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South Africa Judgment

South Gauteng High Court, Johannesburg

Altech Radio Holdings (Pty) Ltd v Aeonova360 Management Services (Pty) Ltd and Another [2023] ZAGPJHC 1096 (29 September 2023)

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Source document

01

Holding and result

The court found that the applicant failed to demonstrate a reasonable prospect of success on appeal against the judgment setting aside the arbitral award and terminating the appointment of the arbitrator. The findings of gross irregularity in the arbitration proceedings and the improper appointment of the arbitrator were supported by the evidence and the correct application of the relevant statutory provisions. The court held that there was no compelling reason for leave to appeal to be granted under section 17(1)(a) of the Superior Courts Act. The application for leave to appeal was accordingly dismissed.

Court disposition

Application for leave to appeal dismissed.

Orders

  • The application for leave to appeal is dismissed.
  • No order as to costs.

02

Material facts

Parties

Altech Radio Holdings (Pty) Ltd

Applicant

Aeonova360 Management Services (Pty) Ltd

Respondent

Retired Justice BR Southwood

Respondent

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Judgment Setting Aside Arbitral Award and Appointment of Arbitrator.

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contends that the court erred in setting aside the arbitral award on the basis of gross irregularity and in terminating the appointment of the arbitrator. It argues that there are reasonable prospects of success on appeal, as the findings regarding the conduct of the arbitrator and the application of section 33(1)(a) and section 13(2) of the Arbitration Act were incorrect. The applicant further submits that there are compelling reasons for the appeal to be heard, including the interests of justice and the proper interpretation of the relevant statutory provisions.
Respondent
The respondents maintain that the judgment was correct in both setting aside the arbitral award and terminating the arbitrator's appointment. They argue that the applicant has failed to demonstrate any reasonable prospect of success on appeal or any compelling reason for leave to be granted. The respondents assert that the court properly applied the relevant provisions of the Arbitration Act and the Superior Courts Act, and that the findings of gross irregularity and improper appointment were justified.

05

Court’s reasoning

  1. 01

    Section 17(1)(a) of the Superior Courts Act, 10 of 2013

    Leave to appeal may only be granted if there is a reasonable prospect that another court would come to a different conclusion, or there is some other compelling reason for the appeal to be heard.

  2. 02

    Section 33(1)(a) of the Arbitration Act, 42 of 1965

    An arbitral award may be set aside if there is a gross irregularity in the conduct of the arbitration proceedings.

  3. 03

    Section 13(2) of the Arbitration Act, 42 of 1965

    The appointment or termination of an arbitrator must be determined in accordance with section 13(2) of the Arbitration Act.

  4. 04

    Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18

    The interpretation of statutes must be approached contextually and purposively.

  5. 05

    Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others 2021 (5) SA 327 (CC) para 98

    No one is above the law, and judicial decisions must be respected and enforced.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant failed to demonstrate a reasonable prospect of success on appeal against the judgment setting aside the arbitral award and terminating the appointment of the arbitrator. The findings of gross irregularity in the arbitration proceedings and the improper appointment of the arbitrator were supported by the evidence and the correct application of the relevant statutory provisions. The court held that there was no compelling reason for leave to appeal to be granted under section 17(1)(a) of the Superior Courts Act. The application for leave to appeal was accordingly dismissed.

Obiter and limits

  • The autonomy of parties in arbitration allows them to decide on a public hearing, but this is not the norm.
  • Observations by the Constitutional Court regarding the setting aside of the appointment of an arbitrator under section 13(2) of the Arbitration Act are equally applicable to this matter.
  • The interpretation of statutory provisions must be contextual and purposive, as established in Endumeni Municipality.
  • No one is above the law, and compliance with judicial decisions is essential for the rule of law.

Court disposition

Application for leave to appeal dismissed.

  • The application for leave to appeal is dismissed.
  • No order as to costs.

Source and reliance status

South Gauteng High Court, Johannesburg

This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.

Judgment reading view

Judgment text

The complete available source text.

