K H Construction CC v Jenkins N.O. and Another (CA326/2017) [2018] ZAECGHC 37 (22 May 2018)

K H Construction CC v Jenkins N.O. and Another (CA326/2017) [2018] ZAECGHC 37 (22 May 2018)

The court found that the arbitrator committed a gross irregularity by accepting and relying on the second respondent's untested evidence after he abandoned cross-examination, thereby denying the appellant a fair opportunity to challenge material aspects of the case. This conduct prevented a fair trial of the issues and resulted in manifest prejudice to the appellant. Furthermore, the arbitrator exceeded his powers by awarding specific performance when only damages were pleaded and sought by the second respondent, without affording the parties an opportunity to address this relief. The appellant's founding affidavit laid a sufficient factual basis for review under section 33(1)(b) of the...

Citation
[2018] ZAECGHC 37
Parties
Appellant: K H Construction CC; Respondent: Dennis Jenkins N.O.; Respondent: Conrad Winterbach
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
22 May 2018
Case Number
CA326/2017
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Application to Set Aside Arbitration Award
Outcome
Appeal upheld; arbitration award set aside; dispute referred to new arbitrator.
Judges
Pickering, Chetty, Tokota
Legal Topics
Arbitration Act Review, Gross Irregularity, Specific Performance, Cross Examination Rights, Arbitrator Exceeding Powers
Civil Procedure Commercial and Corporate Arbitration Act Review Gross Irregularity Specific Performance Cross Examination Rights Arbitrator Exceeding Powers

Case Brief

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Parties

K H Construction CC

Appellant

Dennis Jenkins N.O.

Respondent

Conrad Winterbach

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Application to Set Aside Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity by relying on untested evidence after the second respondent abandoned cross-examination.
  2. 2 Whether the arbitrator exceeded his powers by awarding specific performance when only damages were claimed.
  3. 3 Whether the appellant laid a sufficient factual basis for review under section 33(1)(b) of the Arbitration Act.

Ratio Decidendi

The court found that the arbitrator committed a gross irregularity by accepting and relying on the second respondent's untested evidence after he abandoned cross-examination, thereby denying the appellant a fair opportunity to challenge material aspects of the case. This conduct prevented a fair trial of the issues and resulted in manifest prejudice to the appellant. Furthermore, the arbitrator exceeded his powers by awarding specific performance when only damages were pleaded and sought by the second respondent, without affording the parties an opportunity to address this relief. The appellant's founding affidavit laid a sufficient factual basis for review under section 33(1)(b) of the...

Court Disposition

Appeal upheld; arbitration award set aside; dispute referred to new arbitrator.

Orders

  • The appeal succeeds with costs.
  • The order of the court a quo is set aside and substituted with an order reviewing and setting aside the arbitration award dated 23 June 2016 and released on 10 July 2016.