Leadtrain Assessments (Pty) Ltd and Others v Leadtrain (Pty) Ltd and Others

• Jurisdiction: South Africa
• Citation: 2013 (5) SA 84 (SCA)

Leadtrain Assessments (Pty) Ltd and Others v Leadtrain (Pty) Ltd and Others
2013 (5) SA 84 (SCA)

2013 (5) SA p84

Citation	2013 (5) SA 84 (SCA)
Case No	427/2012; [2013] ZASCA 33
Court	Supreme Court of Appeal
Judge	Nugent JA, Ponnan JA, Tshiqi JA, Swain AJA and Saldulker AJA
Heard	March 11, 2013
Judgment	March 28, 2013
Counsel	DJ Vetten for the appellants.; No appearance for the first and third to fifth respondents.; JH Josephson for the second respondent.

Flynote : Sleutelwoorde B

Arbitration — Award — Remittal — Ambit — Remittal distinguished from review — Good cause for remittal will exist only if arbitrator failed to deal with issue C in arbitration — Once issue addressed and decided, little room for remittal — Something more than mere error (or misdirection) required for good cause to exist — No reason why award of costs should be treated any differently to any other aspect of award — Arbitration Act 42 of 1965, s 32(2).

Headnote : Kopnota

D Under s 32(2) of the Arbitration Act 42 of 1965 a court may on good cause remit an award to the arbitrator. Although the expression 'good cause' is of wide import, it falls to be applied in the context of the Act, which strives for finality in arbitration awards. Good cause requires something more than mere error on the part of the arbitrator, and will pre-eminently exist if the arbitrator fails to deal with an issue before him or her. But once an issue has E been pertinently addressed and decided, there is little scope for a remittal, and this would apply also to costs orders made by the arbitrator. Moreover, awards that are not reviewable under s 33 should not be remitted under s 32(2), for the effect would be to emasculate s 33(1). (Paragraphs [14] – [15] at 87G – 88I.)

Cases Considered

Annotations F

Case law

Benab Properties CC and Another v Sportshoe (Pty) Ltd and Another 1998 (2) SA 1045 (C): distinguished

G Benjamin v Sobac South African Building and Construction (Pty) Ltd 1989 (4) SA 940 (C): dictum at 960G – H applied

Clarke and Others v Semenya NO and Others 2009 (5) SA 522 (W): criticised

John Sisk & Son (SA) (Pty) Ltd v Urban Foundation and Another 1985 (4) SA 349 (N): considered

Joubert t/a Wilcon v Beacham and Another 1996 (1) SA 500 (C): approved in part and criticised in part

H Kathrada v Arbitration Tribunal and Another 1975 (2) SA 673 (A): discussed and distinguished

Kolber and Another v Sourcecom Solutions (Pty) Ltd and Others; Sourcecom Technology Solutions (Pty) Ltd v Kolber and Another 2001 (2) SA 1097 (C): dictum in para [61] applied

I South African Forestry Co Ltd v York Timbers Ltd 2003 (1) SA 331 (SCA): considered

Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA) (2007 (5) BCLR 503; [2007] 2 All SA 243): dictum in para [59] applied.

Statutes Considered

Statutes

The Arbitration Act 42 of 1965, s 32(2): see Juta's Statutes of South Africa J 2012/13 vol 1 at 2-10.

2013 (5) SA p85

Case Information

DJ Vetten for the appellants. A

No appearance for the first and third to fifth respondents.

JH Josephson for the second respondent.

Appeal from a decision in the South Gauteng High Court, Johannesburg (Mabesele J). B

Order

(a)

The appeal is upheld with costs to be paid by the respondents jointly and severally.

(b)

The orders of the court below are set aside and the following orders are substituted: C

'(i)

The application succeeds to the extent that paras 4 and 5 of the costs award made by the arbitrator on 5 August 2011 are made an order of court. The respondents are to pay the costs of the application.

(ii)

The counter-application is dismissed with costs. D

(iii)

In each case the costs are to be paid by the respondents jointly and severally.'

Judgment

Nugent JA and Tshiqi JA (Ponnan JA, Swain AJA and Saldulker AJA concurring): E

[1] Various disputes between the appellants, on the one hand, and the respondents, on the other hand, were referred to arbitration by agreement. The nature of the disputes, and the award that was made on the merits, are not material to this appeal. The appeal concerns only the costs that were awarded by the arbitrator. F

[2] In his costs award the arbitrator ordered the first respondent — Leadtrain (Pty) Ltd — to pay 80% of the costs of the arbitration, and 80% of certain costs that had been incurred in the high court. He went on in para 4 of the award to direct that certain costs be included in the costs of the arbitration. In para 5 he ordered the second respondent — G Mr Lilford — to bear half the costs jointly and severally with Leadtrain (Pty) Ltd. It is those two paragraphs that are relevant to this appeal.

[3] The appellants applied to the South Gauteng High Court for the award to be made an order of court as provided for by s 31 of the Arbitration Act 42 of 1965. That prompted a counter-application by H Mr Lilford for an order setting aside para 4 (partially) and para 5 of the costs award, alternatively, remitting those portions of the award to the arbitrator under s 32(2) of the Act for reconsideration.

[4] By agreement between the parties the award — excluding paras 4 and 5 of...