Schoeman v Makate and Others (55832/16) [2018] ZAGPPHC 734 (31 August 2018)

Schoeman v Makate and Others (55832/16) [2018] ZAGPPHC 734 (31 August 2018)

The court found that no good cause was shown to set aside the arbitration agreement or to vary the prior consent order. The applicant's concerns regarding the appointed attorney were unfounded, as she was in good standing and no evidence of misconduct was presented. The attempt to substitute the attorney with a firm possessing higher indemnity insurance was not justified by the terms of the prior order or by any demonstrated risk. The court further held that it lacked the power to impose a new settlement agreement on the parties or to grant interim relief pending an action when the parties had agreed to arbitration. The application to strike out evidence was dismissed as the evidence was...

Citation
[2018] ZAGPPHC 734
Parties
Applicant: Chriitian Schoisman; Respondent: Kenneth Nkosana Makate; Respondent: Chairperson of the Pretoria Bar Council; Respondent: Raining Men Trade (Pty) Ltd; Respondent: Umika Gopichund Attorneys; Respondent: Mogoboya Dooling Associates; Respondent: Nyika Walter Boloyi; Respondent: Stemela & Lubbe Inc
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 August 2018
Case Number
55832/16
Procedural Posture
Urgent Application / Application to Set Aside Arbitration Agreement and Vary Prior Consent Order
Outcome
The main application is dismissed with costs, including costs for two counsel. The application to strike out is dismissed with costs. The counter-application for vexatious litigation is dismissed with costs. No order is made regarding reserved costs.
Judges
Tuchten
Legal Topics
Arbitration Agreement, Variation of Court Order, Funding Agreement Dispute, Interim Relief, Vexatious Litigation
Civil Procedure Commercial and Corporate Arbitration Agreement Variation of Court Order Funding Agreement Dispute Interim Relief Vexatious Litigation

Case Brief

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Parties

Chriitian Schoisman

Applicant

Kenneth Nkosana Makate

Respondent

Chairperson of the Pretoria Bar Council

Respondent

Raining Men Trade (Pty) Ltd

Respondent

Umika Gopichund Attorneys

Respondent

Mogoboya Dooling Associates

Respondent

Nyika Walter Boloyi

Respondent

Stemela & Lubbe Inc

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Arbitration Agreement and Vary Prior Consent Order

Legal Issues

  1. 1 Whether the arbitration agreement between the parties should be set aside under section 3(2) of the Arbitration Act.
  2. 2 Whether the prior consent order can be varied to substitute the appointed attorney holding funds with another firm with higher indemnity insurance.
  3. 3 Whether the applicant's application to strike out evidence and the respondent's counter-application to declare the applicant a vexatious litigant should succeed.

Ratio Decidendi

The court found that no good cause was shown to set aside the arbitration agreement or to vary the prior consent order. The applicant's concerns regarding the appointed attorney were unfounded, as she was in good standing and no evidence of misconduct was presented. The attempt to substitute the attorney with a firm possessing higher indemnity insurance was not justified by the terms of the prior order or by any demonstrated risk. The court further held that it lacked the power to impose a new settlement agreement on the parties or to grant interim relief pending an action when the parties had agreed to arbitration. The application to strike out evidence was dismissed as the evidence was...

Court Disposition

The main application is dismissed with costs, including costs for two counsel. The application to strike out is dismissed with costs. The counter-application for vexatious litigation is dismissed with costs. No order is made regarding reserved costs.

Orders

  • The main application brought by notice of motion dated 13 July 2016 is dismissed with costs, including costs consequent upon the employment of two counsel.
  • The applicant's application to strike out is dismissed with costs, including costs consequent upon the employment of two counsel.