Pop-up Trading 39 (Pty) Ltd and Others v Super Group Holdings (Pty) Limited and Another (14544/2020) [2021] ZAGPJHC 575 (20 October 2021)

Pop-up Trading 39 (Pty) Ltd and Others v Super Group Holdings (Pty) Limited and Another (14544/2020) [2021] ZAGPJHC 575 (20 October 2021)

The court found that the arbitrator committed a gross irregularity by ignoring the express terms of the Sale of Shares Agreement, which required disputes regarding the calculation of the average profit after tax to be referred to an independent expert, not determined by the arbitrator. The arbitrator's reliance on oral evidence from non-experts and failure to follow the agreed contractual mechanism deprived the applicants of a fair hearing and constituted an excess of powers. There was no waiver of rights by the applicants, as their conduct and submissions consistently asserted the need to follow the contractual process. The arbitration award was therefore invalid and had to be set aside....

Citation
[2021] ZAGPJHC 575
Parties
Applicant: Pop-up Trading 39 (Pty) Ltd; Applicant: Zustonelli Limited BVI; Applicant: Anthony Richard Pinfold; Respondent: Super Group Holdings (Pty) Limited; Respondent: Kevin Trisk SC N.O. (As Arbitrator)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 October 2021
Case Number
14544/2020
Procedural Posture
Review Application / Judgment
Outcome
Application for review and setting aside of the arbitration award is granted; the arbitration award is reviewed and set aside; the respondent's counter-application is dismissed.
Judges
Twala M L
Legal Topics
Arbitration Review, Gross Irregularity, Contractual Interpretation, Party Autonomy, Claw Back Mechanism
Alternative Dispute Resolution Commercial and Corporate Arbitration Review Gross Irregularity Contractual Interpretation Party Autonomy Claw Back Mechanism

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Parties

Pop-up Trading 39 (Pty) Ltd

Applicant

Zustonelli Limited BVI

Applicant

Anthony Richard Pinfold

Applicant

Super Group Holdings (Pty) Limited

Respondent

Kevin Trisk SC N.O. (As Arbitrator)

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator committed a reviewable irregularity under section 33(1)(b) of the Arbitration Act.
  2. 2 Whether the arbitrator exceeded his powers by determining the claw-back amount without following the contractual mechanism.
  3. 3 Whether the parties waived their rights to the expert determination process under the Sale of Shares Agreement.

Ratio Decidendi

The court found that the arbitrator committed a gross irregularity by ignoring the express terms of the Sale of Shares Agreement, which required disputes regarding the calculation of the average profit after tax to be referred to an independent expert, not determined by the arbitrator. The arbitrator's reliance on oral evidence from non-experts and failure to follow the agreed contractual mechanism deprived the applicants of a fair hearing and constituted an excess of powers. There was no waiver of rights by the applicants, as their conduct and submissions consistently asserted the need to follow the contractual process. The arbitration award was therefore invalid and had to be set aside....

Court Disposition

Application for review and setting aside of the arbitration award is granted; the arbitration award is reviewed and set aside; the respondent's counter-application is dismissed.

Orders

  • The arbitration award published and as corrected on 28 May 2020 is reviewed and set aside.
  • The counter application of the first respondent is dismissed.