Ten Four Consulting (Pty) Ltd and Another v Du Plessis and Another (7937/2017) [2020] ZAGPPHC 135 (5 May 2020)

Ten Four Consulting (Pty) Ltd and Another v Du Plessis and Another (7937/2017) [2020] ZAGPPHC 135 (5 May 2020)

The court found that the arbitrator's conduct, specifically the failure to properly define the issues to be decided and the private discussion with the second respondent's counsel in the absence of the applicants, prevented a fair trial of the issues. The arbitrator did not exercise his own judgment and allowed his decision-making function to be influenced in a manner subversive of his independence. This conduct constituted a gross irregularity under section 33(1)(b) of the Arbitration Act. Consequently, the arbitration award was set aside and the matter remitted to a new arbitrator.

Citation
[2020] ZAGPPHC 135
Parties
Applicant: Ten Four Consulting (Pty) Ltd; Applicant: Fourth Dimension Financial Services (Pty) Ltd; Respondent: Barend Rudolph du Plessis; Respondent: Germa Beukes
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 May 2020
Case Number
7937/2017
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is set aside for gross irregularity and the matter is remitted to a new arbitrator. Costs are awarded against the second respondent.
Judges
C M Sardiwalla
Legal Topics
Arbitration Review, Gross Irregularity, Restraint of Trade, Powers of Arbitrator
Alternative Dispute Resolution Commercial and Corporate Arbitration Review Gross Irregularity Restraint of Trade Powers of Arbitrator

Case Brief

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Parties

Ten Four Consulting (Pty) Ltd

Applicant

Fourth Dimension Financial Services (Pty) Ltd

Applicant

Barend Rudolph du Plessis

Respondent

Germa Beukes

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings.
  2. 2 Whether the arbitrator exceeded his powers by dismissing the applicant's damages claim without properly defining the issues.
  3. 3 Whether the arbitration award should be set aside under section 33(1)(b) of the Arbitration Act.

Ratio Decidendi

The court found that the arbitrator's conduct, specifically the failure to properly define the issues to be decided and the private discussion with the second respondent's counsel in the absence of the applicants, prevented a fair trial of the issues. The arbitrator did not exercise his own judgment and allowed his decision-making function to be influenced in a manner subversive of his independence. This conduct constituted a gross irregularity under section 33(1)(b) of the Arbitration Act. Consequently, the arbitration award was set aside and the matter remitted to a new arbitrator.

Court Disposition

The arbitration award is set aside for gross irregularity and the matter is remitted to a new arbitrator. Costs are awarded against the second respondent.

Orders

  • The Arbitration Award is set aside.
  • The matter is remitted to arbitration, with the agreed appointment of a new arbitrator within 14 days of this order.