HIGH COURT OF LESOTHO
matter between :
MOTSOPA 1st Respondent
OF WORKS 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
POINTS IN LIMINE
by the Honourable Mrs. Acting Justice A.M. Hlajoane On the 12th
case, the Applicant launched an Application seeking for an interdict
against the 2nd Respondent from releasing some money amounting to
M41,200.00 being assessed value of her mother's premises and site
situated at Ha Mohasoa. It is the Applicant's case that she is
entitled to the said money as she has entered into an agreement with
the 2nd Respondent for the same.
is saying that this compensation money is to be paid by the 2nd
Respondent to the person entitled in law to be compensated in
relation to the site of Mokhali Motsopa and Limakatso Motsopa, who
were husband and wife both of which are now late. The compensation is
a result of a public road construction work to be made upon the site
also been the Applicant's case that she is the only child of the late
Limakatso Motsopa and as such an heir to her estate. She goes further
to state that she has filled an agreement form with the 2nd
Respondent in which it is reflected the measurements and the amount
of compensation she had to receive after the passing away of her
mother Limakatso Motsopa.
his opposing papers the Respondent raised the following points in
the matter is not urgent.
there are serious dispute of facts.
disclosure of material facts.
no delay in filing this Application by the Applicant once she came
aware that the cheque was in the lst Respondent's name, but the
salient question is whether indeed the matter is urgent. In Republic
Motors v Lytton Service Station 1971(2), SA 516 cited in the case of
Lesotho University Teachers and Researchers Union v National
University of Lesotho C of A (CIV) 13/1998, the court had this to say
" the procedure of approaching the court ex-parte for relief
that affects the rights of other persons is one which in my opinion
is somewhat too lightly employed. Although the relief that is sought
when this procedure is resorted to is only temporary in nature, it
necessarily invades, for the time being, the freedom of action of a
person or persons who have not been heard and it is, to that extent,
a negation of the fundamental precept of audi alteram parterm ".
seem therefore that the abovementioned remarks were not heeded in the
relief sought in our case is for an interdict, which if the rule was
to be confirmed would have the final effect. I will quote the
" that the said amount of money shall not be released to the
Applicant as the lawful heir of the late Limakatso Motsopa ".
been shown in the leading case of Setlogelo v Setlogelo 1914 AD 221
on final interdicts, one of the requisites to a claim of interdict is
a clear right. Could it therefore be said that the Applicant on the
papers has managed to establish a clear right. On the papers
Applicant has failed to establish such a right. She ought to have
established a clear right right before coming to the compensation
money. The Application therefore has failed the test for urgency
OF FACT :
his opposing papers, the Respondent clearly disclosed his defence in
that he is saying Applicant is in fact not the heir to the estate of
Limakatso Motsopa as she is the daughter of one Meriam 'Molaoa who is
the sister of Limakatso Motsopa. This of cause is denied by the
Applicant. The dispute obviously cannot be resolved on papers as
would be a matter of evidence.
case of Majara v Majara and another 1985-90 LLR 344, the court
dismissed the Application when the question of legitimacy arose. The
the Application showed that the dispute of legitimacy could not
easily be resolved on papers.
our case the question of legitimacy is an issue, which issue can not
easily be resolved on papers. Consequently therefore the Application
falls to be dismissed.
It is the
1st Respondent's case that in fact the Applicant is only not the
legitimate child of Limakatso Motsopa but also that she is also
married into the Moshesha family and cannot therefore be an heir in
the Motsopa family in the absence of any will.
the Applicant says that the lst Respondent is only making bare
allegations which he does not support with any evidence by saying she
is married to the Moshesha family. Room Hire Co. (Pty) Ltd. V Jeepe
Street Mansions 1944 (3) S.A 1155. But the Applicant in our case in
her founding affidavit shows that she is a married woman. To quote
her she says " I am the Applicant herein, a female adult (duly
assisted by husband) ". You cannot be duly assisted by a husband
when you are not married. This shows that Applicant has not been
candid with the court, she did not find it befitting to take this
court into her confidence,
Construction Lesotho (Pty) Ltd Applicant
by the Honourable Mr. Justice M.M. Ramodibedi On the 12th day of
that is about to unfold in this matter goes like this. In January
2000 the parties herein signed a "Joint Venture Agreement"
annexure "GMR 2" (the Agreement) the sole object of which
was to negotiate and conclude a contract with the Government of
Lesotho for the execution of the road construction works and to carry
out such works to finality. It is common cause that the profit and
losses of the joint venture would, in terms of clause 3.1 of the
Agreement be borne by the Applicant and the Respondent in the
proportions 60% and 40% respectively. It is
to bear in mind here that the parties were then on good terms and no
foul play was probably anticipated.
