KH Construction CC v Jenkins and Another (3887/2016) [2017] ZAECGHC 48 (25 April 2017)

KH Construction CC v Jenkins and Another (3887/2016) [2017] ZAECGHC 48 (25 April 2017)

The court found that the applicant failed to set out sufficient factual grounds in its founding affidavit to sustain the allegations of gross irregularity or excess of powers by the arbitrator under section 33(1)(b) of the Arbitration Act 1965. The applicant's complaints regarding the arbitrator's findings on the beam, glazing, and carpets were either not properly raised in the founding affidavit or amounted to attacks on the merits rather than procedural irregularities. The court held that only the grounds stipulated in section 33(1) are available for review and that the applicant did not meet the threshold required. Accordingly, the application to set aside the arbitration award was...

Citation
[2017] ZAECGHC 48
Parties
Applicant: KH Construction CC; Respondent: Dennis Jenkins Nomine Officio; Respondent: Conrad Winterbach
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
25 April 2017
Case Number
3887/2016
Procedural Posture
Review Application / Judgment on Application to Set Aside Arbitration Award
Outcome
Application dismissed with costs, including costs occasioned by the amendment of the notice of motion.
Judges
Bloem
Legal Topics
Arbitration Act 1965, Gross Irregularity, Specific Performance, Construction Contract Dispute, Pleading Requirements
Civil Procedure Commercial and Corporate Arbitration Act 1965 Gross Irregularity Specific Performance Construction Contract Dispute Pleading Requirements

Case Brief

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Parties

KH Construction CC

Applicant

Dennis Jenkins Nomine Officio

Respondent

Conrad Winterbach

Respondent

Procedural Posture

Review Application / Judgment on Application to Set Aside Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings.
  2. 2 Whether the arbitrator exceeded his powers under section 33(1)(b) of the Arbitration Act 1965.
  3. 3 Whether the applicant's founding affidavit set out sufficient factual grounds for review under section 33(1).

Ratio Decidendi

The court found that the applicant failed to set out sufficient factual grounds in its founding affidavit to sustain the allegations of gross irregularity or excess of powers by the arbitrator under section 33(1)(b) of the Arbitration Act 1965. The applicant's complaints regarding the arbitrator's findings on the beam, glazing, and carpets were either not properly raised in the founding affidavit or amounted to attacks on the merits rather than procedural irregularities. The court held that only the grounds stipulated in section 33(1) are available for review and that the applicant did not meet the threshold required. Accordingly, the application to set aside the arbitration award was...

Court Disposition

Application dismissed with costs, including costs occasioned by the amendment of the notice of motion.

Orders

  • The application is dismissed with costs.
  • Costs to include those occasioned by the amendment of the notice of motion.