Source document

South Gauteng High Court, Johannesburg

Judgment

[2023] ZAGPJHC 1096

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION,

JOHANNESBURG

CASE NO: 2023-032374

NOT REPORTABLE

NOT OF INTEREST TO OTHER

JUDGES

In the matter between:

In the application by

ALTECH RADIO HOLDINGS (PTY) LTD Applicant and AEONOVA360 MANAGEMENT SERVICES (PTY) LTD First Respondent

RETIRED JUSTICE BR

SOUTHWOOD Second Respondent

JUDGMENT

MOORCROFT AJ:

Summary

Application for leave to appeal – section 17(1)(a)(i) and (ii) of the Superior Courts Act, 10 of 2013 – reasonable prospect of success or other compelling reason why appeal should be heard

Setting aside arbitral award on ground of gross irregularity - section 33(1)(a) of Arbitration Act, 42 of 1965 – submission of dispute to new arbitral tribunal – section 33(4)

Termination or setting aside of appointment of arbitrator – section 13(2) of Arbitration Act

[1] Altech Radio Holdings (Pty) Ltd v Aeonova360 Management Services (Pty) Ltd and another[2023] ZAGPJHC 475, 2023 JDR 1421 (GJ). The case number is 2023-001585.

[2] Altech Radio Holdings (Pty) Ltd v Aeonova360 Management Services (Pty) Ltd and another [2023] ZAGPJHC 631, 2023 JDR 1969 (GJ). The case number is 2023-032734.

[3] KwaZulu-Natal Law Society v Sharma [2017] JOL 37724 (KZP) para 29. See also Shinga v The State and another (Society of Advocates (Pietermaritzburg Bar) intervening as Amicus Curiae); S v O'Connell and others 2007 (2) SACR 28 (CC).

[4] S v Smith 2012 (1) SACR 567 (SCA) para 7.

[5] Mont Chevaux Trust (IT 2012/28) v Tina Goosen 2014 JDR 2325 (LCC), [2014] ZALCC 20 para 6.

[6] S v Notshokovu 2016 JDR 1647 (SCA), [2016] ZASCA 112 para 2.

[7] Member of the Executive Council for Health, Eastern Cape v Mkhitha and another [2016] JOL 36940 (SCA) para 16. See also See Van Loggerenberg Erasmus: Superior Court Practice A2-55; The Acting National Director of Public Prosecution v Democratic Alliance [2016] ZAGPPHC 489, JOL 36123

[8] Ramakatsa and others v African National Congress and another [2021] JOL 49993 (SCA), also reported as Ramakatsa v ANC 2021 ZASCA 31.

[9] The reference in footnote 7 is to Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA), [2020] ZASCA 17.

[10] Footnote 9 in the judgment reads as follows: “See Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 (SCA); MEC Health, Eastern Cape v Mkhitha [2016] ZASCA 176 para 17.”

[11] Judgment paras 28 and 29.

[12] Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.

[13] Ibid para 20.

[14] Telkom SA SOC Ltd v Commissioner, South African Revenue Service 2020 (4) SA 480 (SCA) paras 10 to 17 and Commissioner, South African Revenue Service v United Manganese of Kalahari (Pty) Ltd 2020 (4) SA 428 (SCA) paras 16 to 17.

[15] Harvey NO and Others v Crawford NO and Others 2019 (2) SA 153 (SCA).

[16] Strauss v Strauss and Others [2023] ZAGPJHC 377, 2023 JDR 1302 (GJ), [2023] JOL 58905 (GJ).

[17] Commissioner, South African Revenue Service v United Manganese of Kalahari (Pty) Ltd 2020 (4) SA 428 (SCA) para 16.

[18] No-one is above the law. See Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others 2021 (5) SA 327 (CC) para 98.

[19] See the judgment by O’Regan ADCJ in Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC) para 236. These observations by the Constitutional Court are equally applicable to applications for the setting aside of the appointment of an arbitrator under section 13(2) of the Arbitration Act: Umgeni Water v Hollis NO and Another 2012 (3) SA 475 (KZD) para 22. See also Palabora Copper (Pty) Ltd v Motlokwa Transport & Construction (Pty) Ltd 2018 (5) SA 462 (SCA) para 8 and Umgeni para 42.

[20] Judgment para 84 and cases in footnote 45.

[21] Judgment para 12.

[22] Judgment paras 51 to 54.

[23] Umgeni Water v Hollis NO and Another 2012 (3) SA 475 (KZD) paras 36 to 40 and section 13(1) of the Arbitration Act.>

[24] Heads of argument in application for leave to appeal para 39.

[25] Judgment para 38. Altech quoted and relied upon part of the response but not the whole response.

[26] Judgment paras 30 to 44.