matters turned out however, as they sadly often do in business
transactions of this nature, one of the parties, as I read the papers
before me, was subsequently overcome by greed to the extent that he
seized the monies earmarked for the Joint Venture and simply refused
to pay the other party's share thus breaking in the process the
fundamental duty of utmost good faith (uberrima Fidessima) which is
the cornerstone for any partnership or joint venture.
course resort was made to arbitration in terms of the Agreement
between the parties and the arbitrator, one Adv. M.H. Wessels, S.C.
ailed in favour of the
and thereby made the following award:-
defendant (now Respondent) is found to be indebted to the claimant
(now Applicant) in the amount of M 1.836,129.00, liable to pay such
an amount to the claimant and ordered to do so.
The defendant is found to be liable to pay interest to the claimant
on the aforesaid amount from date of publication of this award (12
October 2001) to date of payment of the said sum and ordered to pay
such interest to the claimant.
3.1 The defendant is found to be liable to pay the costs of this
arbitration and ordered to do so.
3.2 Such costs shall be taxable and taxed on the High Court scale as
between party and party and shall include the costs of the pretrial
conference which was held on 17 July 2001 and the application by the
claimant for a ruling which was heard on 22 August 2001 as well as
the qualifying fees/expenses of the expert witness, the chartered
accountant, Mr. KRITZINGER."
on section 32 of the Arbitration Act 1980 (the Act), the Applicant
has then applied to this Court for an order in the following terms:-
the Award of the Arbitrator in the Arbitration between Applicant and
Respondent dated 12 October 2001 be made an order of this Court.
the costs of this application be paid by the Respondent.
and/or alternative relief"
avoidance of doubt section 32 of the Act referred to above in turn
provides as follows:-
"32. Award may be made an order of Court -
award may, on the application to a court of a court (sic) of
competent jurisdiction by any part to the reference after due notice
to the other part or parties, be made an order of court.
court to which application is so made, may, before making the award
an order of court, correct in the award any clerical mistake or any
patent error arising from any accidental slip or omission.
award which has been made an order of court may be enforced in the
same manner as any judgment or order to the same effect."
sufficient for me to say at this stage that I approach this matter on
the basis that the Court has a discretion whether or not to make the
award in question an order of Court. It requires to be emphasized,
however, that this is a judicial discretion which must not be
exercised arbitrarily or for a wrong purpose. It is, in my view, a
discretion that must be exercised after due consideration of nil the
relevant factors. I proceed then to deal with such facts as are
relevant in the determination of this matter purely in that context.
Applicant's uncontroverted case that after completion of the
construction works referred to above it procured the preparation and
auditing of, inter alia, a profit and loss account for the
undertakings of the Joint Venture. Save for a bare denial, it is not
seriously disputed that such audit in turn revealed a total loss
suffered by the Joint Venture in the amount of M3,060,215.00.
Applicant's case which is again met with no more than a bare denial
that sixty percent (60%) of the aforesaid loss of M3,060,215.00
totals an amount of M1,836,129.00 which the Respondent has failed
and/or refused to pay to Applicant being the latter's share in terms
of the Agreement.
the above-mentioned background, the Applicant wrote to the Respondent
on the 11th May 2001 per annexure "GMR3" in terms of which
it gave him notice, as required by the Act, of a referral of the
dispute to arbitration. It is further important to note that the
letter annexure "GMR3" also referred to the Arbitration
Agreement between the parties in the following terms:-
"Our client is desirous of resolving the disputes as soon as
possible in order to give effect to the provisions of clauses 12.2
and 13 of the JOINT VENTUE AGREEMENT. In terms of clauses 15.2 and 16
of the Agreement any unresolved differences or disputes between our
client and yourself shall be submitted to and decided by arbitration.
