Engen Petroleum Limited (1989/3754/6) v Mfoza Service Station (Pty) Limited and Another (2019/17400) [2020] ZAGPJHC 242 (5 October 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case No: 2019/17400

ENGEN PETROLEUM LIMITED (1989/3754/6) Applicant And MFOZA SERVICE STATION (PTY) LIMITED First Respondent ADVOCATE VINCENT MALEKA SC Second Respondent

This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for hand-down is deemed to be 10h00 on 5 October 2020.

JUDGMENT

INGRID OPPERMAN J

INTRODUCTION

[1] The applicant (‘Engen’) seeks to review and set aside the arbitration award of Advocate Vincent Maleka SC (‘the arbitrator’) dated 3 April 2019 (‘the Award’).

[2] The arbitration (‘the arbitration’) was convened in terms of section 12B of the Petroleum Products Act, 120 of 1977, as amended (‘the Petroleum Products Act’) which was an arbitration convened under a ‘special law’ as determined by section 40 of the Arbitration Act, 42 of 1965, as amended (‘the Arbitration Act’). The grounds of review recorded in section 33 of the Arbitration Act may accordingly have application.

[3] In the Award, the arbitrator found, consequent to a jurisdictional objection by Engen, that he had jurisdiction under section 12B(4)(a) of the Petroleum Products Act to award monetary compensation.

[4] Engen contends that the arbitration award is reviewable as the arbitrator committed a material error of law, which constitutes a gross irregularity, and that he exceeded his powers (as contemplated by section 33 of the Arbitration Act). In doing so, it is argued, the arbitrator interpreted the provisions of section 12B(4)(a) of the Petroleum Products Act to confer a right upon the first respondent (‘Mfoza’) to claim patrimonial damages, which, so the argument goes, is a right which section 12B(4)(a) does not contemplate, and the arbitrator thereby, Engen submits, conferred upon himself a jurisdiction and competence which section 12B(4)(a) does not afford and thereby vitiated Engen’s right to a fair hearing.

REPRESENTATION OF MFOZA

[5] Prior to the hearing on 30 October 2019, I caused a note to be sent to the parties requesting them to address the court on the competence of Mr Sydney Tyobeka (‘Mr Tyobeka’), a site manager of Mfoza and not a legal practitioner, to represent Mfoza in these proceedings. Applying the judgment of Manong[1], the sole director of Mfoza, Ms Nozipho Cynthia Tyobeka (‘the director’) and Mr Tyobeka signed a power of attorney recording in 5 paragraphs, amongst other things, that Mr Tyobeka may indeed represent Mfoza and that all orders and judgments which are made against Mfoza will be binding on it. Having considered the power of attorney I was satisfied that Manong had been complied with. On this basis then, the matter proceeded.

THE QUESTION REFERRED FOR DETERMINATION

[6] Consequent to a request by Mfoza, the Controller of Petroleum Products (‘the Controller’) acting in terms of section 12B of the Petroleum Products Act, referred certain practices that Mfoza had brought to the Controller’s attention to arbitration. The Controller appointed Adv Maleka SC as the arbitrator.

[7] The arbitrator[2] directed that Mfoza file a statement of case and that Engen file a statement of response in answer thereto. In its statement of case, Mfoza alleged its agreement with Engen and recorded the material terms of such agreement. The agreement is styled ‘the operating lease’. It then alleged breach/es and contended that it had suffered financial losses, which is set out in annexure ‘E’ to the statement of case.

[8] Engen furnished its statement of response and therein set out that an arbitrator acting under the auspices of section 12B(4)(a) of the Petroleum Products Act, cannot grant damages i.e. that the arbitrator does not have the requisite jurisdiction or competence to grant damages. It is worth quoting the entire pleaded portion of Engen’s statement of response as it forms the cornerstone of Engen’s argument in this review:

‘An arbitrator in terms of Section 12B cannot grant damages

15. If the arbitrator determines that Engen has perpetrated an unfair and unreasonable contractual practice (which is denied), the arbitrator may, in terms of Section 12B(4)(a) of the PPA make such award as he deems necessary to correct such practice.

