Termico (Pty) Ltd v SPX Technologies (Pty) Ltd & others; SPX Technologies (Pty) Ltd v Termico (Pty) Ltd (418/2018) [2019] ZASCA 109; 2020 (2) SA 295 (SCA) (6 September 2019)

Termico (Pty) Ltd v SPX Technologies (Pty) Ltd & others; SPX Technologies (Pty) Ltd v Termico (Pty) Ltd (418/2018) [2019] ZASCA 109; 2020 (2) SA 295 (SCA) (6 September 2019)

The Supreme Court of Appeal held that the arbitrators had finally determined all issues referred to them, including the enforceability of the Put Option and the calculation of the Put Price. The alleged gross irregularity based on lack of finality was unfounded, as the only outstanding issue—the value of Loan B—was not within the arbitrators' jurisdiction and was not referred to them. The court found that SPXT's refusal to attend the implementation meeting constituted deliberate frustration, and the meeting was deemed to have occurred. There was no dispute as to the amount outstanding on Loan B, and the court was entitled to grant a money judgment for the net amount. The...

Citation
[2019] ZASCA 109
Parties
Appellant: Termico (Pty) Ltd; Respondent: SPX Technologies (Pty) Ltd; Respondent: Peter Solomon SC NO; Respondent: Chris Eloff SC NO; Respondent: Michael van der Nest SC NO
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
6 September 2019
Case Number
418/2018
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg
Outcome
Appeal upheld; arbitration award reinstated and made an order of court; money judgment granted in favour of Termico; SPXT's repudiation appeal dismissed.
Judges
Ponnan, Leach, Swain, Molemela, Mbatha
Legal Topics
Arbitration Act 1965, Gross Irregularity, Finality of Award, Hybrid Order, Shareholders Agreement, Put and Call Options
Commercial and Corporate Alternative Dispute Resolution Arbitration Act 1965 Gross Irregularity Finality of Award Hybrid Order Shareholders Agreement Put and Call Options

Case Brief

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Parties

Termico (Pty) Ltd

Appellant

SPX Technologies (Pty) Ltd

Respondent

Peter Solomon SC NO

Respondent

Chris Eloff SC NO

Respondent

Michael van der Nest SC NO

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the arbitration award should be set aside for gross irregularity under s 33(1)(b) of the Arbitration Act 42 of 1965.
  2. 2 Whether the arbitrators' award lacked finality and was therefore unenforceable.
  3. 3 Whether the counter-application to make the arbitration award an order of court and for a money judgment constituted an impermissible hybrid order.

Ratio Decidendi

The Supreme Court of Appeal held that the arbitrators had finally determined all issues referred to them, including the enforceability of the Put Option and the calculation of the Put Price. The alleged gross irregularity based on lack of finality was unfounded, as the only outstanding issue—the value of Loan B—was not within the arbitrators' jurisdiction and was not referred to them. The court found that SPXT's refusal to attend the implementation meeting constituted deliberate frustration, and the meeting was deemed to have occurred. There was no dispute as to the amount outstanding on Loan B, and the court was entitled to grant a money judgment for the net amount. The...

Court Disposition

Appeal upheld; arbitration award reinstated and made an order of court; money judgment granted in favour of Termico; SPXT's repudiation appeal dismissed.

Orders

  • Termico's appeal is upheld with costs, including those of two counsel.
  • Paragraphs 1 to 3 of the order of the court below are set aside and substituted.