

[6] The applicant served this application on 13 February 2014.

[7] The respondents’ served notice of their intention to oppose the application on 10 March 2014 but declined to deliver an answering affidavit.

[8] On 10 March 2014, the applicant procured an urgent interim order in the High Court interdicting the disposal of certain immovable

property by the first respondent, pending action proceedings setting aside the disposal, alleged to be a dissipation aimed at frustrating

the applicant’s enforcement of the award.

[9] On 5 May 2014, the applicant served a notice of set down for the hearing of this application on 23 June 2014, pursuant to which the respondents, on 8 August 2014, launched an application to review the award, causing this application to be held in abeyance pending finalisation of the review application.

[10] The review was heard on 3 February 2015 and dismissed with attorney and client costs, on 3 August 2015.

[11] The respondents’ subsequent petition to the Supreme Court of Appeal for leave to appeal the outcome of the review was equally unsuccessful.

[12] On 9 March 2016, the applicant set this application down for hearing on 16 March 2016. The respondents, on 15 March 2016, served their counter-application for the remittal of the matter back to arbitration in order to lead further evidence.

[13] The applicant served its answering affidavit in the counter-application on 15 April 2016. The respondents’ delivered their reply on 20 May 2016.

[14] The respondents declined to comply with this court’s Practice Manual in respect of the filing of heads of argument and a practice note, as a result of which the matter was set down in terms of a directive issued by the Senior Judge on 22 August 2016.

Subsequently, the respondents’ filed their heads of argument on 30 June 2016.

[15] The notice of set down of the hearing on 12 September 2016, was served on the respondents on 26 July 2016.

[16] On 9 September 2016, the respondents issued a notice for security for costs in terms of Uniform Rule 47(1).

[17] I was informed from the bar at the commencement of the hearing before me, that the applicant had furnished the security and hence it was no longer in issue.

[18] The parties entered into a written arbitration agreement (‘the arbitration agreement’), on 30 August 2012, the relevant material terms of which were the following:

18.1 The rules of the High Court would be applicable to the conduct of the arbitration, save that the time periods would be abridged as directed by the arbitrator who would also be entitled to make any ruling on any interlocutory application in an ‘informal’ manner determined by him.

18.2 The arbitrator would furnish a written award in respect of the outcome of the arbitration within a period of fourteen (14) days, and in respect of any interlocutory application, within twenty-four (24) hours.

18.3 The parties agreed that there would be no right of appeal and the award would be final and binding on them, save for the right of either to enforce the award and have it made an order of court.

18.4 The provisions of the Arbitration Act 42 of 1965 (‘the Act’), were made applicable to the arbitration.

[19] The respondents relied on the remittal application as their sole ground of opposition to the application before me.

[20] Section 32(2) of the Act provides that the court may, on the application of a party and after due notice to the other made within six weeks after the publication of the award to the parties, on good cause shown, remit any matter which was referred to arbitration back to the arbitrator for reconsideration, and for the making of a further award or a fresh award or for such other purpose as the court may direct.[1]

[21] As to the extension of that six week time period, section 38 of the Act provides that a court may, on good cause shown, extend any time period under the Act whether or not that time period has expired.

[22] Hence, the respondents were obliged to demonstrate good cause, both in respect of the remittal for further evidence, and, the extension of the six week time period from 12 December 2013 until 12 September 2016, a period in excess of two and a half years.

[23] The applicant argued that the respondents were obliged, in addition, to apply for condonation of the late filing of the counter-application, which the respondents failed to do. In the light of the view I took on the counter-application, it was unnecessary to deal with this aspect.

[24] The issue in respect of which the respondents sought to lead further evidence concerned the signature or otherwise of an acknowledgment of debt by the second respondent, this being a pertinent issue tried at the arbitration. The evidence sought to be led was that of one Debra Barson (‘Barson’), and Carol Ann Munro (‘Munro’). Whilst I deal more fully hereunder with the materiality of that evidence, it was tendered in respect of the alleged fraudulent signature of the acknowledgement of debt by a person other than the second respondent.

