Fikeni NO and Others v Godfrey NO and Another (1485/2017) [2018] ZAKZDHC 49 (27 September 2018)

Fikeni NO and Others v Godfrey NO and Another (1485/2017) [2018] ZAKZDHC 49 (27 September 2018)

The court held that the arbitrator did not commit a gross irregularity by considering the amendment to the statement of claim separately from the objection to the expert report. The only issue before the arbitrator was whether the amendment should be allowed, and the objection to the expert evidence was not determinative at that stage. The court further found that the arbitrator did not exceed his powers by permitting the amendment, as the parties had agreed to resolve all disputes by arbitration and had adopted rules that expressly empower the arbitrator to allow amendments. There was no express exclusion of jurisdiction in the agreement or preliminary meeting minutes, and the arbitrator...

Citation
[2018] ZAKZDHC 49
Parties
Applicant: Dr Somadoda Patrick Mayibongwe Fikeni NO; Applicant: Dr Gcwalisele Cynthia Kabanyane NO; Applicant: Moroka Isaac Butcher Matutle NO; Applicant: Zandile Quenette Lavinia Mdhladhla NO; Applicant: Mzamo Michael Mlengana NO; Applicant: Matshipsana Meriam Molala NO; Applicant: Tlohotse Enoch Motswaledi NO; Applicant: Nandisele Flavour Thoko Mpumlwana NO; Applicant: Phelisa Nkomo NO; Applicant: Rashid Amod Sadeck Patel NO; Applicant: Zakhele Alex Tummy Zitha NO; Respondent: John H Godfrey NO; Respondent: Azcon Projects CC
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
27 September 2018
Case Number
1485/2017
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs.
Judges
Vahed
Legal Topics
Arbitration Act Section 33, Gross Irregularity, Arbitrator Powers, Amendment of Pleadings, Jurisdiction of Arbitrator
Civil Procedure Alternative Dispute Resolution Arbitration Act Section 33 Gross Irregularity Arbitrator Powers Amendment of Pleadings Jurisdiction of Arbitrator

Case Brief

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Parties

Dr Somadoda Patrick Mayibongwe Fikeni NO

Applicant

Dr Gcwalisele Cynthia Kabanyane NO

Applicant

Moroka Isaac Butcher Matutle NO

Applicant

Zandile Quenette Lavinia Mdhladhla NO

Applicant

Mzamo Michael Mlengana NO

Applicant

Matshipsana Meriam Molala NO

Applicant

Tlohotse Enoch Motswaledi NO

Applicant

Nandisele Flavour Thoko Mpumlwana NO

Applicant

Phelisa Nkomo NO

Applicant

Rashid Amod Sadeck Patel NO

Applicant

Zakhele Alex Tummy Zitha NO

Applicant

John H Godfrey NO

Respondent

Azcon Projects CC

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings by considering the amendment to the statement of claim without simultaneously considering the objection to the expert report.
  2. 2 Whether the arbitrator exceeded his powers by allowing the amendment to the statement of claim to include claims not originally referred to arbitration.

Ratio Decidendi

The court held that the arbitrator did not commit a gross irregularity by considering the amendment to the statement of claim separately from the objection to the expert report. The only issue before the arbitrator was whether the amendment should be allowed, and the objection to the expert evidence was not determinative at that stage. The court further found that the arbitrator did not exceed his powers by permitting the amendment, as the parties had agreed to resolve all disputes by arbitration and had adopted rules that expressly empower the arbitrator to allow amendments. There was no express exclusion of jurisdiction in the agreement or preliminary meeting minutes, and the arbitrator...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.