Triton Pharmacare Corporate Ltd v Green and Another (2019/20464) [2020] ZAGPJHC 60 (28 February 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NO: 2019/20464

In the matter between:

TRITON PAHARMACARE CORPORATE LTD Applicant

And

GREEN IAN First Respondent

GUARDRISK INSURANCE COMPANY Second Respondent

JUDGMENT

TSOKA J:

[1] This is an application to review and set aside an arbitration award made by the first respondent, Mr Ian Green, the senior counsel of the Johannesburg Bar.

[2] The application was launched by the applicant, Triton Pharmacare Corporate (Pty) Ltd (Triton) on 10 June 2019 pursuant to the award

published by Mr Green on 29 April 2019. In terms of the award, Mr Green dismissed Triton’s claim with costs which costs were

inclusive of the costs of the arbitration and the arbitrator.

[3] The application is in terms of S33 (1) (b) of the arbitration Act 42 of 1965 (the Act). It being alleged by Triton that Mr Green deliberately omitted an amount of R3628 837.25 which was part of Triton’s claim in terms of an insurance policy (the policy) issued by the second respondent, Guardrisk Insurance Company Ltd (Guardrisk).The Policy so issued provided for insurance cover under fire and business interruptions. It is contended by Triton that in deliberately disregarding the said amount of R3628 827.25, Mr Green exceeded his powers in terms of S33(1)(b) of the Act and thus rendering the award reviewable by this court.

[4] To appreciate Triton’s complaint it is necessary to briefly set out the facts in this matter. In February 2011, Guardrisk issued the policy in favour of Triton. The terms and conditions of the policy are common cause. The policy issued in favour of Triton indemnified the latter against damage caused by flooding by water and any business interruption resulting therefrom.

[5] On 30 March 2012 a storm occurred which flooded Triton’s premises. This not only caused Triton physical damage but caused business interruption as provided for in the policy. As the flooding constituted the insured event in terms of the policy, Triton lodged a claim with Guardrisk In due course, the latter paid the former an amount of R19 336 802.81 as interim payment for the claim. However, on 29 January 2013, Triton demanded from Guarsrisk compensation for business loss. The latter having not paid the amount claimed, Triton on 01 April 2013 issued summons against Guardrisk for loss in the sum of R9 802 352.68 being for business interruption loss and equipment damage.

[6] The parties separated the business interruption loss from the equipment damages. In due course, both parties filed expert reports. However, the amount claimed by Triton for business interruption and equipment loss differed from the amount claimed in the particulars of claim. In September 2018 Triton amended the amount claimed in respect of both business interruption and equipment to accord with its expert summaries. This time the amount claimed for equipment was an amount of R10 755 340. The claim for business interruption also differed from the one in the summons. According to Guardrisk expert summaries the amount calculated by its experts for equipment was less than the amount of R10 755 340. With regard to the business interruption, the calculated amount showed that Triton had been overpaid. As no agreement could be reached as to how much Triton must be compensated for, on 13 November 2018 the parties entered into an arbitration agreement. The dispute encapsulated in the summons was referred to arbitration presided over by Mr Green.

[7] After hearing evidence and listening to submissions made by counsel on behalf of the parties, on 29 April 2019 Mr Green published his award in terms of which Triton’s claim was dismissed with costs.

[8] The crux of Triton’s complaint is that in dismissing its claim, Mr Green deliberately disregarded the amount of R3 647 304.31 conceded by Guardrisk as due to the former and thus exceeding his powers in terms of S33 (1) of the Act.

[9] The contention of Triton is far from the truth. It is so that Guardrisk conceded that the former is entitled to the amount of R3 647 304.31 and not R10 755 340 as claimed in the summons. As Triton was overpaid by the interim payment in the sum of R 19 336 802.81 , the amount of R3 647 303.31 was then taken into account in calculating the loss in respect of the business interruption resulting in Triton being fully indemnified in terms of the policy.

[10] The cursory reading of the award made by Mr Green makes this clear. The amount of R 3 647 304.31 was taken into account. It was considered. There can be no basis therefor that that amount was deliberately disregarded. Any attempt to suggest deliberate disregard of that amount , is a feeble attempt to justify this court to review the award under the cloak that the alleged disregard amounts to misconduct in terms of S33(1) (b) of the Act. This strategy must fail.

[11] Assuming, that indeed Mr Green disregarded the said amount of R 3 647 304.31 this still cannot amount to Mr Green exceeding his powers in terms of S33 (1) (b) of the Act. At best for Triton it means Mr Green was wrong, which in terms of the law, was entitled to.. In this regard it is necessary to referred to what the Supreme Court of Appeal in Telecordia Technologies INC vs Telcom SA Ltd 2007(3) SA 266 at para 52 said. In approving what the English Court with regard to “gross irregularity” and “exceeding powers” in terms of S33(1)(b) of the Act,the court said –

‘….This required the courts below to address the question whether the tribunal purported to exercise a power which it did not have or whether it erroneously exercised a power that it did not have. If it is merely a case of erroneous exercise of power vesting in the tribunal no excess of power under S 68(2) (b) is invoked. Once the matter is approached correctly, it is clear that at the highest, in the present case, on the currency point, there was no more than an erroneous exercise of power available under S 48 (4). The jurisdictional challenge must therefore fail ‘

[12] Similarly, if Mr Green erroneously exercised his power, which I found he did not, correctly exercised the power entrusted upon him by the parties in terms of the agreement. There being no complaint about the method used or the conduct of Mr Green in the arbitration proceedings but rather the result arrived at, the complaint of Triton is unfounded. It must fail.

[13] This brings me to the issue of costs. Guardrisk seeks punitive costs orders against Triton in that the application is vexatious and unjustifiable in impugning the integrity of Mr Green, a Senior Counsel and the officer of this Court.

[14] There being no shred of evidence that Mr Green used a wrong method in arriving at his award, that his conduct fell short of that of a reasonable arbitrator, I agree with Guardrisk’s submissions that the application is indeed vexatious. To fortuitously impugn the integrity of Mr Green in alleging that he deliberately disregarded evidence is uncalled for and unjustified. The conduct of Triton in this regard justifies a punitive cost order.

[15] In the result the following order is made :

15.1 The Application is dismissed with costs on an attorney and client scale including the costs of Senior Counsel.

________________________

M. P. TSOKA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

JOHANNESBURG

Counsel for the Applicant: Adv HB Marias SC

Adv C de la Hunt

Instructed by: Shindlers Attorneys

Counsel for the Respondents: ADV B W Burman SC

Instructed by: Savage Jooste & Adams Attorneys

Date of Hearing: 26 February 2020

Date of Judgment: 28 February 2020