[25] It was common cause at the hearing before me that:

25.1 The signature of a particular acknowledgment of debt (‘the acknowledgment’), by the second respondent or otherwise, was a core issue in the arbitration proceedings.

25.2 Evidence in respect of the signature of the acknowledgment was led at the arbitration proceedings on behalf of both parties.

25.3 The evidence was scrutinized with great care by the arbitrator, who stated inter alia, the following in his award:

‘[2] This claim is based on an acknowledgment of debt (“the acknowledgment”) allegedly signed by the second (respondent) on behalf of the first (respondent) company during the latter half of 2009. … At the time of signing the acknowledgment, (the second (respondent) is alleged to have also signed on behalf of (the first respondent) a contract headed Construction Management Agreement (“the agreement”), which was the basis for claim A. The (respondents) deny that either of the documents was signed. Since claim A has been dismissed, the question whether the agreement was signed is no longer a factum probandum, but is very much part of the facta probantia as will appear from the evidence concerned. If I find that the acknowledgment was signed, as the (applicant) alleges, the (respondents) raise a number defences …

[3] The evidence for the (applicant) on the signing of the acknowledgment is important to my decision and I accordingly find it necessary to refer to such evidence in some detail …

[6] It is quite clear from the comparison of page 211 with page 41 that the initials at the foot of each are entirely identical with each other. Hajiyianni’s (‘an independent witness’) evidence is not contradicted and is strikingly and convincingly in accordance with the objective documentary evidence and with the undisputed fact that the causa was clearly wrong and required

amendment. Moreover, much of what he said was elicited under cross-examination and his evidence has the stamp of authentic

spontaneity. He was not shown exhibit B which it later appeared was the original of the acknowledgment and of page 211, and which bore two sets of initials on page 1, the upper set being in the vicinity of the causa. ...

(I interpose at this stage to state that Hajiyianni was an independent witness called on behalf of the applicant).

[9] Dimenakis testified that … (h)e knew (the second respondent). He had a good relationship with the (second respondent). Mr Benjamin (the director of the applicant) asked him to sign as a witness. He identified his initials on each of the 14 pages of the agreement. He signed as the second witness twice on the last page. He identified the signature of the first witness as that of Hajiyianni and also the signature of Mr Benjamin on behalf of (the applicant) and also that of (the second respondent). He identified the initials of Hajiyianni and Mr and Mrs Benjamin (the second respondent). Mrs Benjamin, (the second respondent)

signed and initialled in his presence. … He was then referred to ...the acknowledgment, Exhibit B. His signature

appeared twice on ... the second and last page of the acknowledgment and his initials appear twice on that page. His initials appear twice on ... on the first page of the acknowledgment. All the signing took place on one occasion. He was only asked by Mr Benjamin to sign on one occasion. … He did not remember Mr Benjamin coming back to say a mistake had occurred and he must sign again. He could not remember why he signed page 211 twice. He had nothing to gain by testifying; he no longer worked for Mr Benjamin and now was “working at the airport in duty free”, having resigned.

[10] Mr Jannie Viljoen Bester testified he was a handwriting expert. He was examined and cross-examined at great length. I find it unnecessary to analyse his evidence. It amounted essentially to this: Exhibits A and B, the originals of the agreement and the acknowledgment were genuine documents which had not been tampered with and which bore the signatures and initials of Mrs Benjamin (the second respondent). The (respondents) intended calling an expert to counter Bester’s evidence. But that witness, ... Vissoker was not called by (the respondents) to do so. During the presentation of (the applicant’s) case, the proceedings were interrupted to deal with an allegation... that he had been intimidated. He gave convincing evidence that he had been threatened by an unknown source. I am not sure whether that threat prevented his giving evidence on the contested signatures. Mr Riley who appeared for (the respondents) submitted that Vissoker’s version was before me since it was dealt with in detail by Bester. I disagree. Vissoker testified only on the intimidation. His expert view must accordingly be left out of account. In any event, so convincing was the direct evidence of Hajiyianni, Mr Benjamin and Dimenakis that I doubt whether Vissoker could have persuaded me to reject it.