Therefore, kindly take notice that this letter serves as a
notification in terms of Section 5(3) of the Lesotho Arbitration Act
of 1980 in that you are hereby required to agree to the appointment
of Jacobus Jan Daniel Havenga (an independent accountant) as an
Arbitrator to direct all further arbitration proceedings and to
arbitrate all existing and remaining disputes between the parties.
Should you agree to such appointment, writer hereof must be notified
accordingly and in writing on or before 22 May 2001. If no reply is
received from you on or before such date, a meeting of the partners
and/or their representatives of the Joint Venture will take place on
29 May 2001 at 9:00 am in the foyer
of the Lesotho Sun Hotel in order to reach agreement as to the
appointment of another arbitrator. Should you fail to attend the said
meeting, or should the required agreement not be reached, we shall,
without any further delay and in terms of Section 13(2) of the
Arbitration Act, apply to court for the necessary appointment of the
12.2, 13, 15.2 and 16 of the Agreement in turn provide as follows:-
"12.2 After the completion of the contract and the release of
all bonds, guarantees and obligations given for the performance of
the parties in the Joint Venture, the Joint Venture shall procure the
preparation and auditing of a final balance sheet and profit and loss
account, which shall be approved by the Management Committee, and
from which the final profit and loss sustained by the Joint Venture
shall be ascertained, and distributed to or contributed by the
Parties in proportion to their participation in the Joint Venture.
This clause shall not be construed as prohibiting the interim
distribution of profits or contribution towards losses in the
discretion of the Management Committee.
13. Upon the determination of the Joint Venture in accordance with
the provisions of this agreement, a full and general account shall be
taken of the assets and liabilities of the Joint Venture and of the
transactions and dealings thereof, and with all convenient speed,
such assets shall be sold and realized and the proceeds applied in
paying and discharging such liabilities and the expenses of and
incidental to the winding-up of the Joint Venture affairs and
thereafter in paying to each Joint Venture member its share of such
proceeds in the Specified Proportions. The Joint Venture members
respectively undertake to do all such things as may be necessary so
as to give effect to the above.
15.2 In the event of any differences or dispute of whatsoever nature
arising from this agreement (which shall include any failure to agree
on any matter which requires the Parties' agreement for the purposes
of implementation of this agreement) or any other matter related
thereto which cannot be settled by direct negotiation between
the Parties, such differences or dispute shall be referred to
arbitration in terms of Clause 16 hereof.
16.1 Save as hereinafter provided, any dispute at any time between
any of the Parties hereto in regard to any matter arising out of this
agreement or its interpretation or rectification shall be submitted
to and decided by arbitration.
16.2 The arbitration referred to in 16.1 shall be held:-16.2.1 At
16.3 The arbitrator shall be, if the question in issue is:-
16.3.1 Primarily an accounting matter, an independent accountant;
16.3.2 Primarily a legal matter, a practicing Senior Council (sic) of
not less than five years standing as such;
16.3.3 Any other matter, an independent person unanimously agreed
upon between the parties and failing agreement appointed by the
President for the time being of the South African Federation of Civil
16.4 The arbitrator shall decide the matters submitted to him
according to what he considers just and equitable in the
circumstances and, therefore, the strict rules of law need not be
observed or be taken into account by him in arriving at his
June 2001 the Respondent reacted to the Applicant's proposal to have
Mr. Daniel Havenga appointed as arbitrator in the following terms in
"Following our meeting on Friday 15th June we wish to advise
that the firm Havenga Rossouw Viljoen via their Mr. F.W. Liebenberg
have been appointed by our company Mashai Group Holdings to act as
our consultants. We do not know whether the appointment of Mr. Daniel
Havenga will be objective (sic).
