Morlite Industries CC and Another v Van Der Nest NO and Others (8160/07) [2009] ZAGPJHC 91 (10 December 2009)

Morlite Industries CC and Another v Van Der Nest NO and Others (8160/07) [2009] ZAGPJHC 91 (10 December 2009)

The court found that there was no legally enforceable agreement to substitute Sasol Chemicals for Sasol Wax as claimant in the arbitration. The minute of the pre-arbitration meeting did not constitute such an agreement, and any substitution of parties required written consent from all affected parties, which was not obtained. The arbitration agreement between Sasol Wax and the alleged debtors remained valid and in force. The arbitrator lacked jurisdiction to allow Sasol Wax to be reintroduced as a claimant, and the award made by the arbitrator was reviewed and set aside. The claim of Sasol Wax against the alleged debtors had not prescribed, as the High Court action was only removed from...

Citation
[2009] ZAGPJHC 91
Parties
Applicant: Morlite Industries CC; Applicant: Zunaid Aziz Moti; Respondent: Michael Van Der Nest N.O.; Respondent: Sasol Chemical Industries Limited; Respondent: Sasol Wax (SA) (Pty) Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 December 2009
Case Number
8160/07
Procedural Posture
Review Application / Application to Review and Set Aside Arbitration Award Under Section 33(1)(b) of the Arbitration Act
Outcome
The application to review and set aside the arbitration award is granted. The award made by the arbitrator is set aside. The arbitration agreement between Sasol Wax and the alleged debtors remains valid. The claim of Sasol Wax has not prescribed. Costs are to be costs in the arbitration.
Judges
N.P. Willis
Legal Topics
Arbitration Agreement, Jurisdiction of Arbitrator, Substitution of Parties, Prescription of Claims, Amendment of Pleadings, Extension of Time
Civil Procedure Commercial and Corporate Alternative Dispute Resolution Arbitration Agreement Jurisdiction of Arbitrator Substitution of Parties Prescription of Claims Amendment of Pleadings +1 more

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Parties

Morlite Industries CC

Applicant

Zunaid Aziz Moti

Applicant

Michael Van Der Nest N.O.

Respondent

Sasol Chemical Industries Limited

Respondent

Sasol Wax (SA) (Pty) Limited

Respondent

Procedural Posture

Review Application / Application to Review and Set Aside Arbitration Award Under Section 33(1)(b) of the Arbitration Act

Legal Issues

  1. 1 Whether the arbitrator had jurisdiction to allow the amendment introducing Sasol Wax as a claimant.
  2. 2 Whether a legally enforceable agreement existed to substitute Sasol Chemicals for Sasol Wax as claimant in the arbitration.
  3. 3 Whether the arbitration agreement between Sasol Wax and the alleged debtors was terminated or superseded.

Ratio Decidendi

The court found that there was no legally enforceable agreement to substitute Sasol Chemicals for Sasol Wax as claimant in the arbitration. The minute of the pre-arbitration meeting did not constitute such an agreement, and any substitution of parties required written consent from all affected parties, which was not obtained. The arbitration agreement between Sasol Wax and the alleged debtors remained valid and in force. The arbitrator lacked jurisdiction to allow Sasol Wax to be reintroduced as a claimant, and the award made by the arbitrator was reviewed and set aside. The claim of Sasol Wax against the alleged debtors had not prescribed, as the High Court action was only removed from...

Court Disposition

The application to review and set aside the arbitration award is granted. The award made by the arbitrator is set aside. The arbitration agreement between Sasol Wax and the alleged debtors remains valid. The claim of Sasol Wax has not prescribed. Costs are to be costs in the arbitration.

Orders

  • The award made by the arbitrator (the first respondent) on 27 January 2009 is reviewed and set aside.
  • There is no arbitration agreement in existence between Sasol Chemicals (the second respondent) and the alleged debtors (the first and second applicants).