[11] I find the evidence of (the second respondent) having signed and initialled the agreement and the acknowledgment compelling and true,

overwhelmingly on the probabilities. Hajiyianni was a very impressive witness. His evidence is supported by that of Mr Benjamin. Dimenakis no longer works for Mr Benjamin and has no reason that I am aware of to mislead. He does not appear to have as clear a recollection of the event as does Hajiyianni and Mr Benjamin and the contradictions between his evidence and theirs are to be expected of honest witnesses. Mr Riley who appeared for (the respondents) submitted that it was significant that Hajiyianni and Dimenakis could not say what documents were signed. I do not find that at all surprising; on the contrary, I find the evidence concerned probable and, in my view, it attests to their honestly. What is important is that they identified their own signatures and initials and that they testified in varying degrees of detail to an incident involving the signing of documents in 2009 at Sandringham. No evidence was led by (the respondents) to counter all this evidence. However, her daughter, Mrs Govender, did say under cross-examination that she knew her mother’s signature and she had not signed the documents. Mrs Govender was not present when the alleged signing occurred and the signatures concerned certainly look like her mother’s. She is not an expert on handwriting and I have no hesitation in rejecting her evidence as entirely valueless especially in the light of the very convincing evidence that (the second respondent) did sign the documents

concerned. (The second respondent) did not give evidence. Mrs Govender testified that she was very ill but could not say that she was unable to testify. I need not decide whether her failure to testify justifies an inference against her. Even in the absence of drawing an adverse inference against the (respondents) because of her silence, I am driven on the evidence before me to make the finding that (the second respondent) signed and initialled the agreement and the acknowledgment. ... (my emphasis)

[24] The authenticity of documents before me was in issue throughout ...’.

[26] It is against this background that the respondents, having failed on review, now seek leave to remit the matter back to the arbitrator in excess of two and a half years after the award was delivered.

[27] Benjamin v Sobac South African Building and Construction (Pty) Ltd[2] dealt with an application to remit a matter back to the arbitrator in circumstances where further evidence was discovered after the award was published and to which both parties referred me. Certain guidelines applicable to such applications were set out, the essence of which is the following:

27.1 In principle, a court has a discretion, (which is to be exercised judicially) whilst seeking to do justice to both parties, fairly and equally.

27.2 That discretion includes the power to remit where evidence is discovered after the publication of the award. The guiding principles

applicable to High Court litigation in this regard, are equally applicable (subject to the appropriate adjustments), to matters such as this.

27.3 The cardinal principle in arbitration proceedings is that litigation should be quickly and finally concluded. The corollary is that issues which have been raised and decided should not normally be re-opened.

27.4 The applicant must show that he could not by reasonable diligence have adduced the evidence timeously.

27.5 The evidence must be weighty and material. It must be evidence which would be practically conclusive. Fresh evidence which only corroborates evidence which has already been considered will not suffice.

27.6 Prejudice to the opponent must be considered.

[28] The respondents’ founding affidavit in the counter-application was deposed to by one Colin Premlin Govender, (‘Govender’),

the second respondent’s son-in-law. Whilst Govender alleged himself to be authorised to depose thereto on behalf of the second

respondent, the second respondent did not depose to a confirmatory affidavit. This was somewhat surprising given that the

issues at hand concerned her directly. Nor was any explanation tendered for the absence of such confirmatory affidavit. Nor did the second respondent give evidence at the arbitration.

[29] It is evident from the record of evidence led at the arbitration, that both Barson and Munro were referred to during the proceedings as the former and current, (at that stage), personal assistants of Mr Benjamin, respectively. Furthermore, Govender himself stated that Barson was known to him at the time of the arbitration, as Brent’s personal assistant.

[30] Notwithstanding, the respondents’ explanation for the delay in bringing the remittal application was that they were not aware of the envisaged evidence, at the time of the arbitration. This Govender alleged, was because Barson fortuitously contacted him on 9 February 2016 to inform him of the information which she had to share regarding her participation in the execution of the acknowledgment.

[31] Govender told Barson to prepare a written statement, which she did, and made it available to him on 11 March 2016. A copy of that statement was included in the papers before me.

