Court name
Supreme Court
Case number
SA 36 of 2010
Case name
Do Rego v JC Beerwinkel t/a JC Builders
Media neutral citation
[2012] NASC 17
Judge
Shivute CJ












REPORTABLE





CASE
NO.: SA36/2010








IN
THE SUPREME COURT OF NAMIBIA








In
the matter between:
















DR ANIBAL DA
CUNHA DO REGO



Appellant









and
















J C
BEERWINKEL t/a J C BUILDERS



Respondent









Coram:
SHIVUTE CJ, MAINGA JAetO’REGAN AJA





Heard
on:
05 July 2012





Delivered
on:
22 August 2012













APPEAL
JUDGMENT









O’REGAN
AJA (SHIVUTE CJ et MAINGA JA concurring):



  1. This
    matter arises from a building contract entered into in 1999 by the
    appellant, Dr Anibal Da Cunha do Rego, and the respondent, JC
    Beerwinkel trading as JC Builders. A dispute arose between these
    parties as to monies allegedly owed by the appellant to the
    respondent and that dispute was submitted to arbitration. Mr
    Beerwinkel successfully applied to court to have the resultant
    arbitration award made an order of court. Dr do Rego now appeals
    against the whole of the judgment and order made in the High Court.






Facts



  1. In
    May 1999, the parties entered into a building contract for the
    construction of a residential dwelling for the appellant in
    Auasblick, Windhoek. Clause 26 of the contract provided for disputes
    between the parties to be determined by arbitration. Towards the end
    of the building works, a dispute arose between the parties
    concerning amongst other things, defects in the building work
    alleged by the appellant, additional building work done by the
    respondent and the question of monies owed by the appellant to the
    respondent.







  1. Some
    two years later, the parties agreed to refer the dispute between
    them to arbitration and agreed that Mr Philip Main would be the
    arbitrator. The parties exchanged pleadings in the form of a
    statement of claim, as well as a plea and claim in reconvention.
    However, the arbitration did not proceed as the parties terminated
    the services of Mr Main. Some years later, in 2006, the parties
    agreed to appoint Mr Eyvind Finsen as arbitrator in the dispute, but
    again the arbitration did not happen as Mr Finsen died in early
    2008.







  1. On
    25 July 2008, the legal practitioners for Mr Beerwinkel wrote to the
    President of the Namibia Institute of Architects in terms of clause
    26 of the building contract requesting him to nominate three persons
    in good standing with the Namibian Council of Architects and
    Quantity Surveyors who would be suitable to conduct the arbitration.
    A copy of this letter was sent to Dr do Rego. The President of the
    Institute replied to this letter on 14 August and provided the names
    of three people who were willing to accept nomination to act as
    arbitrator in the dispute. On 16 October 2008, Mr Beerwinkel
    selected Mr Wouter van Zijl to serve as arbitrator and again
    notified Dr do Rego of this decision.







  1. On
    the same date, Mr Beerwinkel’s legal practitioners informed Dr
    do Rego that a meeting would be held with the arbitrator on 22
    October in Windhoek. On the morning of 16 October, the appellant
    contacted the arbitrator, Mr van Zijl, and informed him that he was
    unable to attend the meeting. The meeting proceeded in his absence.
    A minute of the meeting was prepared and faxed to Dr do Rego. The
    minute recorded that the Summary Procedure Rules of the Association
    of Arbitrators (Southern Africa), 5th ed (2005) would
    apply to the arbitration. It also recorded the arbitrator’s
    fee, as well as the date and place of the hearing. The arbitration
    was set for 20 November but the minute also recorded that if either
    of the parties had a problem with the date, they should contact the
    arbitrator within seven days, before close of business on Thursday
    30 October, and explain why they were unavailable and propose an
    alternative date within 14 days of the proposed date. The minute
    also recorded that if either party failed to be present at the
    hearing, the arbitrator would make an award on the available and
    submitted information.








  1. On 17 November, Dr do Rego sent an
    email to the arbitrator in which he stated that he would not be
    available on 20 November and that 'this matter has long expired'. Dr
    do Rego also stated that the arbitrator had'shown prejudice' in the
    way he would be handling the matter.







  1. On
    20 November, the arbitration proceeded in the absence of the
    appellant and on 8 December, the arbitrator handed down his award
    upholding the respondent’s claim and dismissing the counter
    claim lodged by the appellant.






Proceedings
in the High Court



  1. Mr
    Beerwinkel then launched proceedings in the High Court for the
    arbitrator’s award to be made an order of Court in terms of s
    31 of the Arbitration Act, 42 of 1965, on 13 August 2009. Dr do Rego
    lodged a notice of intention to oppose on 21 August as well as a
    rule 35(12) notice calling for Mr Beerwinkel to produce certain
    documents for inspection. Mr Beerwinkel complied with the rule 35
    Notice on 21 October 2009. Dr do Rego then requested an extension of
    time for the filing of his answering affidavit until the end of
    December. The respondent acquiesced.







  1. However,
    Dr do Rego did not lodge his answering affidavit by the end of
    December 2009. In fact, it was not filed until 24 September 2010.
    By then, the application had been set down on the unopposed roll for
    hearing in the week of 11 October 2010. The respondent filed a rule
    30 Notice on 6 October seeking for the answering affidavit to be set
    aside as an irregular step. On 7 October the appellant lodged an
    application seeking condonation for the late filing of his answering
    affidavit, as well as the postponement of the hearing of the
    application. The application was heard by Henning AJ in the High
    Court on 11 October.







  1. On
    19 October, judgment was handed down dismissing both the application
    for condonation of the late filing of the answering affidavit, and
    the application for the postponement. The judgment also granted the
    relief sought by the respondent in his notice of motion. It is
    against this judgment that the appellant now appeals.






