Kroon and Another v Rens and Another (1331/2011) [2012] ZAECGHC 49 (14 June 2012)

Kroon and Another v Rens and Another (1331/2011) [2012] ZAECGHC 49 (14 June 2012)

The court found that the arbitrator, Rens, failed to disclose his prior advisory relationship with Hawkins, which created a reasonable apprehension of bias in the eyes of the applicants. This omission constituted misconduct under section 33(1) of the Arbitration Act. Additionally, Rens' amendments to the award after becoming functus officio and his decision to ignore the express terms of the contract in favour of an arbitrary method further supported the applicants' grounds for review. The court held that the statutory requirements for setting aside the award were met and that the applicants' delay in instituting proceedings should be condoned due to the limited extent of the delay and...

Citation
[2012] ZAECGHC 49
Parties
Applicant: Simon Bruce Kroon; Applicant: Belinda Marion Kroon; Respondent: Ray Rens, Nomino Officio; Respondent: Siraykin CC t/a Hawkins Homes
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
14 June 2012
Case Number
1331/2011
Procedural Posture
Review Application / Judgment
Outcome
Application granted; arbitration awards set aside; costs awarded to applicants.
Judges
J.E Smith
Legal Topics
Arbitration Review, Arbitrator Bias, Misconduct in Arbitration, Contractual Amendment, Functus Officio
Alternative Dispute Resolution Commercial and Corporate Arbitration Review Arbitrator Bias Misconduct in Arbitration Contractual Amendment Functus Officio

Case Brief

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Parties

Simon Bruce Kroon

Applicant

Belinda Marion Kroon

Applicant

Ray Rens, Nomino Officio

Respondent

Siraykin CC t/a Hawkins Homes

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator's prior relationship with one party created a reasonable apprehension of bias warranting setting aside the award.
  2. 2 Whether the arbitrator exceeded his powers or committed misconduct by amending his award after becoming functus officio.
  3. 3 Whether the arbitrator ignored the express terms of the contract and adopted an arbitrary method for determining the amount payable.

Ratio Decidendi

The court found that the arbitrator, Rens, failed to disclose his prior advisory relationship with Hawkins, which created a reasonable apprehension of bias in the eyes of the applicants. This omission constituted misconduct under section 33(1) of the Arbitration Act. Additionally, Rens' amendments to the award after becoming functus officio and his decision to ignore the express terms of the contract in favour of an arbitrary method further supported the applicants' grounds for review. The court held that the statutory requirements for setting aside the award were met and that the applicants' delay in instituting proceedings should be condoned due to the limited extent of the delay and...

Court Disposition

Application granted; arbitration awards set aside; costs awarded to applicants.

Orders

  • The applicants’ failure to institute proceedings within six weeks is condoned and the period is extended.
  • The arbitration awards issued by the First Respondent on 9 February 2011, 30 March 2011, and 16 August 2011 are set aside.