[32] Barson in her statement, however, stated:

32.1 Contrary to that deposed to by Govender, that she was contacted by Govender.

32.2 That Govender knew Barson was Benjamin’s personal assistant and asked if she ‘could verify the authenticity of certain “acknowledgments of debt”’.

32.3 That she worked for the Benjamins and their companies from October 2000 until she resigned during February 2007.

32.4 That she referred Govender to Munro.

[33] (Barson’s reference to ‘the Benjamins’ was to the Applicant’s representative, Mr Benjamin (‘Benjamin’),

and his wife.)

[34] Barson’s resignation in February 2007, served to render her alleged evidence on the forgery of the second respondent’s

signature of the acknowledgment, irrelevant. This because it was found as a fact by the arbitrator that the acknowledgment was signed during 2009 in the presence of the two witnesses, Hajiyianni and Dimenakis, in Sandringham.

[35] As regards Munro’s envisaged evidence, it was to the effect that Benjamin allegedly showed her two acknowledgments of debt, one in the name of Venmop and the other in the name of the second respondent, both for over two million rand, although she could not recall the exact amounts. Benjamin had allegedly boasted to Munro that he had forged his mother’s signature on the documents.

[36] Munro’s allegations are notably vague. Moreover, as regards the acknowledgement, Munro’s envisaged evidence represents

inadmissible hearsay evidence. Notwithstanding, even if Munro’s proposed evidence were to be found by the arbitrator to be

admissible, neither her evidence nor that of Barson is ‘weighty and material’, or ‘practically conclusive’ as envisaged in Sobac, more especially given the detailed and specific nature of the evidence led on the issue at the arbitration.

[37] Two witnesses, Hajiyianni and Dimenakis, as well as Benjamin, (the party alleged to have performed the fraud), gave evidence that the second respondent signed the documents, one of which was the acknowledgment, in their presence.

[38] Govender stated that the evidence of the two proposed witnesses:

‘demonstrate unequivocally that (Benjamin) … perpetrated a fraud on the respondents, and (Benjamin’s) testimony that the second respondent signed the acknowledgment of debt constitutes nothing other than perjury’.

[39] Govender’s statement, however, fails to take account of the evidence of the two witnesses, both of whom would have had to perjure themselves in addition to Benjamin, in order for the proposed witnesses’ allegations to be found credible.

[40] The arbitrator carefully considered the detailed evidence of the witnesses, (one of whom was independent and had nothing to gain from misleading the arbitrator), as well as that of Benjamin, and found all three to be credible and reliable. Moreover, much of Benjamin’s evidence was extracted under cross-examination.

[41] The arbitrator summarised the evidence as follows: ‘I find the evidence of (the second respondent) having signed and initialled the agreement and the acknowledgment compelling and true, overwhelmingly on the probabilities. Hajiyianni was a very impressive witness. His evidence is supported by that of Mr Benjamin. Dimenakis no longer works for Mr Benjamin and has no reason that I am aware of to mislead. He does not appear to have as clear a recollection of the event as does Hajiyianni and Mr Benjamin and the contradictions between his evidence and theirs are to be expected of honest witnesses.’

[42] In the light of Barson’s statement that Govender approached her in an attempt to procure relevant evidence, a step he could equally well have taken at the time of the arbitration, together with Govender’s neglect to explain his failure to do so at that stage, more especially given that both Barson and Munro were referred to during the proceedings, the respondents’ purported explanation that the evidence was not previously known to them, does not demonstrate that they were not able ‘by reasonable diligence (to) adduce the evidence timeously’.[3]

[43] It serves to mention that Govender stated that the second respondent was precluded from testifying at the arbitration as she was suffering from cancer. A perusal of the record of the arbitration, however, revealed that whilst it was brought to the attention of the arbitrator that the second respondent was ill, no evidence was led to the effect that that illness precluded her from testifying. This aspect was pertinently dealt with by the arbitrator who stated in his award that:

‘(Mrs Govender, Mrs Benjamin’s daughter) is not an expert on handwriting and I have no hesitation in rejecting her evidence as entirely valueless especially in the light of the very convincing evidence that Mrs Benjamin did sign the documents concerned. Mrs Benjamin did not give evidence. Mrs Govender testified that she was very ill but could not state that she was unable to testify. I need not decide whether her failure to testify justifies an inference against her. Even in the absence of drawing an adverse inference against the defendants because of her silence, I am driven on the evidence before me to make the finding that she signed and initialled the agreement and the acknowledgment …’

[44] In so far as the respondents relied upon lay evidencing trumping that of experts, it is apparent (from the first quoted extract of the award), that whilst the evidence of the applicant’s expert was led, it was unnecessary for the purposes of the arbitrator’s award to analyse such evidence, in the light of that of the various witnesses to the signature.

