KW Plant Hire CC and Another v Ahier and Another (2672/2008) [2009] ZAECGHC 41 (30 June 2009)

KW Plant Hire CC and Another v Ahier and Another (2672/2008) [2009] ZAECGHC 41 (30 June 2009)

The court found that the applicants failed to establish misconduct or gross irregularity on the part of the arbitrator. The record showed that the applicants had full opportunity to present their case, including arguments on the applicability of Clause 51 of the contract. The arbitrator provided adequate reasons for his award, and the applicants' dissatisfaction stemmed from the outcome rather than any procedural unfairness. The court held that the review application was, in substance, a disguised appeal, which is not permissible under the Arbitration Act. The arbitrator's failure to file an opposing affidavit did not warrant an adverse inference, as he had furnished sufficient reasons...

Citation
[2009] ZAECGHC 41
Parties
Applicant: KW Plant Hire CC; Applicant: Inkonka Contruction CC; Respondent: T B C Ahier; Respondent: Member of the Executive Council of the Department of Roads and Transport (Eastern Cape Province)
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
30 June 2009
Case Number
2672/2008
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs, including the costs of two counsel.
Judges
D. Chetty
Legal Topics
Arbitration Act 42 of 1965, Review of Arbitral Award, Gross Irregularity, Misconduct of Arbitrator, Time Barring of Claims
Alternative Dispute Resolution Civil Procedure Arbitration Act 42 of 1965 Review of Arbitral Award Gross Irregularity Misconduct of Arbitrator Time Barring of Claims

Case Brief

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Parties

KW Plant Hire CC

Applicant

Inkonka Contruction CC

Applicant

T B C Ahier

Respondent

Member of the Executive Council of the Department of Roads and Transport (Eastern Cape Province)

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator committed misconduct or a gross irregularity in the conduct of the arbitration proceedings.
  2. 2 Whether the arbitrator failed to consider material evidence, amounting to misconduct under section 33 of the Arbitration Act.
  3. 3 Whether the applicants were denied fair administrative justice during the arbitration.

Ratio Decidendi

The court found that the applicants failed to establish misconduct or gross irregularity on the part of the arbitrator. The record showed that the applicants had full opportunity to present their case, including arguments on the applicability of Clause 51 of the contract. The arbitrator provided adequate reasons for his award, and the applicants' dissatisfaction stemmed from the outcome rather than any procedural unfairness. The court held that the review application was, in substance, a disguised appeal, which is not permissible under the Arbitration Act. The arbitrator's failure to file an opposing affidavit did not warrant an adverse inference, as he had furnished sufficient reasons...

Court Disposition

Application dismissed with costs, including the costs of two counsel.

Orders

  • The application is dismissed with costs, such costs to include the costs of two counsel.