16. Within its popular and ordinary grammatical meaning, to correct, is to “put right”.

17. Section 12B makes no specific and explicit reference to damages.

18. When considered within the context of Section 12B, Section 12B(4)(a), only empowers the arbitrator to “put right” such practice (being the unreasonable or unfair practice). And it is submitted that an arbitrator may only put right an unfair or unreasonable contractual practice by an award ad factum praestandum.

19. In amplification of the above, it is submitted that no reasonable interpretation of Section 12B(4)(a) of the PPA could contemplate the awarding of damages in that:

19.1 as regards delictual damages, Section 12B(4)(a) is limited to an enquiry into the alleged unfairness and/or unreasonableness of “contractual practices” only, that is to say conduct arising out of the contract itself. Accordingly, alleged delictual conduct is excluded from the ambit of Section 12B(4)(a), moreover liability in delict can only arise if there are positive findings in respect of factors other than unreasonableness and/or unfairness, which factors Section 12B(4)(a) does not permit enquiries into. It accordingly follows that damages are excluded from the ambit of the relief obtainable thereunder.

19.2 similarly, as regards contractual damages, an enquiry under Section 12B(4)(a) is limited to determining whether or not an alleged contractual practice is unfair or unreasonable whereas the adjudication of a claim for contractual damages is concerned with the objective determination of other factors. More specifically, liability for contractual damages requires the determination of something more than merely unfairness and/or unreasonableness and it follows that damages are excluded from the ambit of the relief obtainable thereunder.

20. Section 12B(4)(b), by contrast, affords the arbitrator the competence to “make such award as he deems necessary to compensate any party affected” for “frivolous or capricious” allegations. This Section, again, makes no provision for damages, and it follows that an award for damages is excluded from the ambit thereof as the exercise contemplated thereby is limited to the determination of frivolity and/or capriciousness only. Compensation only entitles the arbitrator to award a solatium and does not afford the other arbitrator the competence to award damages for patrimonial loss.

21. In toto, it is thus submitted that an arbitrator cannot award Mfoza patrimonial damages, which is the relief which Mfoza prays for. If

the arbitrator finds this to be the case, the matter ends here.’

[9] In so setting out such jurisdictional challenge, Engen referred to the wording of section 12B(4)(a), which entitles the arbitrator, acting under such section, to ‘make such award as he or she deems necessary to correct such practice’. Engen argued that the ordinary grammatical meaning of the word ‘correct’ is to put right and that no interpretation of section 12B(4)(a) admits of a damages claim. Engen contended that the type of award contemplated is one of ad factum praestandum (to do something) and that the express wording of section 12B(4)(a) makes no provision for an award directing the payment of damages or compensation.

[10] Engen also contrasted the provisions of section 12B(4)(a) with that of section 12B(4)(b) and contended that section 12B(4)(b) specifically affords an arbitrator who finds that the allegations giving rise to the arbitration are frivolous and capricious to make such award necessary to ‘compensate’ the party affected by such allegations. ‘Compensate’, it pointed out, is expressly mentioned in section 12B(4)(b) and is expressly omitted in section 12B(4)(a).

[11] The jurisdictional challenge was separated out and formulated as follows by the arbitrator:

‘The second is the objection to the monetary compensation sought by Mfoza in the amount of R8 117 872.63 and interest thereon, it being contended that that relief amounts to a claim for damages which cannot be granted under the arbitral jurisdiction conferred upon me in terms of section 12B(4)(a) of the PPA’ (emphasis provided)

[12] This gave rise to the Award, which is the subject of the current review limited to the jurisdictional finding[3]. The arbitrator dismissed ‘the second objection’.