[45] The respondent’s argument that ‘fraud unravels all’, is without foundation in that the fraudulent signature or otherwise of the acknowledgment was a central issue in the arbitration. In addition, the arbitrator stated in the award that the authenticity of the documents before him was an issue throughout the proceedings.

[46] Leadtrain[4] authoritatively laid down the principles applicable to the remittal of arbitration proceedings. Three of those principles require consideration in the current contest; namely; finality of the issues, expeditious resolution of those issues and prejudice to the opposing party, in this case the applicant.

[47] It is trite that finality in arbitration proceedings is important. Ordinarily, the award of an arbitrator is final. Section 28 of the Act[5] expressly provides that:

‘(u)nless the arbitration agreement provides otherwise, an award shall, subject to the provisions of this Act, be final and not subject to appeal and each party to the reference shall abide by and comply with the award in accordance with its terms.’

[48] It is evident from the contents of the arbitration agreement that the parties considered finality and the speedy determination of the disputed issues as significant factors in their choice of arbitration, together with the manner of its conduct, as the appropriate method of determining the litigation.

[49] Regrettably, notwithstanding the relevant provisions of the arbitration agreement, and the lapse of almost three years since

delivery of the award, the applicant has not yet been able to enforce the award. The delay to date, in itself, is prejudicial to the applicant.

[50] As to the meaning of ‘good cause’ I refer to the judgment of Peter AJ in the review application, in which he found the following:

‘[23] Although “good cause” defies precise or comprehensive definition, in this context it is a well-known expression that has two principle requirements. First is a reasonable explanation for the delay and, secondly, a bona fide case on the merits with some prospect of success; De Wet & Others v Western Bank Ltd 1979 (2) SA 1031 (A) at 1042; Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 765; Government of the Republic of Zimbabwe v Fick & Others 2013 (5) SA 325 (CC) at 334 para 25 and 350 paras 85 and 86.’

[51] Whilst ‘good cause’ has a broad meaning, good cause for a matter to be remitted under section 32(2) falls to be applied in the context of the Act, ‘which is directed at the finality of arbitration awards.’[6]

[52] I have already found that the respondents have not explained the delay in bringing the counter-application at so late a stage, nor their failure to present that evidence at the arbitration. In addition, given the absence of materiality of the envisaged testimony, the balance of probabilities does not favour that testimony having ‘a substantial effect, or an important influence’[7] on the result of the arbitration. Hence, I cannot find that the respondents have ‘a bona fide case on the merits with some

prospect of success’.

[53] Not only did the respondents bind themselves contractually to respect and implement the arbitrator’s award, which the parties agreed would be final, but the issue now sought to be reopened by the second respondent was tried and determined at the arbitration. There is no excuse for the respondents’ failure to make good on their contractual agreements, to the prejudice of the applicant. Further delay and the compounding of the prejudice to the applicant cannot be countenanced.

[54] In the final analysis, I am guided by Innes CJ in Shein v Excess Insurance Company Ltd,[8] to the effect that:

‘It is clear that the Court should be very chary of admitting fresh evidence after a case has been tried, more especially upon points which have been contested and decided at the trial. The danger of sanctioning such a course save under exceptional circumstances is manifest.’

[55] In similar terms: ‘‘It is not desirable to attempt to circumscribe when ‘good cause’ for remitting a matter will exist. … but once an issue has been pertinently addressed and decided there seems to us to be little room for remitting the matter for reconsideration. The guiding principle of consensual arbitration is finality – right or wrong – and we see no reason why an award of cost is to be treated differently to any other aspect of an award’.[9]

[56] Accordingly, I am of the view that the proposed evidence is not sufficiently material to justify the delay and consequent prejudice

to the applicant pursuant to the proposed reopening of the issue of the second respondent’s signature of the acknowledgment.

