Walker and Others v Faerie Glen Waterpark (Pty) Ltd and Others (2024/041428) [2025] ZAGPPHC 572 (2 June 2025)

Walker and Others v Faerie Glen Waterpark (Pty) Ltd and Others (2024/041428) [2025] ZAGPPHC 572 (2 June 2025)

The court found that the arbitrator was empowered under both the Arbitration Act and the lease dispute rules to clarify his award mero motu to address the omission regarding the scale of costs. Both parties acknowledged the omission, and the arbitrator's subsequent directive specifying High Court scale costs was within his authority. The applicants had multiple opportunities to address the issue of costs, both in written submissions and oral argument, and no procedural unfairness occurred. The arbitrator's discretion to award costs on a High Court scale was supported by the lease agreement and the relevant rules, and the fact that the monetary value fell within the Magistrates Court's...

Citation
[2025] ZAGPPHC 572
Parties
Applicant: C J Walker; Applicant: John Walker Attorneys Inc; Applicant: J Van Den Berg; Respondent: Faerie Glen Waterpark (Pty) Ltd; Respondent: D J Van Heerden N.O.; Respondent: Resolve Africa (Pty) Ltd t/a The Tribunal for Commercial Property
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
2 June 2025
Case Number
2024/041428
Procedural Posture
Review Application / Judgment on Application to Set Aside Arbitral Award and Counter Application to Make Award an Order of Court
Outcome
Application to set aside the Taxation Directive and arbitral award dismissed; arbitrator's award made an order of court; applicants ordered to pay costs on attorney-and-client scale.
Judges
SG Maritz
Legal Topics
Arbitration Review, Gross Irregularity, Costs Award, Functus Officio, Attorney and Client Costs, Lease Dispute
Civil Procedure Commercial and Corporate Alternative Dispute Resolution Arbitration Review Gross Irregularity Costs Award Functus Officio Attorney and Client Costs +1 more

Case Brief

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Parties

C J Walker

Applicant

John Walker Attorneys Inc

Applicant

J Van Den Berg

Applicant

Faerie Glen Waterpark (Pty) Ltd

Respondent

D J Van Heerden N.O.

Respondent

Resolve Africa (Pty) Ltd t/a The Tribunal for Commercial Property

Respondent

Procedural Posture

Review Application / Judgment on Application to Set Aside Arbitral Award and Counter Application to Make Award an Order of Court

Legal Issues

  1. 1 Whether the arbitrator was entitled to clarify his final award mero motu regarding the scale of costs.
  2. 2 Whether the arbitrator committed a gross irregularity by awarding costs on a High Court scale.
  3. 3 Whether the arbitrator was functus officio after delivering his final award.

Ratio Decidendi

The court found that the arbitrator was empowered under both the Arbitration Act and the lease dispute rules to clarify his award mero motu to address the omission regarding the scale of costs. Both parties acknowledged the omission, and the arbitrator's subsequent directive specifying High Court scale costs was within his authority. The applicants had multiple opportunities to address the issue of costs, both in written submissions and oral argument, and no procedural unfairness occurred. The arbitrator's discretion to award costs on a High Court scale was supported by the lease agreement and the relevant rules, and the fact that the monetary value fell within the Magistrates Court's...

Court Disposition

Application to set aside the Taxation Directive and arbitral award dismissed; arbitrator's award made an order of court; applicants ordered to pay costs on attorney-and-client scale.

Orders

  • The applicants’ application is dismissed.
  • The final award granted by the arbitrator issued on 9 November 2023, and the subsequent inclusion of the High Court scale tariff costs on 5 March 2024, as well as the Taxation Award, is made an order of court in terms of section 31 of the Arbitration Act, 42 of 1965.