Benjamin v Sobac South African Building and Construction (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1989 (4) SA 940 (C)

Benjamin v Sobac South African Building and Construction (Pty) Ltd
1989 (4) SA 940 (C)

1989 (4) SA p940

Citation	1989 (4) SA 940 (C)
Court	Cape Provincial Division
Judge	Selikowitz J
Heard	August 21, 1989; August 25, 1989; May 10, 1988; June 7, 1989; June 8, 1989
Judgment	July 18, 1989

Flynote : Sleutelwoorde B

Practice — Pleadings — Amendment of — General policy to encourage full ventilation of real issues between parties — Prejudice to respondent nonetheless the deciding factor in grant or refusal of C application to amend — Where proposed amendment will not contribute to settlement of real issues between parties, such amendment should not be allowed — Amendment should also not be allowed if proposed amendment would result in claim not viable in law. D Arbitration — The award — Remittal of under s 32(2) of Arbitration Act 42 of 1965 or setting aside of under s 33(1) — Court may not assist applicant under one section where applicant's only claim brought under other section — Court may thus not set aside award where applicant's only claim is for remittal under s 32(2). E Arbitration — The award — Remittal of under s 32(2) of Arbitration Act 42 of 1965 — Applicant required to show 'good cause' — Where applicant for remittal under s 32(2) relies on misconduct of arbitrator, or gross irregularity in proceedings, or exceeding of powers by tribunal, or improperly obtained award (all grounds for setting aside award under s F 33(1)) to show 'good cause', test as stringent as that applicable in application under s 33(1) — Applicant cannot thus use s 32(2) as 'easy' option for obtaining effective setting aside of award when procedure under s 33(1) more appropriate.

Arbitration — The award — Remittal of under s 32(2) of Arbitration Act 42 of 1965 — Court has discretion to order remittal where further G evidence discovered after award published — Guidelines for remittal in such circumstances set out.

Headnote : Kopnota

The Court has a discretion to allow a party to amend his pleadings or, in the case of an application, to file further affidavits at any time before judgment. The policy which guides the Court in regard to H amendments is to encourage a full and proper ventilation of the real dispute between the parties. An amendment nonetheless remains an indulgence which must always be justified by the applicant and, therefore, it is the prejudice to the respondent which is the deciding factor in the grant or refusal of the application. Where a proposed amendment will not contribute to the settlement of the real issues between the parties, such amendment ought not to be granted; nor should an application to amend be allowed if the proposed amendment would result in a claim not viable in law.

I In casu, the applicant, who had applied in terms of s 33 of the Arbitration Act 42 of 1965 for an order setting aside an arbitrator's award, sought to amend his claim by substituting for his application under s 33 a claim under s 32(2) for an order remitting the award to the arbitrator for reconsideration and a fresh award. The Court held that it was necessary for it to consider whether or not the claim for relief under s 32(2) was competent before it granted the amendment. Under the provincial legislation preceding the enactment of the Arbitration Act in J 1965, and

1989 (4) SA p941

A under the common law, a Court could decide mero motu to remit a matter to an arbitration tribunal when faced with an application seeking only to set aside the tribunal's award. By contrast, the wording of ss 32(2) and 33 of the Act respectively made it clear that the Court may not assist a party under one section where such party's only claim is based upon the other section. Thus, where an applicant seeks an order remitting an award in terms of s 32(2), making no claim in the alternative, the Court would be precluded from setting aside the award.

B Section 33(1) provides four grounds upon which an award may be set aside, namely (a) misconduct by an arbitrator in relation to his duties; (b) gross irregularity in the conduct of the proceedings; (c) that the tribunal exceeded its powers; and (d) that the award was improperly obtained. Section 32(2) requires a party seeking remittal to show 'good cause' why the matter should be reconsidered by the arbitration tribunal. Where an applicant for remittal in terms of s 32(2) relies upon misconduct, gross irregularity, exceeding of powers or that the C award was improperly obtained for alleging the requisite 'good cause', the test is as stringent as that to be applied to an application brought in terms of s 33(1). A finding that the test for 'good cause' under s 32(2) was less stringent than that under s 33(1) would be to emasculate s 33(1) and allow an applicant, seeking the effective setting aside of an award, to achieve that effect by an 'easy' route under s 32(2).

