Icon Earthworks (Pty) Ltd v Caliber 293 (Pty) Ltd and Another (10086/2019) [2020] ZAGPPHC 661 (28 October 2020)

Icon Earthworks (Pty) Ltd v Caliber 293 (Pty) Ltd and Another (10086/2019) [2020] ZAGPPHC 661 (28 October 2020)

The court held that the grounds advanced by the applicant, including alleged errors in findings and failure to resolve factual disputes, do not constitute misconduct or gross irregularity as contemplated by section 33(1) of the Arbitration Act. The arbitrator engaged in the correct inquiry, followed the procedure agreed by the parties, and considered all relevant evidence. Errors of fact or law, even if present, are not reviewable but may be subject to appeal if the parties so agree. The applicant failed to demonstrate any procedural irregularity or misconduct justifying the setting aside of the award. The application for review was accordingly dismissed, and costs awarded to the first...

Citation
[2020] ZAGPPHC 661
Parties
Applicant: Icon Earthworks (Pty) Ltd; Respondent: Caliber 293 (Pty) Ltd; Respondent: E. L. Goldstein N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 October 2020
Case Number
10086/2019
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs awarded to the first respondent, including costs of senior counsel.
Judges
G.T. Avvakoumides
Legal Topics
Arbitration Act Section 33, Gross Irregularity, Misconduct of Arbitrator, Party Autonomy, Finality of Arbitral Award
Alternative Dispute Resolution Civil Procedure Arbitration Act Section 33 Gross Irregularity Misconduct of Arbitrator Party Autonomy Finality of Arbitral Award

Case Brief

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Parties

Icon Earthworks (Pty) Ltd

Applicant

Caliber 293 (Pty) Ltd

Respondent

E. L. Goldstein N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator misconducted himself in relation to his duties.
  2. 2 Whether the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings or exceeded his powers.
  3. 3 Whether the arbitrator made findings about a contract not pleaded and failed to grant opportunity for argument to the parties.

Ratio Decidendi

The court held that the grounds advanced by the applicant, including alleged errors in findings and failure to resolve factual disputes, do not constitute misconduct or gross irregularity as contemplated by section 33(1) of the Arbitration Act. The arbitrator engaged in the correct inquiry, followed the procedure agreed by the parties, and considered all relevant evidence. Errors of fact or law, even if present, are not reviewable but may be subject to appeal if the parties so agree. The applicant failed to demonstrate any procedural irregularity or misconduct justifying the setting aside of the award. The application for review was accordingly dismissed, and costs awarded to the first...

Court Disposition

Application dismissed with costs awarded to the first respondent, including costs of senior counsel.

Orders

  • The application is dismissed.
  • The applicant shall pay the first respondent's costs, including the costs of employment of senior counsel.