What A Functionality (Pty) Ltd v eStudy (Pty) Ltd and Others (14579/2020) [2022] ZAGPPHC 127 (15 February 2022)

What A Functionality (Pty) Ltd v eStudy (Pty) Ltd and Others (14579/2020) [2022] ZAGPPHC 127 (15 February 2022)

The court found that the appointment of the third respondent as arbitrator was not in accordance with the procedure stipulated in the Service Level Agreement, which required appointment by either the Institute of Chartered Accountants of South Africa or the President of the Law Society of the Northern Provinces. The addendum relied upon by the first respondent did not amend the original SLA in respect of the appointment procedure, and the subsequent proposal of a second addendum indicated that the first respondent did not consider the first addendum binding. The court held that the arbitration proceedings and the award were void as the arbitrator was not properly appointed. The applicant...

Citation
[2022] ZAGPPHC 127
Parties
Applicant: What A Functionality (Pty) Ltd; Respondent: eStudy (Pty) Ltd; Respondent: Association of Arbitrators (Southern Africa) NPC; Respondent: Mr Shaun Preston Hangoni N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 February 2022
Case Number
14579/2020
Procedural Posture
Review Application / Judgment
Outcome
Application granted in part; appointment of arbitrator, arbitration proceedings, and award set aside; costs awarded to applicant except for reserved costs.
Judges
Phahlamohlaka A.J.
Legal Topics
Arbitration Agreement Validity, Appointment of Arbitrator, Service Level Agreement, Review of Arbitral Award
Commercial and Corporate Alternative Dispute Resolution Arbitration Agreement Validity Appointment of Arbitrator Service Level Agreement Review of Arbitral Award

Case Brief

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Parties

What A Functionality (Pty) Ltd

Applicant

eStudy (Pty) Ltd

Respondent

Association of Arbitrators (Southern Africa) NPC

Respondent

Mr Shaun Preston Hangoni N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the appointment of the third respondent as arbitrator was valid under the Service Level Agreement and addendum.
  2. 2 Whether the arbitration proceedings and subsequent award are null and void.
  3. 3 Whether the addendum to the Service Level Agreement was properly agreed to between the parties.

Ratio Decidendi

The court found that the appointment of the third respondent as arbitrator was not in accordance with the procedure stipulated in the Service Level Agreement, which required appointment by either the Institute of Chartered Accountants of South Africa or the President of the Law Society of the Northern Provinces. The addendum relied upon by the first respondent did not amend the original SLA in respect of the appointment procedure, and the subsequent proposal of a second addendum indicated that the first respondent did not consider the first addendum binding. The court held that the arbitration proceedings and the award were void as the arbitrator was not properly appointed. The applicant...

Court Disposition

Application granted in part; appointment of arbitrator, arbitration proceedings, and award set aside; costs awarded to applicant except for reserved costs.

Orders

  • The decision of the second respondent on 12 May 2019 to appoint the third respondent as arbitrator is reviewed and set aside.
  • The third respondent's award dated 19 August 2019 is reviewed and set aside.