INTERPRETATION OF SECTION 12B(4) OF THE PETROLEUM PRODUCTS ACT

‘An arbitrator contemplated in subsection (2) or (3) -

(a) shall determine whether the alleged contractual practices concerned are unfair or unreasonable and, if so, shall make such award as he or she deems necessary to correct such practice; and

(b) shall determine whether the allegations giving rise to the arbitration were frivolous or capricious and, if so, shall make such

award as he or she deems necessary to compensate any party affected by such allegations.’

[14] Section 12B(4)(a) provides that an arbitrator shall make such award as he or she deems necessary to correct a contractual practice found to be unfair or unreasonable.

[15] At the hearing of the review on 30 October 2019, the object or purpose of section 12B(4)(a) of the Petroleum Products Act was debated and the submission was made that it was in keeping with the established common law that a Court may ‘temper’ the enforcement of terms under limited circumstances. The fact that this very issue was the subject of a case before the Constitutional Court arose. All in this matter then agreed that the matter would be postponed pending judgment in that matter. The matter in question has now been decided. It is Beadica 231 CC and others v Trustees for the Time Being of the Oregon Trust and others,[4] the judgement in which was handed down by the Constitutional Court on 17 June 2020. This court called for supplementary heads of argument dealing with the implications of Beadica for this case, which heads were received during July 2020. Due to the duty roster having been finalised, the matter could only again be entertained during the September 2020 recess as the parties wanted to make further oral submissions. All of this, to decide whether (i) section 12B(4)(a) permits of awarding monetary compensation as part of the ‘corrective practice jurisdiction’ as contemplated therein and/or (ii) whether the common law was something other than hitherto understood which might give rise to a construction of the section affording compensatory remedial jurisdiction to the arbitrator and the power to award damages.

[16] By virtue of my findings herein, I have decided that the former enquiry is unnecessary and in fact, if I were to have engaged in that exercise, I might have been guilty of doing something of the sort that Engen has criticised the arbitrator for doing, i.e. exceeding the parameters of the dispute before me.

WHAT IS CLAIMED BY MFOZA?

[17] The first objection, which does not form the subject matter of this review, related to the scope of the referral to arbitration. In respect of this objection, the arbitrator had ordered that certain paragraphs be excised from Mfoza’s statement of case.

[18] No formal set of rules such as the High Court rules or a set of rules published by the Arbitration Foundation of South Africa (‘the AFSA rules) had been agreed upon between the parties nor did the arbitrator impose a particular and recognised body of rules, instead, the arbitrator, who had the power to direct what procedure should be followed in the arbitration, and acting in terms of section 12B(3) of the Petroleum Products Act, directed that Mfoza file a statement of case and that Engen, should file a response. It is clear from the manner in which the arbitrator had dealt with the first objection that the arbitrator had in mind that these two documents, the statement of case and response, should serve as pleadings, which would define the scope of the referral to arbitration as well as the issues in dispute between the parties.

[19] The arbitrator was required to deal with the complaint summarised in paragraph 21[5] of the statement of response. This he did by dismissing the objection. Engen has argued that the arbitrator was required to have analysed the award sought by Mfoza. If he had done this and concluded that Mfoza was seeking patrimonial damages, then he ought to have found that he did not have the jurisdiction to grant such relief.

[20] In Business Zone[6] (‘Business Zone SCA’), the Supreme Court of Appeal (‘SCA’) distinguished between a ‘corrective remedial jurisdiction’, which can only operate prospectively and a ‘compensatory remedial jurisdiction’ which can operate retrospectively. It held that the jurisdiction conferred in terms of section 12B(4)(a), is corrective, i.e. it is a jurisdiction to make awards that operate prospectively only. In other words, the arbitrator with a corrective remedial jurisdiction can only direct that future practices be modified to confer a remedy, but it does not allow an arbitrator with this type of jurisdiction to grant monetary relief in the form of damages for past wrongs and patrimonial loss suffered by the victim of the legal injury complained of. The SCA held expressly that an award of damages is not competent under a corrective remedial jurisdiction but only under a compensatory remedial jurisdiction.[7] In the Constitutional Court[8] (‘Business Zone CC’), the judgment of the SCA was reversed on a different aspect but not on this fundamental distinction. Potterill J in Marndre Belleggings CC[9] found that section 12B(4)(a) made no provision for an award of damages and considered herself bound by Business Zone SCA.

