OCA Testing and Certification South Africa (Pty) Ltd v KCEC Engineering Construction (Pty) Ltd and Another (1226/2021) [2023] ZASCA 13 (17 February 2023)

OCA Testing and Certification South Africa (Pty) Ltd v KCEC Engineering Construction (Pty) Ltd and Another (1226/2021) [2023] ZASCA 13 (17 February 2023)

The Supreme Court of Appeal found that the arbitrator failed to determine the fate of the claims arising from the second and third agreements, despite having dismissed the claim under the first agreement and found the defences to the other claims unsustainable. This omission prevented a fair trial of the issues and constituted a gross irregularity under section 33(1)(b) of the Arbitration Act 42 of 1965. The Court held that only the portion of the award relating to the second and third agreements should be set aside, and the dispute on those claims should be remitted to a new arbitrator. The interests of justice required that the matter be heard afresh by an arbitrator unconnected to the...

Citation
[2023] ZASCA 13
Parties
Appellant: OCA Testing and Certification South Africa (Pty) Ltd; Respondent: KCEC Engineering and Construction (Pty) Ltd; Respondent: N P Willis N O
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
17 February 2023
Case Number
1226/2021
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg
Outcome
Appeal upheld. The order of the High Court is set aside and substituted. The dispute regarding the residue of the claim under the second and third agreements is referred to a new arbitrator. No order as to costs.
Judges
Petse, Mocumie, Carelse, Mjali, Masipa
Legal Topics
Arbitration Act 1965, Gross Irregularity, Setting Aside Arbitral Award, Remittal to New Arbitrator, Contractual Dispute
Alternative Dispute Resolution Commercial and Corporate Arbitration Act 1965 Gross Irregularity Setting Aside Arbitral Award Remittal to New Arbitrator Contractual Dispute

Case Brief

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Parties

OCA Testing and Certification South Africa (Pty) Ltd

Appellant

KCEC Engineering and Construction (Pty) Ltd

Respondent

N P Willis N O

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the arbitrator's failure to determine the fate of claims under the second and third agreements constitutes a gross irregularity under section 33(1) of the Arbitration Act 42 of 1965.
  2. 2 Whether the arbitral award should be set aside in part and the residue of the claim referred to a new arbitrator.
  3. 3 Whether the arbitrator's conduct prevented a fair trial of the issues.

Ratio Decidendi

The Supreme Court of Appeal found that the arbitrator failed to determine the fate of the claims arising from the second and third agreements, despite having dismissed the claim under the first agreement and found the defences to the other claims unsustainable. This omission prevented a fair trial of the issues and constituted a gross irregularity under section 33(1)(b) of the Arbitration Act 42 of 1965. The Court held that only the portion of the award relating to the second and third agreements should be set aside, and the dispute on those claims should be remitted to a new arbitrator. The interests of justice required that the matter be heard afresh by an arbitrator unconnected to the...

Court Disposition

Appeal upheld. The order of the High Court is set aside and substituted. The dispute regarding the residue of the claim under the second and third agreements is referred to a new arbitrator. No order as to costs.

Orders

  • The appeal is upheld with no order as to costs.
  • The order of the Gauteng Division of the High Court, Johannesburg, is set aside and substituted with: (1) The application to set aside the award insofar as it relates to the amounts claimed in respect of the second and third agreements succeeds. (2) The dispute between the parties in relation to the residue of the...