Total Support Management (Pty) Ltd and Another v Diversified Health Systems (South Africa) (Pty) Ltd and Another (457/2000) [2002] ZASCA 14; 2002 (4) SA 661 (SCA) (25 March 2002)

Total Support Management (Pty) Ltd and Another v Diversified Health Systems (South Africa) (Pty) Ltd and Another (457/2000) [2002] ZASCA 14; 2002 (4) SA 661 (SCA) (25 March 2002)

The Supreme Court of Appeal held that the appellants failed to establish misconduct or gross irregularity on the part of the arbitrator as required by section 33(1) of the Arbitration Act. The arbitrator's errors, even if present, were bona fide mistakes and did not amount to dishonesty, partiality, or moral turpitude. The involvement of the assistant, Milo, was within the scope agreed by the parties and did not constitute a usurpation of the arbitrator's decision-making function. The award reflected the arbitrator's own independent judgment. The Court further found that consensual arbitration does not constitute administrative action and is not subject to the administrative justice...

Citation
[2002] ZASCA 14
Parties
Appellant: Total Support Management (Pty) Ltd; Appellant: G W Slabbert; Respondent: Diversified Health Systems (South Africa) (Pty) Ltd; Respondent: P E B Reynolds
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 March 2002
Case Number
457/2000
Procedural Posture
Civil Appeal / Appeal From High Court Judgment Dismissing Application to Set Aside Arbitration Award
Outcome
Appeal dismissed with costs, including costs of two counsel for both respondents and attorney and client costs for the second respondent.
Judges
Smalberger, Marais, Cameron, Brand, Lewis
Legal Topics
Arbitration Award Review, Misconduct of Arbitrator, Gross Irregularity, Onus of Proof, Condictio Indebiti
Alternative Dispute Resolution Commercial and Corporate Arbitration Award Review Misconduct of Arbitrator Gross Irregularity Onus of Proof Condictio Indebiti

Case Brief

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Parties

Total Support Management (Pty) Ltd

Appellant

G W Slabbert

Appellant

Diversified Health Systems (South Africa) (Pty) Ltd

Respondent

P E B Reynolds

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment Dismissing Application to Set Aside Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator misconducted himself or committed a gross irregularity in the conduct of the arbitration proceedings as contemplated by section 33(1) of the Arbitration Act.
  2. 2 Whether the award should be set aside on the basis of alleged errors or improper delegation of decision-making to an assistant.
  3. 3 Whether the Bill of Rights, specifically sections 33 and 34 of the Constitution, apply to consensual arbitration proceedings.

Ratio Decidendi

The Supreme Court of Appeal held that the appellants failed to establish misconduct or gross irregularity on the part of the arbitrator as required by section 33(1) of the Arbitration Act. The arbitrator's errors, even if present, were bona fide mistakes and did not amount to dishonesty, partiality, or moral turpitude. The involvement of the assistant, Milo, was within the scope agreed by the parties and did not constitute a usurpation of the arbitrator's decision-making function. The award reflected the arbitrator's own independent judgment. The Court further found that consensual arbitration does not constitute administrative action and is not subject to the administrative justice...

Court Disposition

Appeal dismissed with costs, including costs of two counsel for both respondents and attorney and client costs for the second respondent.

Orders

  • The appeal is dismissed with costs including, in respect of both respondents, the costs of two counsel.
  • The appellants are ordered to pay the second respondent's costs of the hearing on 25 February 2002 on an attorney and client scale.