[21] Annexure E to Mfoza’s statement of case, documents 5 claims:

Claim 1 - for the period October 2015 to August 2016 in the amount of R2 812 650.35[10] described to be computed as follows: estimated profit: R 1 718 847.88, actual loss: R 909 094.80, written off dated stock: R 15 000 and loss of goodwill: R 100 000.

Claim 2 – for the period September 2016 to January 2017 in the amount of R 486 013.66 described as comprising of actual expenses incurred.

Claim 3 – for the period February 2017 and March 2017 in the amount of R 390 473.89 described as comprising of projected profit of R 276 248.04 and actual loss of R 114 225.85.

Claim 4 – for the period April 2017 to June 2018 in the sum of R 3 928 734.73 described as comprising of projected profit of R 2 810 122.94 and actual loss of

R 1 118 611.79;

Claim 5 – R500 000 as the director of Mfoza had lost her place of residence through a foreclosure by the Bank[11] - the amount being the difference between the market value and the forced sale value.

The total of claim = R 8 117 872.63

[22] The claim of Mfoza is quite evidently a claim for damages and includes a claim for loss of profits which is often categorised as consequential or special damages in legal parlance.

DISCUSSION

[23] The arbitrator was of course alive to the issue but instead of upholding Engen’s objection in the light of the nature of Mfoza’s claim as set out in its statement of case and affording it an opportunity to amend its statement of case, if it wished to do so to bring a claim within the parameters of what section 12B(4)(a) allows, he dismissed the objection and held that a claim for monetary compensation arising from proven allegations of unreasonable or unfair contractual practices could be made under section 12B(4)(a). This approach appears to be erroneous in the light of decided authority binding on this Court and on the arbitrator. He found that he had powers that these authorities establish an arbitrator in his position does not have. In finding that he had powers (jurisdiction to award relief of a particular kind) that these binding authorities hold an arbitrator in that position does not have, he exceeded his powers.

[24] Both the SCA and the Constitutional Court have held that the jurisdiction conferred in terms of section 12B(4)(a), is corrective. The SCA held expressly that an award of damages is not competent under a corrective remedial jurisdiction - only under a compensatory remedial jurisdiction.[12] The objection thus taken by Engen was good and ought to have been upheld. The relief sought by Mfoza, based on the grounds and calculations set out in annexure ‘E’ (quoted above) to Mfoza’s statement of claim, does not fall within the jurisdiction (power to award relief of this kind) of the arbitrator. Confined by the statute to those powers only that the statute confers, an arbitrator acting under this statute can award no relief beyond the scope of what the decisions of the Courts have held that the statute permits. This is the essence of the rule of law. The statute is the product of the democratic will of the people speaking through the legislature. The Courts have spoken as to what the will of the people as expressed in the statute means. This Court is bound to apply the decisions of the higher Courts on the interpretation of this statute. Neither arbitrators appointed in terms of the statute nor Courts can substitute their own interpretations of the statute for the definitive one arrived at by the highest Courts. Engen is entitled to its order.

[25] It may well be that, as the arbitrator opined, monetary compensation in some or other form, is competent[13] as part of the range of corrective measures referred to in section 12B(4)(a) as noted by the High Court in Bright Idea[14] and that it would then be:

‘[27] ……. bounded by all the principles that constrain adjudicators’ decisions generally, not least the presumption of legality of legislation (omnia praesumuntur rite esse acta) and rationality as an incidence of the rule of law. Additionally, overarching notions of justice, reasonableness, limitations imposed by other rights, such as freedom and individual autonomy to contract, decisional efficacy, effectiveness and enforceability, and so on, must inform the arbitrator’s award. So too must the prohibition against forum-shopping.’ (footnotes omitted)

[26] Section 12B(4)(a) is aimed at addressing the unequal bargaining power between the respective parties, being a wholesaler (in this case, Engen) and the licensed retailer (in this case, Mfoza).

