Shazi Developments (Pty) Ltd v Elkon Construction CC and Another (08/33274) [2009] ZAGPPHC 10 (19 March 2009)

Shazi Developments (Pty) Ltd v Elkon Construction CC and Another (08/33274) [2009] ZAGPPHC 10 (19 March 2009)

The court found that the agreement of 16 May 2007 did not cancel the original building contract or the arbitration clause, but merely amended certain terms and obligations. The arbitration agreement remained valid and binding, and the appointment of the arbitrator was properly agreed upon by both parties, both orally and in writing. The Applicant's arguments regarding procedural irregularities, forgery, and fraud were rejected as lacking merit or relevance. The Applicant failed to show good cause for release from the arbitration agreement or for staying the proceedings. The court exercised its discretion to dismiss the application and awarded costs against the Applicant and its attorney...

Citation
[2009] ZAGPPHC 10
Parties
Applicant: Shazi Developments (Pty) Ltd; Respondent: Elkon Construction CC; Respondent: Van Der Linde, Willem S.C.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 March 2009
Case Number
08/33274
Procedural Posture
Review Application / Opposed Motion; Application to Set Aside Arbitration Proceedings
Outcome
Application dismissed with costs; wasted costs of previous postponement awarded jointly and severally against Applicant and its attorney.
Judges
R D Claassen
Legal Topics
Arbitration Agreement Enforceability, Building Contract Dispute, Arbitrator Appointment, Waiver of Rights, Fraud Allegation, Costs Award
Civil Procedure Commercial and Corporate Alternative Dispute Resolution Arbitration Agreement Enforceability Building Contract Dispute Arbitrator Appointment Waiver of Rights Fraud Allegation +1 more

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Parties

Shazi Developments (Pty) Ltd

Applicant

Elkon Construction CC

Respondent

Van Der Linde, Willem S.C.

Respondent

Procedural Posture

Review Application / Opposed Motion; Application to Set Aside Arbitration Proceedings

Legal Issues

  1. 1 Whether the arbitration agreement in the building contract was cancelled by the subsequent agreement of 16 May 2007.
  2. 2 Whether the appointment of the arbitrator was valid and in accordance with the contract.
  3. 3 Whether the referral to arbitration was proper and timeous.

Ratio Decidendi

The court found that the agreement of 16 May 2007 did not cancel the original building contract or the arbitration clause, but merely amended certain terms and obligations. The arbitration agreement remained valid and binding, and the appointment of the arbitrator was properly agreed upon by both parties, both orally and in writing. The Applicant's arguments regarding procedural irregularities, forgery, and fraud were rejected as lacking merit or relevance. The Applicant failed to show good cause for release from the arbitration agreement or for staying the proceedings. The court exercised its discretion to dismiss the application and awarded costs against the Applicant and its attorney...

Court Disposition

Application dismissed with costs; wasted costs of previous postponement awarded jointly and severally against Applicant and its attorney.

Orders

  • The application, including the supplementary application, is dismissed with costs.
  • Applicant's attorney is ordered to pay the wasted costs occasioned by the previous postponement jointly and severally with the Applicant.