Van der Merwe NO and Others v Kriegler NO and Others (23140/12) [2012] ZAGPPHC 272 (13 November 2012)

Van der Merwe NO and Others v Kriegler NO and Others (23140/12) [2012] ZAGPPHC 272 (13 November 2012)

The court found that clause 11.3 of the arbitration agreement expressly conferred on the appellate tribunal the powers of a High Court of Appeal to confirm, amend, or set aside the original arbitral award. The tribunal's actions in setting aside and replacing the award were within the scope of these powers, as the replacement award addressed the subject matter of the appeal. The applicants' argument that the tribunal exceeded its jurisdiction was rejected. Furthermore, the court held that the application should have been brought under section 33 of the Arbitration Act, which prescribes a six-week time limit for review applications. The applicants failed to comply with this requirement and...

Citation
[2012] ZAGPPHC 272
Parties
Applicant: Estelle Kathleen van der Merwe N.O.; Applicant: Cornelis Jansen van der Merwe N.O.; Applicant: Gerhardus Francois Rossouw N.O.; Respondent: J.C. Kriegler N.O.; Respondent: K. van Dijkhorst N.O.; Respondent: P.A. Solomon SC N.O.; Respondent: Desert Knight Marketing (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 November 2012
Case Number
23140/12
Procedural Posture
Review Application / Application for Declaratory Relief Regarding the Validity of an Arbitral Appellate Award
Outcome
Application dismissed with costs, limited to the costs of one counsel for the respondent.
Judges
Potterill
Legal Topics
Arbitration Agreement, Arbitral Jurisdiction, Ultra Vires Award, Review of Arbitral Award, Costs Order
Alternative Dispute Resolution Civil Procedure Arbitration Agreement Arbitral Jurisdiction Ultra Vires Award Review of Arbitral Award Costs Order

Case Brief

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Parties

Estelle Kathleen van der Merwe N.O.

Applicant

Cornelis Jansen van der Merwe N.O.

Applicant

Gerhardus Francois Rossouw N.O.

Applicant

J.C. Kriegler N.O.

Respondent

K. van Dijkhorst N.O.

Respondent

P.A. Solomon SC N.O.

Respondent

Desert Knight Marketing (Pty) Ltd

Respondent

Procedural Posture

Review Application / Application for Declaratory Relief Regarding the Validity of an Arbitral Appellate Award

Legal Issues

  1. 1 Whether the arbitral appellate tribunal exceeded its powers under the arbitration agreement by setting aside and replacing the original award.
  2. 2 Whether the award of the appellate tribunal is null and void ab initio due to alleged lack of jurisdiction.
  3. 3 Whether the application should have been brought under section 33 of the Arbitration Act and is time-barred.

Ratio Decidendi

The court found that clause 11.3 of the arbitration agreement expressly conferred on the appellate tribunal the powers of a High Court of Appeal to confirm, amend, or set aside the original arbitral award. The tribunal's actions in setting aside and replacing the award were within the scope of these powers, as the replacement award addressed the subject matter of the appeal. The applicants' argument that the tribunal exceeded its jurisdiction was rejected. Furthermore, the court held that the application should have been brought under section 33 of the Arbitration Act, which prescribes a six-week time limit for review applications. The applicants failed to comply with this requirement and...

Court Disposition

Application dismissed with costs, limited to the costs of one counsel for the respondent.

Orders

  • The application is dismissed with costs, limited to the costs of one counsel for the respondent.