[27] In Business Zone SCA, the court had held that a single act of cancellation does not constitute a practice and that section 12B(4)(a) does not vest an arbitrator with the power to determine whether a contract has been validly terminated. The Constitutional Court concluded differently. It held:

‘[76] I therefore conclude that a single act of cancellation may amount to a contractual practice under section 12B. Like any other contractual practice, it is susceptible to arbitral correction under section 12B(4)(a). The arbitrator’s corrective relief would extend to the terrain of setting aside the unfair or unreasonable act of cancelling the underlying agreement and directing that the parties reinstate their agreement. It follows that Engen’s argument that the arbitrator’s corrective power under section 12B presumes the backdrop of an ongoing contractual relationship that can be subject to such correction must fail.’ (footnotes omitted) (emphasis provided)

[28] In this case, Engen cancelled the agreement during February 2017. On 17 December 2020, Keightley J ordered the eviction of Mfoza from the leased property and in so doing held that the cancellation of the agreement in February 2017, was lawful. The agreement would have terminated in March 2020 by the effluxion of time.

[29] In paras 26.1, 26.2 and 26.3 of the Award, the arbitrator distinguished the facts which served before the SCA in Business Zone SCA from the facts in this case with reference to the continued existence of the agreement. He held that the SCA judgment had dealt with a case in which the agreement had been cancelled whereas:

‘That conclusion[15] of the SCA is a far-cry from a proposition that whenever the continued existence of a contract is not in issue, allegations of unreasonable

or unfair contractual practice arising from such a contract may not be corrected by way of a monetary compensation, in the event those allegations are established under the arbitral jurisdiction of section 12B(4)(a) of the PPA.’

[30] In this case Engen had cancelled the agreement during February 2017 and this cancellation has now been endorsed as having been lawful by a court order.[16] The ‘continued existence’ of the agreement is thus, very much, in issue.[17] Both parties contended that it had been cancelled. Mfoza contended that it had been cancelled during August 2016 and Engen during February 2017.

[31] In principle, the arbitrator could set aside the cancellation of the agreement and reinstate the agreement.[18] Whether this can (or should) be done in the face of a court order, I express no view.

[32] What is clear though, is that section 12B(4)(a), interpreted by the Courts, does not permit the arbitrator to grant an order for damages. It authorises corrective remedial action prospectively – what thus happened before the appointment of the arbitrator on 1 March 2018 (or at best, the date of the request for submission

to arbitration, being 20 July 2017), cannot be addressed in the form of a damages award. Engen may be directed to amend its ways in the future, but the statute under which the arbitration was convened and from which the arbitrator derived his powers to grant particular types of relief does not permit of damages claims for past wrongs. Claims 1 to 3 and half of Claim 4, fall foul of this prohibition. This prohibition is not dependant on cancellation of the agreement. Irrespective of whether the agreement has been cancelled, damages cannot be granted.[19]

[33] In Minister of Public Works v Haffejee NO [20] Marais JA held that a tribunal created by legislation is ‘a creature of statute with no inherent powers’ which cannot by its own ruling or decision ‘confer a jurisdiction upon itself which it does not in law possess.’ The arbitrator was appointed in terms of section 12B of the Petroleum Products Act. A wrong decision on the requisite jurisdiction and competence conferred in terms of section 12B(4)(a) is one in which, ‘If it decided that it had jurisdiction and it was wrong, its hearing of the case would amount to an act which was ultra vires and of no force or effect.’ Such an error would constitute a gross irregularity, as he would have exceeded his powers.

[34] Engen contended that the arbitrator, in deciding this jurisdictional issue, asked and answered the wrong question. The question was whether Mfoza could claim damages in terms of section 12B(4)(a) of the Petroleum Products Act. The arbitrator made no finding in respect of such issue but in stead determined that monetary compensation could be afforded to the claimant.

