Hyde Construction CC v Deuchar Family Trust and Another (12471/2012; A460/2013) [2014] ZAWCHC 118; 2015 (5) SA 388 (WCC) (11 August 2014)

Hyde Construction CC v Deuchar Family Trust and Another (12471/2012; A460/2013) [2014] ZAWCHC 118; 2015 (5) SA 388 (WCC) (11 August 2014)

The court held that the Deuchar Family Trust was properly before the court as applicant because any deficiency in authority at the time of institution was cured by subsequent ratification by all trustees, who held the requisite letters of authority. The trust deed required a minimum of three trustees, and at all relevant times, four trustees with authority existed, so there was no incapacity. The court distinguished between lack of authority, which may be ratified, and lack of capacity, which cannot. The citation of the trust by name was accepted as a reference to the trustees for the time being, and no objection was raised to this mode of citation. Regarding the removal procedure, the...

Citation
[2014] ZAWCHC 118
Parties
Appellant: Hyde Construction CC; Respondent: Deuchar Family Trust; Respondent: Tertius Du Toit
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 August 2014
Case Number
12471/2012; A460/2013
Procedural Posture
Civil Appeal / Appeal From High Court Judgment Removing Arbitrator
Outcome
Appeal dismissed. Orders of the court a quo confirmed.
Judges
Traverso, Bozalek, Rogers
Legal Topics
Arbitrator Removal, Trustee Authority, Ratification of Proceedings, Arbitration Act, Waiver of Statutory Rights
Civil Procedure Alternative Dispute Resolution Arbitrator Removal Trustee Authority Ratification of Proceedings Arbitration Act Waiver of Statutory Rights

Case Brief

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Parties

Hyde Construction CC

Appellant

Deuchar Family Trust

Respondent

Tertius Du Toit

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment Removing Arbitrator

Legal Issues

  1. 1 Whether the Deuchar Family Trust was properly before the court as applicant.
  2. 2 Whether the arbitration agreement or rules excluded the statutory right to apply for removal of an arbitrator under s 13(2) of the Arbitration Act.
  3. 3 Whether there were sufficient grounds for the removal of Du Toit as arbitrator.

Ratio Decidendi

The court held that the Deuchar Family Trust was properly before the court as applicant because any deficiency in authority at the time of institution was cured by subsequent ratification by all trustees, who held the requisite letters of authority. The trust deed required a minimum of three trustees, and at all relevant times, four trustees with authority existed, so there was no incapacity. The court distinguished between lack of authority, which may be ratified, and lack of capacity, which cannot. The citation of the trust by name was accepted as a reference to the trustees for the time being, and no objection was raised to this mode of citation. Regarding the removal procedure, the...

Court Disposition

Appeal dismissed. Orders of the court a quo confirmed.

Orders

  • Du Toit’s appointment as arbitrator is set aside.
  • Du Toit is not entitled to any remuneration for his services as arbitrator.