Sutil NO v Matsepe NO and Ander (3480/2012) [2012] ZAFSHC 225 (6 December 2012)

Sutil NO v Matsepe NO and Ander (3480/2012) [2012] ZAFSHC 225 (6 December 2012)

The court found that the applicant failed to discharge the burden of proving a reasonable perception of bias on the part of the arbitrator. The arbitrator's prior reading of the transcript, which may be inadmissible, does not in itself constitute good cause for removal, especially given the arbitrator's experience and assurance that he can disregard inadmissible material. The arbitration agreement's requirement for the application of general principles of civil procedure and evidence does not justify setting aside the appointment in the absence of objective evidence of partiality. The application was accordingly dismissed with costs.

Citation
[2012] ZAFSHC 225
Parties
Applicant: Gorete Teixeira Sutil N.O.; Respondent: Tsui Vincent Matsepe N.O.; Respondent: A.P. Beckley N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 December 2012
Case Number
3480/2012
Procedural Posture
Urgent Application / Application for Setting Aside Appointment of Arbitrator Under Section 13(2)(a) of the Arbitration Act
Outcome
Application dismissed with costs.
Judges
C.H.G. van der Merwe, R
Legal Topics
Arbitration Act Section 13, Impartiality of Arbitrator, Admissibility of Evidence, Specific Performance
Civil Procedure Alternative Dispute Resolution Arbitration Act Section 13 Impartiality of Arbitrator Admissibility of Evidence Specific Performance

Case Brief

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Parties

Gorete Teixeira Sutil N.O.

Applicant

Tsui Vincent Matsepe N.O.

Respondent

A.P. Beckley N.O.

Respondent

Procedural Posture

Urgent Application / Application for Setting Aside Appointment of Arbitrator Under Section 13(2)(a) of the Arbitration Act

Legal Issues

  1. 1 Whether the appointment of the arbitrator should be set aside under section 13(2)(a) of the Arbitration Act due to alleged partiality.
  2. 2 Whether the arbitrator's prior reading of potentially inadmissible evidence (the transcript of an insolvency inquiry) constitutes a ground for removal.
  3. 3 Whether the applicant has established a reasonable perception of bias or failure of specific performance of the arbitration agreement.

Ratio Decidendi

The court found that the applicant failed to discharge the burden of proving a reasonable perception of bias on the part of the arbitrator. The arbitrator's prior reading of the transcript, which may be inadmissible, does not in itself constitute good cause for removal, especially given the arbitrator's experience and assurance that he can disregard inadmissible material. The arbitration agreement's requirement for the application of general principles of civil procedure and evidence does not justify setting aside the appointment in the absence of objective evidence of partiality. The application was accordingly dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application to set aside the appointment of the arbitrator is dismissed.
  • The applicant is ordered to pay the costs of the application.