D There is no doubt that, in principle, a Court has a discretion in terms of s 32(2) to remit an award where further evidence is discovered after the publication of the award. The guidelines developed for Court proceedings where a litigant applies to re-open his case and to produce further evidence are equally applicable to arbitration matters (though in some cases they may require adaptation to accommodate the principles of arbitration where such principles differ from those applicable in Court proceedings). The following are the applicable guidelines:

(a)

E The cardinal principle in arbitration proceedings is that litigation should be quickly and finally concluded. The corollary is that issues which have been raised and decided should not normally be re-opened.

(b)

The applicant must show that he could not by reasonable diligence have adduced the evidence timeously.

(c)

The evidence must be weighty and material. It must be evidence which would be practically conclusive. Fresh evidence which only corroborates evidence which has already been considered will not F suffice.

(d)

Prejudice to the opponent must be considered.

The abovementioned guidelines assume that the evidence sought to be led is admissible. It should be noted that if the arbitration tribunal is not bound by the rules of evidence applicable in Court proceedings then evidence which is inadmissible in a Court of law cannot on that basis G alone be rejected.

Colman v Dunbar 1933 AD 141 applied.

The amended claim proposed by the applicant in this instance would be an application for remittal in terms of s 32(2) on the same papers as those filed in support of the application for an order setting aside the award in terms of s 33(1), supplemented by 'new evidence' in the form of three newspaper reports based upon information furnished by the respondent subsequent to the arbitrator's award. As to the proposed amended application, the Court held that the claim for remittal was, in effect, a claim for the setting aside of the whole award. It held that bringing H such a claim under s 32(2) was inappropriate and could not be permitted. It dismissed the claim for remittal based upon the 'new evidence' as being without merit in that the evidence itself was not new (it was, at most, corroborative of evidence led at the arbitration), nor was it weighty (it was disputed by the respondent), nor was it material to the applicant's case as presented to the arbitration tribunal. The main application for the setting aside of the arbitrator's reward was I dismissed on the grounds that the applicant had failed to make out a case on any of the bases mentioned in s 33(1) of the Act.

Case Information

Application in terms of s 33(1) of the Arbitration Act 42 of 1965 for the setting aside of an award and supplementary applications. The facts J appear from the reasons for judgment.

1989 (4) SA p942

A G D van Schalkwyk SC (with him H M Carstens ) for the applicant (in 1987) and J van der Berg SC (with him M Fitzgerald ) for the applicant (in 1988 and 1989).

M Seligson SC (with him J I Immerman SC and D van Reenen ) for the respondent.

B Cur adv vult.

Postea (July 18).

Judgment

Selikowitz J:

Applicant sought relief against respondent in arbitration C proceedings. The arbitrator's award dismissed the applicant's claims with costs. Applicant now alleges before this Court that the arbitrator misconducted himself in relation to his duties and applies in terms of s 33 of the Arbitration Act 42 of 1965 ('the Act') for an order setting aside the award. That is 'the principal application'.

D As background to the principal application it is useful to record that applicant envisaged the development of a new town on certain farmland near Kuils River. The town has become known as Silversands and forms part of a development of a larger area known as the Blue Downs development.

E Applicant, as trustee for a company to be formed, concluded agreements of sale with the various farmers who owned the land which was to be consolidated into the property upon which Silversands would be developed. Applicant employed land-surveyors with the necessary expertise to prepare layout plans of the proposed town and to assist him F to obtain the necessary approvals which were required from the local and provincial authorities to enable the creation of the envisaged new town. By dint of his untiring efforts, as well as the professional help he received and through the investment of substantial funds, applicant succeeded in obtaining approval in principle for the establishment of his new town.

G For various reasons applicant decided that he did not wish to participate further in the actual development of Silversands. On 7 September 1985 and at Mannheim in the Federal Republic of Germany applicant and respondent concluded an agreement which has become known by them as 'the Mannheim agreement'. On 25 April 1986 and at H Johannesburg the parties...