Rebah Construction CC v Renkie Building Construction CC (42794/2007) [2008] ZAGPHC 34; 2008 (3) SA 475 (T) (11 February 2008)

Rebah Construction CC v Renkie Building Construction CC (42794/2007) [2008] ZAGPHC 34; 2008 (3) SA 475 (T) (11 February 2008)

The court found that the arbitrator committed a gross irregularity by granting a default award without affording the respondent an opportunity to remedy its default or to file its statement of defence. The arbitration agreement and pre-arbitration minutes did not provide for default awards, and the arbitrator acted outside the terms of reference by granting such an award. The principles of natural justice require that a party in default be placed on terms and given an opportunity to explain or remedy the default. The respondent was not unduly late in bringing its application to set aside the award, and the court exercised its discretion to extend the prescribed period. The failure to join...

Citation
[2008] ZAGPHC 34
Parties
Applicant: Rebah Construction CC; Respondent: Renkie Building Construction CC
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
11 February 2008
Case Number
42794/2007
Procedural Posture
Review Application / Application to Make Arbitration Award an Order of Court; Counter Application to Set Aside Award
Outcome
Application dismissed; default award set aside; matter referred back to arbitrator; respondent to file statement of defence within ten days; applicant to pay costs.
Judges
Seriti
Legal Topics
Arbitration Award Review, Default Judgment, Natural Justice, Joinder of Parties
Civil Procedure Commercial and Corporate Arbitration Award Review Default Judgment Natural Justice Joinder of Parties

Case Brief

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Parties

Rebah Construction CC

Applicant

Renkie Building Construction CC

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the default arbitration award should be made an order of court.
  2. 2 Whether the arbitrator committed a gross irregularity by granting a default award without affording the respondent an opportunity to remedy its default.
  3. 3 Whether the respondent's counter-application to set aside the award is fatally flawed due to non-joinder of the arbitrator.

Ratio Decidendi

The court found that the arbitrator committed a gross irregularity by granting a default award without affording the respondent an opportunity to remedy its default or to file its statement of defence. The arbitration agreement and pre-arbitration minutes did not provide for default awards, and the arbitrator acted outside the terms of reference by granting such an award. The principles of natural justice require that a party in default be placed on terms and given an opportunity to explain or remedy the default. The respondent was not unduly late in bringing its application to set aside the award, and the court exercised its discretion to extend the prescribed period. The failure to join...

Court Disposition

Application dismissed; default award set aside; matter referred back to arbitrator; respondent to file statement of defence within ten days; applicant to pay costs.

Orders

  • The application of the applicant is dismissed.
  • The default award made by the arbitrator on 30 August 2007 is set aside and the matter is referred back to the arbitrator.