We advise again that the dispute is not only of an accounting nature
but there are legal implications as well. We suggest that Mr. Havenga
be appointed and a legal professional person to be agreed upon by the
joint venture partners as another arbitrator."
become evident later in the course of this judgment the Applicant did
in fact object to Mr. Havenga's appointment as per annexure "GMR15"
dated 27 June 2001.
previously stated, the Applicant in turn proposed the name of
Advocate M.H. Wessels S.C. as joint arbitrator with Mr. Havenga per
annexure "GMR13" dated 21 June 2001.
response as per letter annexure "GMR14" dated 22 June 2001
or annexure "TM2" attached to Respondent's opposing
affidavit (the two annexures are in fact identical), the Respondent
quite significantly did not object to the appointment of Adv. M.H.
Wessels S.C. as arbitrator as such. On the contrary, a proper reading
of annexure "GMR14" has left me in no doubt, and I
accordingly so find, that the Respondent accepted the appointment of
Adv. M.H. Wessels S.C. as arbitrator. That letter which was addressed
to Applicant's attorneys reads as follows:-
P.O. Box 2176
MASERU 100 Kingdom of Lesotho
Attention: Mr, D.P. Molvneaux
Re: Partnership Dispute: Mashai/Raubex.Joint Venture: Contracts 330 -
99/2000 and 317 - 99/2000
We acknowledge with thanks receipt of your letter dated 21st June
regarding the appointment of advocate M.H. Wessels S.C.
We need a meeting with your client (Raubex), Mr. Havenga and advocate
M.H. Wessels, so as to agree on how the arbitration will be
Details of Mr. F.W. (Erick) Liebenberg, mobile phone (083) 308 4232,
(051) 448-8188 Office, (051) 448-8179 telefax. We will phone your
office to agree on dates, time and venue.
Cc: Havenga Rossouw Viljoen Raubex: Bloemfontein
Webber Wentzel Bowens."
well be expected, on 27 June 2001 the Applicant's attorneys wrote a
letter annexure "GMR15" to the Respondent in terms of which
they communicated to him the fact that Mr. Havenga had in fact
declined to act as arbitrator in the matter in the light of the fact
that, as previously stated, the Respondent had already instructed him
to act on his behalf in the arbitration. More importantly, the
Applicant then proposed that Adv. M.H. Wessels S.C. be the sole
arbitrator and that the meeting proposed by the
as per annexure "GMR14" referred to above would be held on
17 July 2001 at Counsel's Chambers where the latter would "meet
the parties and their representatives."
transpired at the meeting with the arbitrator, Adv. M.H. Wessels S.C.
on the 17th July 2001 was recorded by Applicant's attorneys in a
letter annexure "GMR16" addressed to the Respondent and
bearing the same date in the following terms.
"Mr. T. Moruthane Mashai Transport Hire
P O Box 2176
Your ref: Mr. T. Moruthane
Our ref : Mr D.P. Molvneaux/kb (R137) Date 17 July 2001
Re: PARTNERSHIP DISPUTE: MASHAI / RAUBEX JOINT VENTURE: CONTRACTS
330-99-2000 AND 317-99-2000: MEETING ON 17/7/2001 WITH
We record that a meeting was held with the arbitrator. Advocate M.H.
Wessels SC, at 10 am on 17/7/2001. The writer represented Raubex
(Applicant) and you were represented by Mr. H. Tlali.
In the course of the meeting Mr. Tlali indicated that, although he
had authority to represent you at the meeting, he did not have
authority to bind you to specific time limits or pre-trial
formalities. In these circumstances, the arbitrator suggested that
the meeting be postponed and that the parties attempt to reach
agreement on the formalities leading up to the hearing of
the arbitration and that, should the parties not be able to reach
such agreement, then a further meeting be held with him at which
meeting he will give a ruling on the pre-trial formalities which
cannot be agreed upon. Both the writer and your Mr. Tlali agreed to
this suggestion with the result that the meeting was then postponed
for us to put forward a proposal for agreement in respect of such
pre-trial formalities and for you to either agree or disagree with
such proposals and, in the event of such disagreement, to make any
counter proposals which you see fit.
We now enclose herewith our proposal in respect of such pre-trial
formalities and would be pleased if you would respond thereto by
either indicating agreement or disagreement with any or all of the
proposals. Such indication must reach us by the 25th July 2001.
