NV Properties (Pty) Limited v Myburgh N.O and Another (10409/2022) [2024] ZAGPJHC 704 (22 July 2024)
The court considered whether the arbitrator committed a gross irregularity or exceeded his powers in terms of section 33(1)(b) of the Arbitration Act. The applicant failed to demonstrate that the arbitrator's conduct amounted to a gross irregularity or that he exceeded his powers. The court found that the alleged...
Source-derived case information.
- Citation
- [2024] ZAGPJHC 704
- Parties
- Applicant: NV Properties (Pty) Limited; Respondent: Gary Stephen Myburgh N.O; Respondent: Radon Projects (Pty) Limited
- Court
- South Gauteng High Court, Johannesburg
- Jurisdiction
- South Africa
- Case Number
- 10409/2022
- Procedural Posture
- Review Application / Judgment on Review and Counter Application
- Outcome
- The review application is dismissed. The counter-application is granted.
- Judges
- Mdalana-Mayisela
- Legal Topics
- Arbitration Act Review, Gross Irregularity, Arbitrator Powers, Award Correction, Vat Calculation Error
Source-derived case record
Summary, issues, holding and outcome
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Parties
NV Properties (Pty) Limited
Applicant
Gary Stephen Myburgh N.O
Respondent
Radon Projects (Pty) Limited
Respondent
Procedural Posture
Review Application / Judgment on Review and Counter Application
Legal Issues
- 1 Whether the arbitrator committed a gross irregularity or exceeded his powers under section 33(1)(b) of the Arbitration Act.
- 2 Whether the arbitration award should be set aside, corrected, or made an order of court.
- 3 Whether the clerical mistake or patent error in the calculation of VAT in the arbitration award should be corrected.
Ratio Decidendi
The court considered whether the arbitrator committed a gross irregularity or exceeded his powers in terms of section 33(1)(b) of the Arbitration Act. The applicant failed to demonstrate that the arbitrator's conduct amounted to a gross irregularity or that he exceeded his powers. The court found that the alleged errors did not justify setting aside the award. Regarding the counter-application, the court accepted that there was a clerical mistake or patent error in the calculation of VAT in the arbitration award and that it should be corrected. The court further found that the requirements for making the arbitration award an order of court under section 31(1) of the Arbitration Act were...
Court Disposition
The review application is dismissed. The counter-application is granted.
Orders
- The applicant's application to review and set aside the arbitration award is dismissed.
- The clerical mistake or patent error in the calculation of VAT in paragraph 44(a) of the final arbitration award is corrected.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 10409/2022
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: YES
22 July 2024
In the matter between:
N V PROPERTIES (PTY) LIMITED
Applicant
and
GARY STEPHEN MYBURGH N.O
First Respondent
RADON PROJECTS (PTY) LIMITED
Second Respondent
Judgment
Mdalana-Mayisela J
Introduction
[1] This is an application to review and set aside the arbitration award made by the first respondent and published on 2 February 2022 (“final arbitration award”) in his capacity as the arbitrator in arbitration proceedings between the applicant (employer and defendant in the arbitration proceedings) and second respondent (contractor and claimant in the arbitration proceedings). The ground of the review is that the first respondent committed a gross irregularity in the conduct of the arbitration proceedings and/or exceeded his powers as contemplated in section 33(1)(b) of the Arbitration Act, No. 42 of 1965 (“the Arbitration Act”).
[2] The applicant also seeks the order replacing the first respondent as the arbitrator in the arbitration proceedings with another arbitrator to be appointed in accordance with the method specified in clause 41.7.4 of the construction contract which is the subject of the arbitration proceedings; and the order correcting the arbitration award.
[3] The second respondent is opposing the review application and has filed a counter - application in terms of Rule 6(7) of the Uniform Rules of Court seeking the order that the Court in terms of section 31(2) of the Arbitration Act corrects the clerical mistake or patent error in the calculation of VAT in paragraph 44(a) of the final arbitration award; and the order making the final arbitration award an order of court in terms of section 31(1) of the Arbitration Act.
[1](1276/2022)[2024] ZASCA 8 (26 January 2024).
[2] 2007 (3) SA 266 (SCA).
[3][1996] ZASCA 21; 1996 (3) SA 355 (A) at 362E-I.
[4] Bester v Easigas (Pty) Ltd and Another 1993 (1) SA 30 C at 43B-D.
[5] Hos+Med Medical Aid Scheme v Thebe Ya Bophelo Healthcare Marketing & Consulting (Pty) Ltd and Others [2007] ZASCA 163; 2008 (2) SA 608 (SCA) at paras 28 & 30.
[6] Hanger v Regal and Another 2015 (3) SA 115 (FS) at para 10-11.