Close-Up Mining (Pty) Ltd and Others v Boruchowitz and Another; Lutzkie Group of Companies (Pty) Ltd v Close-Up Mining (Pty) Ltd and Others (65379/2020; 64224/2020) [2021] ZAGPPHC 732 (29 October 2021)

Close-Up Mining (Pty) Ltd and Others v Boruchowitz and Another; Lutzkie Group of Companies (Pty) Ltd v Close-Up Mining (Pty) Ltd and Others (65379/2020; 64224/2020) [2021] ZAGPPHC 732 (29 October 2021)

The court held that the arbitrator did not commit a gross irregularity or exceed his powers by refusing to consider repudiation as a ground for cancellation, since repudiation was not pleaded or properly raised in the proceedings. The arbitrator correctly confined his determination to the issues defined by the parties and did not misconceive his mandate. Any alleged mistakes of law or fact do not constitute grounds for review under section 33(1)(b) of the Arbitration Act. The application to set aside the award was dismissed, and the arbitration award was made an order of court under section 31 of the Arbitration Act. The interlocutory applications for condonation and supplementary...

Citation
[2021] ZAGPPHC 732
Parties
Applicant: Close-Up Mining (Pty) Ltd; Applicant: Willem Pieter Tenner; Applicant: Close-Up Machinery and Plant Hire (Pty) Ltd; Respondent: Judge Philip Boruchowitz; Respondent: Lutzkie Group of Companies (Pty) Ltd; Applicant: Lutzkie Group of Companies (Pty) Ltd; Respondent: Close-Up Mining (Pty) Ltd; Respondent: Willem Pieter Tenner; Respondent: Close-Up Machinery and Plant Hire (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 October 2021
Case Number
65379/2020; 64224/2020
Procedural Posture
Review Application / Judgment on Review and Application to Make Arbitration Award an Order of Court
Outcome
The review application was dismissed with costs. The arbitration award was made an order of court. Condonation and leave to file supplementary affidavits were granted.
Judges
T J Raulinga
Legal Topics
Arbitration Act Section 33, Arbitration Award Enforcement, Gross Irregularity, Repudiation, Contract Cancellation, Powers of Arbitrator
Civil Procedure Commercial and Corporate Alternative Dispute Resolution Arbitration Act Section 33 Arbitration Award Enforcement Gross Irregularity Repudiation Contract Cancellation +1 more

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Parties

Close-Up Mining (Pty) Ltd

Applicant

Willem Pieter Tenner

Applicant

Close-Up Machinery and Plant Hire (Pty) Ltd

Applicant

Judge Philip Boruchowitz

Respondent

Lutzkie Group of Companies (Pty) Ltd

Respondent

Lutzkie Group of Companies (Pty) Ltd

Applicant

Close-Up Mining (Pty) Ltd

Respondent

Willem Pieter Tenner

Respondent

Close-Up Machinery and Plant Hire (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review and Application to Make Arbitration Award an Order of Court

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity in failing to consider repudiation as a ground for cancellation.
  2. 2 Whether the arbitrator exceeded his powers by including certain parties in the award.
  3. 3 Whether the arbitration award should be made an order of court under section 31 of the Arbitration Act.

Ratio Decidendi

The court held that the arbitrator did not commit a gross irregularity or exceed his powers by refusing to consider repudiation as a ground for cancellation, since repudiation was not pleaded or properly raised in the proceedings. The arbitrator correctly confined his determination to the issues defined by the parties and did not misconceive his mandate. Any alleged mistakes of law or fact do not constitute grounds for review under section 33(1)(b) of the Arbitration Act. The application to set aside the award was dismissed, and the arbitration award was made an order of court under section 31 of the Arbitration Act. The interlocutory applications for condonation and supplementary...

Court Disposition

The review application was dismissed with costs. The arbitration award was made an order of court. Condonation and leave to file supplementary affidavits were granted.

Orders

  • Condonation is granted to the second respondent for the late filing of its answering affidavit.
  • Leave is granted to the applicant to file a supplementary affidavit of Pieter Willem Tenner dated 20 July 2021.