[57] I have demonstrated above that the respondents’ alleged reason for the lateness of the evidence, serves only to avoid the question. No explanation was forthcoming from Govender as to why Barson in particular, was not approached at the time of the arbitration. Furthermore, the aforementioned reason was proffered as the basis for ‘good cause’ for the extension of the six-week period in which the counter-application ought to have been brought. Given that the evidence was available to Govender utilising reasonable diligence, together with the delay being in excess of two and a half (2½) years, I do not consider the alleged reason to constitute good cause sufficient to justify the remittal of the matter to arbitration and the reopening of the issue of the second respondent’s signature, so long after the award was handed down.

[58] The respondents argued cogently that it did not lie with me to test the probabilities of the proposed evidence. This of course is correct. However, I am obliged to consider whether a proper case for remittal was made by the respondents and in doing so, I am required to consider the weight of the proposed evidence.

[59] Suffice it to state that the envisaged testimony is neither weighty nor material. Given the evidence of the two independent

witnesses, whom the arbitrator described as being ‘compelling and overwhelming’, the proposed evidence cannot be described as ‘practically conclusive’.

[60] The delay with which the respondents have brought the counter-application is a material factor. The prejudice to the

applicant were the matter to be remitted back to the arbitrator, some three years after the award was made, and in excess of seven (7), years after the proceedings were instituted, speaks for itself. The delay must be seen in conjunction with what appears to be the respondents’ intent to delay and avoid the enforcement of the arbitrator’s award.

[61] In the circumstances, the respondents have not shown good cause for the remittal of the matter back to the arbitrator, and nor for the extension of the six week period required in terms of sections 32(1) and (2) of the Act.

[62] It was not disputed that the respondents had not brought an application for condonation of the lateness of the counter-application. Given the findings by me aforementioned, this is not material.

[63] In respects of the costs of the applications before me, the applicant sought costs of the counter-application on the scale as between attorney and client.

[64] In re Alluvial Creek,[10] that court found that where a matter is hopeless in effect, as is the counter-application, then it is appropriate for costs on the attorney and client scale to be awarded.

[65] In the circumstances, I granted an order in the following terms:

1. The award of the arbitrator, former Judge E L Goldstein, delivered at Johannesburg on 12 December 2013, is made an order of this Court;

2. The respondents are ordered to pay the costs of the application jointly and severally, the one paying the other to be absolved;

3. The respondents’ counter-application is dismissed;

4. The respondents are ordered to pay the costs of the counter-application jointly and severally the one paying the other to be absolved, on the scale as between attorney and client.

_________________________________________________

A A CRUTCHFIELD

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

COUNSEL FOR APPLICANT

Mr K Lavine.

INSTRUCTED BY

Paul Friedman & Associates.

COUNSEL FOR RESPONDENTS Mr M Segal.

INSTRUCTED BY

Schoonees Belling & Georgiev.

DATE OF HEARING

12 September 2016.

DATE OF JUDGMENT

12 December 2016.

[1] Leadtrain Assessments (Pty) Ltd & Others v Leadtrain (Pty) Ltd & Others [2013] ZASCA 33, 2013 (5) SA 84 (SCA) (‘Leadtrain’).

[2] Benjamin v Sobac South African Building and Construction (Pty) Ltd 1989 (4) SA 940 (C) at 964B – D (‘Sobac’).

[3] Sobac above n 2 965 E-F.

[4] Leadtrain above n 1.

[5] ‘Unless the arbitration agreement provides otherwise, an award shall, subject to the provisions of this Act, be final and not subject to appeal and each party to the reference shall abide by and comply with the award in accordance with its terms.’; Leadtrain above n 1 [8].

[6] Leadtrain above n 1 [14].

[7] Sobac above n 2 964 E – F.

[8] 1912 AD 412 at 428 as quoted in Sobac above n 2 964 A-B.

[9] Leadtrain above n 1 [15].

[10] 1929 CPD 532.