Please note that we have taken the liberty of sending a copy of this
letter to your representative, Mr. Liebenberg of the firm Havenga.
Rossouw and Viljoen.
is not disputed that the meeting with the arbitrator, Adv. M.H.
Wessels S.C., did take place as arranged on the 17th July 2001 and
that annexure "GMR16" accurately records what transpired
thereat. In particular I accept that one Mr. H. Tlali actually
represented the Respondent at the said meeting before the sole
arbitrator, Adv. M.H. Wessels S.C.
July 2001 the Respondent wrote a letter annexure "TM1" to
the Applicant's attorneys in which he now sought to suggest that he
did not attend the meeting with the sole arbitrator on 17 July 2001
because it was the King's birthday in Lesotho. The
paragraph of this letter is crucial in the determination of this
matter and therefore merits quotation in full. It reads:-
"We are not happy with Advocate Wessels being appointed as a
sole arbitrator in this case. We are proposing a more practical
manner of this arbitration case, which will be fair to both parties.
As you are a lawyer by profession we will need to appoint our
representative who is equally qualified as you to advise us on this
matter" (emphasis added).
underlined the word "sole" to highlight the fact that the
Respondent did not object to the appointment of Adv. M.H. Wessels
S.C. as arbitrator as such. The real objection was directed at the
latter acting as a sole arbitrator. Support for this view is to be
found in the fact that the Respondent then made his own counter
proposals in annexure "TM1" in which he stated as follows
in paragraph 17 thereof:-
"Mashai (the name under which Respondent was trading) will not
pay any fees to advocate M.H. Wessels because they do not approve of
him as a sole arbitrator (Raubex so Mashai understands will pay
whatever fees advocate
Wessels charges7' (emphasis added).
be recalled that Raubex is the present Applicant.
view, therefore, it is as clear as daylight that the Respondent fully
accepted that Adv. M.H. Wessels S.C. would sit as arbitrator
afterall. Otherwise there would be no need for
to pay him fees as an arbitrator at all as suggested by Respondent.
it is my considered view that if the Respondent did not want Adv.
Wessels S.C. to act as arbitrator at all, he would have said so in
clear and unambiguous terms. He would not have associated himself
with the latter as arbitrator as suggested by his subsequent conduct
coupled with correspondence referred to above.
authority be needed for the proposition that it is permissible to
have regard to the subsequent conduct of the parties to identify what
they intended in their contract see for example Twenty Seven Bellevue
CC v Hilcove 1994 (3) SA 108(A) at 114.
brings me to the defence raised by the Respondent in this matter.
Respondent's trade-mark answer to Applicant's claim is no doubt to be
found in paragraph 6 of his opposing affidavit wherein he complains
that the arbitration in question was proceeded with by the Applicant
"unilaterally without an Arbitration Agreement having been
entered into in terms of clause 16.3.3 of the Joint Venture Agreement
and indeed without any
with the applicable clauses of the Arbitration Act of 1980."
view the complaint relating to the ''applicable clauses of the
Arbitration Act of 1980" can quickly be dismissed for lack of
particularity to enable the Applicant to know exactly what case to
meet. This is a principle so fundamental, indeed so elementary that
no authority is strictly called for.
Respondent's complaint that the arbitration was proceeded with
"unilaterally without an Arbitration Agreement having been
entered into in terms of clause 16.3.3. of the Joint Venture
Agreement" is also without merit and stands to be dismissed. As
I read clause 16.3.3 of the Agreement, that clause only applies to
"any other matter" other than one that is primarily an
accounting matter (clause 16.3.11 or one that is primarily a legal
matter (clause 16.3.2). Now it is common cause in this matter that
the dispute in question was primarily a legal matter for which it was
sufficient to have one arbitrator only, namely a Senior Counsel of
not less than five years standing as such (clause 16.3.2). There was
no dispute, and indeed I so find, that Adv. M.H. Wessels S.C.
qualified. As I have stated above, and as I repeat now, there was
objection to Adv. M.H. Wessels S.C. acting as an arbitrator as such
in the matter. Nor is it disputed, as the arbitrator himself states
in his ruling, that Mr. H. Tlali actually represented the Respondent
at the latter's request at the hearing of the arbitration on 1
October 2001. Nor is this Court unmindful of the fact, which is again
common cause, that at no stage did the Respondent seek the removal of
Adv. M.H. Wessels S.C. as arbitrator in the matter by order of Court.
