Pro-Khaya Construction CC v Independent Development Trust (3065/2015) [2016] ZAECPEHC 10; [2016] 2 All SA 909 (ECP) (22 March 2016)

Pro-Khaya Construction CC v Independent Development Trust (3065/2015) [2016] ZAECPEHC 10; [2016] 2 All SA 909 (ECP) (22 March 2016)

The court found that there was a valid and consensual agreement between the parties, through their attorneys, to refer all disputes—including those in the High Court action and costs—to arbitration. The respondent's denial of participation and knowledge was rejected as untenable, given the correspondence and conduct of its attorneys. The citation of the Trust was condoned as all trustees were effectively before the court. The arbitrator acted within his powers, permitted procedural amendments, and applied the correct interest rate as per the JBCC agreement and legislation. The Trust failed to establish any grounds for setting aside the award under section 33(1) of the Arbitration Act. The...

Citation
[2016] ZAECPEHC 10
Parties
Applicant: Pro-Khaya Construction CC; Respondent: The Trustees for the time being of The Independent Development Trust
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
22 March 2016
Case Number
3065/2015
Procedural Posture
Urgent Application / Application to Make Arbitration Award an Order of Court; Counter Application to Set Aside Award
Outcome
Application granted; arbitration award made an order of court. Counter-application dismissed with costs.
Judges
J M Roberson
Legal Topics
Arbitration Act 1965, Principal Building Agreement, Default Arbitration Award, Interest on Judgments, Costs Award, Lis Alibi Pendens
Civil Procedure Commercial and Corporate Alternative Dispute Resolution Arbitration Act 1965 Principal Building Agreement Default Arbitration Award Interest on Judgments Costs Award +1 more

Case Brief

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Parties

Pro-Khaya Construction CC

Applicant

The Trustees for the time being of The Independent Development Trust

Respondent

Procedural Posture

Urgent Application / Application to Make Arbitration Award an Order of Court; Counter Application to Set Aside Award

Legal Issues

  1. 1 Whether the arbitration award should be made an order of court under section 31(1) of the Arbitration Act 42 of 1965.
  2. 2 Whether the respondent was properly cited and before the court.
  3. 3 Whether there was a valid agreement to refer the disputes to arbitration.

Ratio Decidendi

The court found that there was a valid and consensual agreement between the parties, through their attorneys, to refer all disputes—including those in the High Court action and costs—to arbitration. The respondent's denial of participation and knowledge was rejected as untenable, given the correspondence and conduct of its attorneys. The citation of the Trust was condoned as all trustees were effectively before the court. The arbitrator acted within his powers, permitted procedural amendments, and applied the correct interest rate as per the JBCC agreement and legislation. The Trust failed to establish any grounds for setting aside the award under section 33(1) of the Arbitration Act. The...

Court Disposition

Application granted; arbitration award made an order of court. Counter-application dismissed with costs.

Orders

  • The arbitration award of Mr Kevin Trisk SC published on 27 July 2015 is made an order of court under section 31(1) of the Arbitration Act 42 of 1965.
  • The respondent is to pay the applicant R10,877,268.58.