[27] Umgeni Water v Hollis NO and Another 2012 (3) SA 475 (KZD) paras 42 to 44.

[28] Ndlovu v Minister of Home Affairs and Another 2011 (2) SA 621 (KZD).

[29] Umgeni Water v Hollis NO and Another 2012 (3) SA 475 (KZD) paras 42 to 44.

[30] Judgment paras 48 to 49.

[31] Judgment para 43.

[32] Judgment paras 55 to 62.

[33] Judgment paras 63 to 65.

[34] Judgment paras 66 to 68.

[35] Judgment paras 69 to 72.

[36] Section 17(1)(a)(ii) of the Superior Courts Act.

[38] Judgment para 82.5 and President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9; 1999 (4) SA 147 (CC) para 48. The decision of often referred to as the Sarfu case.

[39] Umgeni Water v Hollis NO and Another 2012 (3) SA 475 (KZD) paras 34 to 40.

[40] Dohne Construction (Pty) Limited v Adv Lane SC and another 2022 JDR 3706 (GJ) para 21.

[41] Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC)

[42] Ibid para 215.

[43] Ibid para 213.

[44] The parties may decide on a public hearing as they are autonomous, but as a rule this is not the case.

[45] Ramakatsa and others v African National Congress and another [2021] JOL 49993 (SCA).

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Altech Radio Holdings (Pty) Ltd v Aeonova360 Management Services (Pty) Ltd and another [2023] ZAGPJHC 475, 2023 JDR 1421 (GJ)

Case cited

Altech Radio Holdings (Pty) Ltd v Aeonova360 Management Services (Pty) Ltd and another [2023] ZAGPJHC 631, 2023 JDR 1969 (GJ)

Case cited

KwaZulu-Natal Law Society v Sharma [2017] JOL 37724 (KZP)

Case cited

Shinga v The State and another (Society of Advocates (Pietermaritzburg Bar) intervening as Amicus Curiae); S v O'Connell and others 2007 (2) SACR 28 (CC)

Case cited

S v Smith 2012 (1) SACR 567 (SCA)

Case cited

Mont Chevaux Trust (IT 2012/28) v Tina Goosen 2014 JDR 2325 (LCC), [2014] ZALCC 20

Case cited

S v Notshokovu 2016 JDR 1647 (SCA), [2016] ZASCA 112

Case cited

Member of the Executive Council for Health, Eastern Cape v Mkhitha and another [2016] JOL 36940 (SCA)

Case cited

Van Loggerenberg Erasmus: Superior Court Practice A2-55

Case cited

The Acting National Director of Public Prosecution v Democratic Alliance [2016] ZAGPPHC 489, JOL 36123

Case cited

Ramakatsa and others v African National Congress and another [2021] JOL 49993 (SCA), 2021 ZASCA 31

Case cited

Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA), [2020] ZASCA 17

Case cited

Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 (SCA)

Case cited

MEC Health, Eastern Cape v Mkhitha [2016] ZASCA 176

Case cited

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)

Case cited

Telkom SA SOC Ltd v Commissioner, South African Revenue Service 2020 (4) SA 480 (SCA)

Case cited

Commissioner, South African Revenue Service v United Manganese of Kalahari (Pty) Ltd 2020 (4) SA 428 (SCA)

Case cited

Harvey NO and Others v Crawford NO and Others 2019 (2) SA 153 (SCA)

Case cited

Strauss v Strauss and Others [2023] ZAGPJHC 377, 2023 JDR 1302 (GJ), [2023] JOL 58905 (GJ)

Case cited

Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others 2021 (5) SA 327 (CC)

Case cited

Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC)

Case cited

Umgeni Water v Hollis NO and Another 2012 (3) SA 475 (KZD)

Case cited

Palabora Copper (Pty) Ltd v Motlokwa Transport & Construction (Pty) Ltd 2018 (5) SA 462 (SCA)

Case cited

Ndlovu v Minister of Home Affairs and Another 2011 (2) SA 621 (KZD)

Case cited

President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9; 1999 (4) SA 147 (CC)

Case cited

Dohne Construction (Pty) Limited v Adv Lane SC and another 2022 JDR 3706 (GJ)

Case cited

Superior Courts Act, 10 of 2013

Legislation

Legislation referenced in the available case record.

Arbitration Act, 42 of 1965

Legislation

Legislation referenced in the available case record.

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