Irwing Construction 514 CC v Pienaar and Others (62030/12) [2015] ZAGPPHC 850 (18 December 2015)

Irwing Construction 514 CC v Pienaar and Others (62030/12) [2015] ZAGPPHC 850 (18 December 2015)

The court found that the arbitrator misconceived the nature of his function by failing to interpret and apply the relevant terms of the JBCC agreement to the facts, instead relying on general principles of contract law for cancellation. This amounted to a gross irregularity under section 33(1)(b) of the Arbitration...

Source-derived case information.

Citation
[2015] ZAGPPHC 850
Parties
Applicant: Irwing Construction 514 CC; Respondent: J L E F Pienaar; Respondent: C H Botoulas; Respondent: S B Botoulas
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 December 2015
Case Number
62030/12
Procedural Posture
Review Application / Judgment on Application to Set Aside Arbitration Awards
Outcome
Application for review and setting aside of arbitration awards granted; application for condonation dismissed.
Judges
A B Rossouw
Legal Topics
Arbitration Act 42 of 1965, Gross Irregularity, Misconduct of Arbitrator, Construction Contracts, Jbcc Agreement, Condonation
Civil Procedure Commercial and Corporate Arbitration Act 42 of 1965 Gross Irregularity Misconduct of Arbitrator Construction Contracts Jbcc Agreement Condonation

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Summary, issues, holding and outcome

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Parties

Irwing Construction 514 CC

Applicant

J L E F Pienaar

Respondent

C H Botoulas

Respondent

S B Botoulas

Respondent

Procedural Posture

Review Application / Judgment on Application to Set Aside Arbitration Awards

Legal Issues

  1. 1 Whether the arbitrator committed gross irregularity or misconduct in the conduct of the arbitration proceedings.
  2. 2 Whether the interim and final arbitration awards should be set aside under section 33(1) of the Arbitration Act 42 of 1965.
  3. 3 Whether the application for review was brought within the prescribed time limits under section 33(2) of the Arbitration Act.

Ratio Decidendi

The court found that the arbitrator misconceived the nature of his function by failing to interpret and apply the relevant terms of the JBCC agreement to the facts, instead relying on general principles of contract law for cancellation. This amounted to a gross irregularity under section 33(1)(b) of the Arbitration Act, as the arbitrator did not direct his mind to the issues he was duty bound to decide. The interim award was not an award proper but merely a decision, yet both the interim and final awards were set aside to avoid uncertainty. The application for condonation for the late filing of the replying affidavit was dismissed due to unreasonable delay and lack of good cause. The...

Court Disposition

Application for review and setting aside of arbitration awards granted; application for condonation dismissed.

Orders

  • The applicant's application for condonation for the late filing of its replying affidavit is dismissed.
  • The interim award made by the first respondent on 6 September 2011 is set aside.