[35] Much was made in Mfoza’s supplementary heads of argument of the fact that the issue of jurisdiction was prematurely raised. The following dicta of the Constitutional Court[21] puts this to bed:

’74. The specific term “jurisdiction”, which has resulted in some controversy, has been defined as the “power or competence of a Court to hear and determine an issue between parties”. This Court regularly has to decide whether it has jurisdiction over a matter, because it may decide only constitutional matters and issues connected with decisions on constitutional matters. If a litigant raises a constitutional issue, this Court has jurisdiction, even though the issue may eventually be decided against the litigant.

75. Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case. If Mr Gcaba’s case were heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision. In the event of the Court’s

jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s

competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion,

but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s

claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court………..’ (emphasis added)

[36] The arbitrator, as he was entitled to do, set the rules to define what the issues between the parties were. They filed the statements of case and of response. Mfoza claimed R 8 117 872.63 consisting of claims 1 to 5 as set out in annexure ‘E’ to the statement of case which I have set out above. The arbitrator does not have the jurisdiction to entertain this claim and was accordingly bound by law to have found this. It is not for the arbitrator to say that the facts asserted might also sustain another claim where he might have jurisdiction. It was for the arbitrator to decide whether he had jurisdiction on the pleaded case. He ought to have found that he did not have jurisdiction on the pleaded case and have afforded Mfoza an opportunity to amend its statement of case. This is a fair procedure used in the High Court when exceptions are upheld and it would seem to have been well-suited to this situation.[22]

[37] A statutory tribunal cannot exceed its own jurisdiction. In Goldfields Investment Ltd and Another v City Council of Johannesburg and Another[23] the court found:

"A mistake of law per se is not an irregularity but its consequences amount to gross irregularity where a judicial officer although perfectly well-intentioned and bona fide does not direct his mind to the issue before him and so prevents the aggrieved party from having its case fully and fairly determined."

[38] Section 33 of the Arbitration Act provides:

(1) Where—

(a) any member of an arbitration tribunal has misconducted himself in relation to his duties as arbitrator or umpire; or

(b) an arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings or has exceeded its powers; or

(c) an award has been improperly obtained,

the court may, on the application of any party to the reference after due notice to the other party or parties, make an order setting the award aside.

[39] In my view, my finding constitutes no more than that the arbitrator has exceeded his powers as contemplated in section 33(1)(b) of the Arbitration Act.[24] I find that no case has been made out to direct the Controller to appoint a new arbitrator. It is clear to me that the arbitrator was perfectly well-intentioned and bona fide. The Petroleum Products Act is designed to level the playing fields between the Davids and the Goliaths of the industry. The arbitrator was at pains to emphasize that his conclusion should not be construed as a determination of the merits of Mfoza’s causes of complaint and that that is still to be heard in due course.[25]

[40] In this regard I am reminded of what was held in President of the Republic of South Africa v South African Rugby Football Union[26] as follows:

‘We are in full agreement with the following observation made by Mason J in a judgment given by him in the High Court of Australia:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

We also agree with a further observation made by Mason J in the same case that:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.”’

[41] Although the arbitrator has expressed a view that monetary compensation is, in principle, a competent corrective remedial remedy (whatever content is to be given to the concept in the fullness of time), Mfoza still needs to plead a case falling within the limits of the statutory framework as interpreted by the highest Courts. Engen will have ample opportunity to deal with such new case as may be made out by Mfoza and both parties should have their cases fully and fairly determined.

COSTS

[42] I can see no reason why the costs should not follow the result and none was advanced.

ORDER

[43] I accordingly make the following order:

43.1. The award of the second respondent which appears in paragraph 33.2 of the arbitration Award dated 3 April 2019, is reviewed and set aside;

43.2. The award appearing in paragraph 33.2 is substituted with the following:

‘The second objection is upheld. An arbitrator acting in terms of section 12B(4)(a) of the Petroleum Products Act No. 120 of 1977 as amended, has no jurisdiction to grant patrimonial damages to a claimant in terms of Section 12B(4)(a), in this case, Mfoza. Mfoza is directed to amend its Statement of Case so as to remove the claim for patrimonial damages, and to do so within 10 days of this award’.

