Du Toit NO v Road Accident Fund (A590/09) [2010] ZAWCHC 100 (19 May 2010)

Du Toit NO v Road Accident Fund (A590/09) [2010] ZAWCHC 100 (19 May 2010)

The court found that the arbitrator's conduct in summarily dismissing the application without affording the Respondent's counsel a fair opportunity to present argument on the merits and the constitutional issue constituted a breach of the audi alteram partem rule. This amounted to a reviewable irregularity under common law. The arbitrator's failure to provide reasons at the time and the subsequent inconsistent reasoning further supported the finding of unfairness. The court held that, given the history and costs involved, justice would best be served by remitting the matter to the same arbitrator to afford both parties a proper hearing, rather than commencing afresh before another...

Citation
[2010] ZAWCHC 100
Parties
Appellant: A.J. Du Toit N.O; Respondent: Road Accident Fund
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 May 2010
Case Number
A590/09
Procedural Posture
Civil Appeal / Appeal From Review of Arbitral Procedural Ruling
Outcome
Appeal dismissed with costs. The order of the court a quo is amended.
Judges
Erasmus, Fourie, Le Grange
Legal Topics
Arbitration Review, Procedural Fairness, Audi Alteram Partem, Remittal of Matter
Civil Procedure Alternative Dispute Resolution Arbitration Review Procedural Fairness Audi Alteram Partem Remittal of Matter

Case Brief

Summary, issues, holding and outcome

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Parties

A.J. Du Toit N.O

Appellant

Road Accident Fund

Respondent

Procedural Posture

Civil Appeal / Appeal From Review of Arbitral Procedural Ruling

Legal Issues

  1. 1 Whether the arbitrator's conduct amounted to a reviewable irregularity under common law.
  2. 2 Whether the Respondent was denied a fair hearing in the arbitration proceedings.
  3. 3 Whether the matter should be remitted to the arbitrator or commence afresh before another arbitrator.

Ratio Decidendi

The court found that the arbitrator's conduct in summarily dismissing the application without affording the Respondent's counsel a fair opportunity to present argument on the merits and the constitutional issue constituted a breach of the audi alteram partem rule. This amounted to a reviewable irregularity under common law. The arbitrator's failure to provide reasons at the time and the subsequent inconsistent reasoning further supported the finding of unfairness. The court held that, given the history and costs involved, justice would best be served by remitting the matter to the same arbitrator to afford both parties a proper hearing, rather than commencing afresh before another...

Court Disposition

Appeal dismissed with costs. The order of the court a quo is amended.

Orders

  • The ruling of the arbitrator H M Carstens, SC issued on 7 April 2008 is set aside.
  • The matter is remitted to the arbitrator to afford the legal representatives of both parties a fair and proper hearing in respect of the application compelling Du Preez to submit to the assessment by Dr Paneri-Peter.