Nor did he propose any other arbitrator to replace him. In this
regard it is pertinent to have regard to the provisions of section 14
(2) (a) of the Act. It says this:-
"The court may at any time on the application of any party to
the reference, on good cause shown, set aside the appointment of an
arbitrator or umpire or remove him from office."
be thought that the Court has overlooked it, something must be said
briefly about the definition of the term "arbitration agreement"
in the Act. This is to be found in section 2 thereof and it provides
''arbitration agreement" means a written agreement providing for
the reference to arbitration of any existing dispute or any future
dispute relating to a matter specified in the agreement, whether an
arbitrator is named or designated therein or not."
view an arbitration agreement does not have to be cast in stone in
order to qualify as such. It is sufficient if, on a proper
of an agreement between the parties, it can reasonably be construed
that the parties intended their written undertaking to be an
arbitration agreement. On this test therefore, and bearing in mind
the contents of clauses 15.2 and 16 of the Agreement between the
parties, 1 am satisfied that they did in fact enter into an
complaint by Respondent remains to be dealt with shortly. He
complains in paragraph 23 of his opposing affidavit that Applicant is
not entitled to payment in terms of the award "as it (the
Applicant) has even failed to prove to this Honourable Court
figures therein were computed and arrived at ....." He further
complains that the arbitration proceedings were irregularly conducted
- once more a bare allegation devoid of any particulars necessary to
enable the Applicant to know exactly what case to meet. I should add
that the same thing goes for the Respondent's complaint that the
dispute between the parties is "riddled with disputes of fact"
without identifying them. Nor is the Court, in the particular
circumstances of this case, impressed with the Respondent's further
complaint that the Order prayed for shall subject him to extreme
prejudice and irreparable harm merely because of "the magnitude
of amounts involved." It is, in my view,
Respondent's delaying tactics that are prejudicial to the Applicant.
The history of this matter as fully set out above is self evident in
looked at the arbitrator's award forming the subject matter of this
application and can find nothing in support of the Respondent's
complaints as set out above. Certainly, in my view, the arbitrator
did not commit any irregularity in the conduct of the arbitration
proceedings. He considered the correspondence between the parties and
the Respondent's conduct as fully set out above and came to the
conclusion that the latter was "well aware" that the
arbitration hearing would take place "at the time and venue when
and where it did." The Respondent has got only himself to blame
for having absented himself.
event, it is clear from the arbitrator's award that the evidence of
an independent chartered accountant, Mr. Kritzinger, as well as Mr.
Fourie, the Manager of the Joint Venture Project, was placed before
the arbitrator and that the amount claimed was proved to the
satisfaction of the arbitrator "on a balance of probabilities."
More importantly the arbitrator in my view correctly took into
account the fact that "not one of the claimant's
allegations as contained in his statement of claim was contradicted
or placed in issue." The oral evidence placed before the
arbitrator equally remained uncontradicted.
salutary to bear in mind that, putting aside the question of
downright invalidity ab initio, an award by the arbitrator remains
valid and enforceable until it is set aside or remitted to the
arbitrator by an Order of Court notwithstanding any perceived
irregularities. See for example Sourcecom Technology Solutions (Pty)
Ltd v Kolber and Another 2002 (2) SA 1097 (C) at 1114D-1.
section 29 of the Act significantly provides that unless the
arbitration agreement provides otherwise, an arbitration award shall,
subject to the provisions of the Act, be final and not subject to
appeal and that each party to the reference shall abide by and comply
with the award in accordance with its terms. In this regard the
remarks of Goldstone JA in Amalgamated Clothing & Textile Workers
Union v Veldspun Ltd 1994 (!) SA 162 (A) at 169 bear reference. The
learned Judge of Appeal said this:-
"When parties agree to refer a matter to arbitration, unless the
submission provides otherwise, they implicitly, if not explicitly
(and, subject to the limited power of the Supreme Court under s3(2)
of the Arbitration Act), abandon the. right to litigate in courts of
law and accept that they will be finally bound by the
decision of the arbitrator. There are many reasons for commending
such a course, and especially so in the labour field where it is
frequently advantageous to all the parties and in the interests of
good labour relations to have a binding decision speedily and finally
made. In my Opinion the Courts should in no way discourage parties
from resorting to arbitration and should deprecate conduct by a party
to an arbitration who does not do all in his power to implement the
decision of the arbitrator promptly and in good faith."
