Vecchio Modo (Pty) Ltd v Mitchell and Others (10304/2003) [2011] ZAWCHC 482 (17 November 2011)

Vecchio Modo (Pty) Ltd v Mitchell and Others (10304/2003) [2011] ZAWCHC 482 (17 November 2011)

The court found that Irish AJ was not empowered, at the stage of the interlocutory application, to make an order referring a question of law for determination by the court under section 20 of the Arbitration Act. The relevant procedural stage for such a direction was only reached before Bozalek J, not earlier. The arbitrator had initially refused to state any question of law, and by the time of his interim award, he was acting under the directions of Traverso DJP, not exercising fresh discretion. Traverso DJP's order reserved to the court the power to state any question of law once the process she set out had run its course. The applicant failed to show that the court's discretion was not...

Citation
[2011] ZAWCHC 482
Parties
Applicant: Vecchio Modo (Pty) Limited (J L Konstruksie); Respondent: J W Mitchell & Others
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 November 2011
Case Number
10304/2003
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Application to Direct Arbitrator to State Questions of Law Under Section 20 of the Arbitration Act.
Outcome
Application for leave to appeal dismissed with costs, including costs of two counsel.
Judges
Bozalek
Legal Topics
Arbitration Act Section 20, Leave to Appeal, Special Case Procedure
Civil Procedure Alternative Dispute Resolution Arbitration Act Section 20 Leave to Appeal Special Case Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Vecchio Modo (Pty) Limited (J L Konstruksie)

Applicant

J W Mitchell & Others

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Application to Direct Arbitrator to State Questions of Law Under Section 20 of the Arbitration Act.

Legal Issues

  1. 1 Whether Irish AJ's prior order constituted a binding direction to state a question of law for the court under section 20 of the Arbitration Act.
  2. 2 Whether there are reasonable prospects that another court would find differently regarding the stating of a question of law for determination by the court.
  3. 3 Whether the arbitrator or Irish AJ properly exercised discretion to refer a question of law to the court.

Ratio Decidendi

The court found that Irish AJ was not empowered, at the stage of the interlocutory application, to make an order referring a question of law for determination by the court under section 20 of the Arbitration Act. The relevant procedural stage for such a direction was only reached before Bozalek J, not earlier. The arbitrator had initially refused to state any question of law, and by the time of his interim award, he was acting under the directions of Traverso DJP, not exercising fresh discretion. Traverso DJP's order reserved to the court the power to state any question of law once the process she set out had run its course. The applicant failed to show that the court's discretion was not...

Court Disposition

Application for leave to appeal dismissed with costs, including costs of two counsel.

Orders

  • The application for leave to appeal is dismissed with costs, such costs to include the costs of two counsel.