Thiko Consulting Engineers and Others v University of Venda and Another (161/2022) [2024] ZALMPTHC 26 (26 March 2024)

Thiko Consulting Engineers and Others v University of Venda and Another (161/2022) [2024] ZALMPTHC 26 (26 March 2024)

The court found that the Respondents, by filing an answering affidavit, had taken a step in the proceedings and were thus precluded from seeking a stay under Section 6(1) of the Arbitration Act. The court further held that the legality challenge to the agreement, which forms the basis of the main application, is a matter for judicial determination and not for arbitration. The arbitration clause cannot be enforced independently of the agreement when the agreement itself is subject to a legality challenge. The court concluded that there is sufficient reason why the dispute should not be referred to arbitration and that the application for stay must fail. The setting aside of the...

Citation
[2024] ZALMPTHC 26
Parties
Applicant: Thiko Consulting Engineers Nevhutalu Consulting Engineers JV; Applicant: Thiko Consulting Engineers; Applicant: Nevhutalu Consulting Engineers; Respondent: University of Venda; Respondent: Abdul Majeed Habib Abdool Carrim
Court
Limpopo High Court, Thohoyandou
Jurisdiction
South Africa
Judgment Date
26 March 2024
Case Number
161/2022
Procedural Posture
Stay Application / Interlocutory Application for Stay of Proceedings and Setting Aside of Arbitrator Appointment
Outcome
Application dismissed with costs.
Judges
Khosa AJ
Legal Topics
Arbitration Act 42 of 1965, Stay of Proceedings, Legality Review, Public Procurement, Arbitrator Appointment, Constitutional Remedy
Civil Procedure Commercial and Corporate Administrative Law Arbitration Act 42 of 1965 Stay of Proceedings Legality Review Public Procurement Arbitrator Appointment +1 more

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Parties

Thiko Consulting Engineers Nevhutalu Consulting Engineers JV

Applicant

Thiko Consulting Engineers

Applicant

Nevhutalu Consulting Engineers

Applicant

University of Venda

Respondent

Abdul Majeed Habib Abdool Carrim

Respondent

Procedural Posture

Stay Application / Interlocutory Application for Stay of Proceedings and Setting Aside of Arbitrator Appointment

Legal Issues

  1. 1 Whether the main application should be stayed in favour of pending arbitration between the University and the Respondents.
  2. 2 Whether the appointment of Abdul Majeed Habib Abdool Carrim as arbitrator should be set aside.

Ratio Decidendi

The court found that the Respondents, by filing an answering affidavit, had taken a step in the proceedings and were thus precluded from seeking a stay under Section 6(1) of the Arbitration Act. The court further held that the legality challenge to the agreement, which forms the basis of the main application, is a matter for judicial determination and not for arbitration. The arbitration clause cannot be enforced independently of the agreement when the agreement itself is subject to a legality challenge. The court concluded that there is sufficient reason why the dispute should not be referred to arbitration and that the application for stay must fail. The setting aside of the...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The Respondents are ordered to pay the costs of the University of Venda, including the costs of employment of two Counsel, one paying the other to be absolved.