It is a
matter of cardinal importance in favour of the Applicant then that
the Respondent has not even applied to Court either to remit the
arbitration award to the arbitrator or set it aside in terms of
sections 33 and 34 of the Act. Those sections provide as follows:-
Remittal of award -
parties to a reference may within six weeks after the publication of
the award to them, by any writing signed by them remit any matter
which was referred to arbitration, to the arbitration tribunal for
reconsideration and for the making of a further award or a fresh
award or for such other purpose as the parties may specify in the
court may, on the application of any party to the reference after
due notice to the other party or parties made within six weeks after
the publication of the award to the parties, on good cause shown,
remit any matter which was referred to arbitration, to the
arbitration tribunal for reconsideration and for the making of a
further award or a fresh award or for such other purpose as the
court may direct.
a matter is remitted under sub-section (1) or (2) the arbitration
tribunal shall, unless the writing signed by the parties or the
order of remittal otherwise directs, dispose of such
matter within three months after the date of the date (sic) of the
said writing or order.
in any case referred to in sub-section (!) or (2) the arbitrator has
died after making his award, the award may be remitted to a new
arbitrator appointed, in the case of a remittal under sub-section
(1), by the parties or. in the case of a remittal under sub-section
(2). by the court.
Setting aside of award -
member of an arbitration tribunal has misconducted himself in
relation to his duties as arbitrator or umpire; or
arbitration tribunal has committed any gross irregularity in the
conduct of the arbitration proceedings or has exceeded its powers;
award has been improperly obtained, the court may, on the
application of any party to the reference after due notice to the
other party or parties, make an order setting the award aside.
application pursuant to this section shall be made within six weeks
after the publication of the award to the parties Provided that
when the setting aside of the award is requested on the ground of
corruption, such application shall be made within six weeks after
the discovery of the corruption and in any case not later than
three years after the date on which the award was so published.
court may, if it considers that the circumstances so require, stay
enforcement of the award pending its decision.
the award is set aside the dispute shall, at the request of either
party, be submitted to a new arbitration tribunal constituted in the
manner directed by the court."
further taken into account the fact that the Respondent has no bona
fide defence to Applicant's claim. He simply relies on a bare denial
of liability without more and, as I have previously stated, his
conduct clearly amounts to delaying tactics.
highlight this point it is no doubt necessary to refer briefly to the
affidavits filed in this matter.
paragraph 9 of the founding affidavit George Muller Raubenheimer
deposes as follows:-
abovementioned profit and loss account showed a total loss suffered
by the Joint Venture in the amount of M3 060 215,00 in its
undertaking of the construction works referred to above, for which
loss the Respondent is liable towards the Applicant in his specified
proportion of 60% of the said loss."
bare denial appears in paragraph 10 of his opposing affidavit in the
herein made are specifically denied as Applicant has intermittently
failed to act in accordance with clause 7.1 of the Joint Venture
Agreement, inclusive of other relevant clauses of the said Agreement.
Applicant is put to the proof of the averments herein made."
requires to be stressed that referral to arbitration is a procedure
designed to ensure finality and expeditious disposal of litigation
between parties. This was no doubt the scheme and object of the Act.
It follows therefore that bare denials such as is the case here
cannot be allowed to frustrate the arbitration process.
factors being considered, as indeed I have endeavoured to demonstrate
in the course of this judgment, I have come to the conclusion that
this is a fit case for the exercise of the Court's discretion in
favour of the Applicant.
application is accordingly granted in terms of prayers 1 and 1 of the
Notice of Motion.
Applicant: Adv. P.J. Loubser
Defendant: Mr. N. Mphalane
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