43.3. By virtue of the expiry of the 10 day period referred to in paragraph 43.2 of this order, Mfoza is directed to amend its statement of case within 10 days of receipt of this order by mail or such further period authorised by the second respondent or agreed to by Engen.

43.4. Mfoza is to pay the costs of this application.

___________________________

I OPPERMAN

Judge of the High Court

Gauteng Local Division, Johannesburg

Counsel for the applicant: Adv M Desai

Instructed by: Govender Patel Dladla Incorporated

For the first respondent: Mr Tyobeka

For the second respondent: No appearance

Date of hearing: 30 October 2019 & 22 September 2020

Date of Judgment: 5 October 2020

[1] Manong & Associates (Pty) Ltd v Minister of Public Works and Another, 2010 (2) SA 167 (SCA)

[2] Directing the procedure in terms of section 12B(3) of the Petroleum Products Act. I was informed that the parties were unable to agree on the rules to have application in their arbitration.

[3] In Dr Grieve v The Health Professions Council of SA, 2019 JDR 352 (GP) at para [52], it was confirmed that it is competent for incomplete proceedings to be reviewed.

[4] [2020] ZACC 13 (17 June 2020)

[5] Quoted in paragraph [8] hereof

[6] Engen Petroleum Ltd v Business Zone 1010 CC t/a Emmarentia Convenience Centre, [2015] ZASCA 176 (27 November 2015)

[7] Business Zone SCA (supra) at para [23]

[8] The Business Zone 1010 CC t/a Emmarentia Convenience Centre v Engen Petroleum Limited and Others [2017] ZACC 2

[9] Marndre Beleggings CC v Minister of Energy, case number 51067/15 delivered 22 March 2018

[10] The breakdown does not add up to R 2 812 650.35 but to R 2 742 942.68

[11] Although this claim was formulated, it does not form part of the R8 117 872.63 sought.

[12] Business Zone SCA (supra) at para [23]

[13] I express no view hereon as this is not the question which serves before me nor one which the arbitrator was called upon to answer.

[14] Bright Idea Projects 66 (Pty) Limited v Former Way Trade and Invest (Pty) Limited, 2018 (6) SA 86 (KZP) at [27]. At para [33] the D Pillay J reconfirmed Business Zone CC’s pronouncement that ‘the arbitrator’s remedial powers can go no further than correcting the contractual practice in question’.

[15] Being that after cancellation the aggrieved party was left with a claim for damages only.

[16] Keightley J’s order of 19 December 2019

[17] Of course, Keightley J’s order came after the hearing. Mfoza contended that the agreement had been cancelled in August 2016.

[18] Footnote 43 of the Business Zone CC matter.

[19] See too Marndre Beleggings CC (supra) at para [24]

[20] [1996] ZASCA 17; 1996 (3) SA 745 (AD) at 751 F-G

[21] Gcaba v Minister for Safety & Security, 2010 (1) SA 238 (CC)

[22] Group Five Building Ltd. v Government of the Republic of South Africa, Represented by Minister of Public Works and Land Affairs, 1993 (2) SA 593 (AD at para 24 - 32

[23] 1938 TPD 551 [24] At worst, it amounts to a gross irregularity by virtue of the reasoning in the quoted portion of the Goldfields Investment Ltd matter in paragraph [38] hereof.

[23] 1938 TPD 551

[24] At worst, it amounts to a gross irregularity by virtue of the reasoning in the quoted portion of the Goldfields Investment Ltd matter in paragraph [38] hereof.

[25] Paragraph 27 of the Award

[26] [1999] ZACC 9; 1999 (4) SA 147 CC at para [46] footnotes omitted emphasis provided