Neil Harvey & Associates (Pty) Ltd v Medscheme Holdings (Pty) Ltd and Others (621/10) [2011] ZASCA 75 (26 May 2011)

Parties

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court (johannesburg)

Legal Issues

1. 1 Whether the arbitrator should be removed for good cause under s 13(2)(a) of the Arbitration Act 42 of 1965.
2. 2 Whether proceedings conducted in the absence of a party constituted a gross irregularity.
3. 3 Whether there was a reasonable apprehension of bias on the part of the arbitrator.

Ratio Decidendi

The Supreme Court of Appeal held that the meeting between NHA, ITQ, and the arbitrator did not constitute a gross irregularity nor did it give rise to a reasonable apprehension of bias. The arbitrator made no rulings, received no evidence, and did not consider the merits of the main arbitration in the absence of the respondents. The respondents' rights and interests were not prejudiced, and the arbitrator acted in good faith under the impression that all parties were aware of the meeting. The court found that the underlying purpose of procedural rules is to protect parties' rights, but where no rights or interests are affected, no irregularity occurs. The appeal was allowed, and the...

Court Disposition

Appeal allowed; order of the court a quo set aside and substituted with dismissal of the application for removal of the arbitrator.

Orders

• The appeal is allowed with costs, including the costs of two counsel.
• The order of the court a quo is set aside.