Issues
for determination in this Court



  1. Three
    issues fall for determination in this appeal. The first is whether
    the High Court erred in refusing the appellant’s application
    for condonation for the late filing of his answering affidavit and
    the second is whether the High Court erred in refusing the
    appellant’s application for a postponement. These two issues
    are related and will be dealt with together below. The third is
    whether the High Court erred in granting the substantive relief
    sought by the respondent. I will deal with this issue separately.







  1. Before
    turning to these issues, there is one preliminary matter that needs
    consideration. The appellant’s heads of argument were filed
    five court days late. The appellant lodged an application for
    condonation for the late filing of the heads. At the commencement of
    the appeal hearing, counsel for the appellant moved the application
    and the Court granted it orally. The reasons for that order are the
    following.







  1. The
    appellant explained that the heads were filed late because the
    appellant’s legal representative had mistakenly thought that
    he had prepared written heads in the High Court, and therefore only
    reserved one day to work on the heads for the appeal. He only
    realized his error shortly before the heads were due which resulted
    in theheads being late. The respondent did not oppose the
    application for the grant of condonation. Given that the period for
    which condonation is sought is only five days, that the reason
    tendered for the delay is a bona fide mistake, that the respondent
    did not suggest that he had been prejudiced by the delay, and that
    the Court itself was not prejudiced by the delay, the Court granted
    the application for condonation at the hearing of this matter.






The
refusal of the applications for condonation of the late filing of the
answering affidavit and for the postponement of the hearing in the
High Court



  1. Both
    the decision to refuse condonation for the late filing of an
    answering affidavit
    1
    and the decision to refuse a postponement are based on the exercise
    of discretion.
    2The
    approach to be followed by an appeal court in considering appeals
    against such decisions was clearly set out by Mahomed AJA sitting in
    this Court in
    Myburgh
    Transport v Botha t/a S A Truck Bodies
    1991
    (3) SA 310 at 314F–G, which concerned an appeal against the
    refusal of an application for a postponement:







'An
appeal court is not entitled to set aside the decision of a trial
court granting or refusing a postponement in the exercise of its
discretion merely on the ground that if the members of the Court of
appeal had been sitting as a trial Court they would have exercised
their discretion differently.







An
appeal Court is, however, entitled to, and will in an appropriate
case, set aside the decision of a trial Court granting or refusing a
postponement where it appears that the trial Court had not exercised
its discretion judicially, or that it had been influenced by wrong
principles or a misdirection on the facts, or that it has reached a
decision which in the result could not reasonably have been made by a
Court properly directing itself to all the relevant facts and
principles.'
3







  1. The
    question thus arises whether the High Court in refusing these
    applications did not exercise its discretion judicially, or was
    influenced by wrong principles or a misdirection of the facts, or
    that it was a decision that no court could reasonable have made.







  1. In
    relation to the refusal to condone the late filing of the opposing
    affidavit, it is common cause that the affidavit was only served and
    filed some 20 calendar days before the hearing of the matter, more
    than 9 months after it was due. Despite this extreme delay, the
    affidavit was not accompanied by an application for condonation of
    the late filing of the affidavit. Indeed, an application for
    condonation was only filed once the respondent lodged a rule 30
    Notice some five days before the hearing. An application for
    condonation was then lodged the day after the service of the rule 30
    Notice.







  1. In
    his affidavit in support of the condonation application, the
    appellant pointed to the respondent’s delay in proceeding with
    the arbitration and suggested that his delay in filing his opposing
    affidavit should be viewed in the context of the respondent’s
    delay in prosecuting the arbitration. The appellant also explained
    that his delay had arisen because his legal representative was
    engaged in other work and unable to find time to prepare the
    opposing affidavit.







  1. On
    behalf of the appellant, it was argued that this Court should
    interfere with the decisions of the High Court to refuse condonation
    of the late filing of the opposing affidavit and a postponement of
    the hearing. The basis upon which this Court should interfere with
    the decisions of the High Court was that the High Court judge erred
    in law or on the facts (a) by focusing on the manner in which the
    appellant had approached the matter, and not on the delays that the
    respondent had occasioned in pursuing the arbitration and (b) by
    failing to consider the issue of good cause 'in its entirety' as the
    determining factor which should have included a consideration of the
    prejudice occasioned by the late filing of the opposing affidavit.







  1. In
    determining the condonation application, the High Court judge
    focused on the reason given by the appellant for the delay in
    lodging the answering affidavit. As mentioned above, that reason was
    that appellant’s legal representative was unable to prepare
    the opposing affidavit due to pressure of work. The High Court
    judge, quite correctly, noted that at least since the reported
    decision of
    Ecker v Dean
    1939 SWA 22, the courts of
    this country have been unwilling to accept that a litigant is
    entitled to insist on being represented by a particular counsel.
    The consequence of this principle is that it will not avail a
    litigant to explain a delay on the basis that his chosen legal
    representative was unavailable to assist him. The views expressed
    in
    Ecker’s case
    have been endorsed by other courts both here and in South Africa
    ,4
    including by this Court in
    Aztec
    Granite (Pty) Ltd v Green and Others
    2006
    (2) NR399 at 403B where this Court reasoned:








'It
is trite law that a Court will be extremely reluctant to grant a
postponement of an appeal, when the sole reason is that an
application and/or the applicant’s instructing legal
practitioners have a preference for a particular legal representative
and that particular counsel is not available.'
5






  1. The
    principle that a litigant is not entitled to delay the process of
    justice by insisting on being represented by a particular legal
    representative is an important one. Underlying it are two concerns.
    The first is that the convenience of one party cannot be put above
    the convenience of the other parties. The second concern, as
    important as the first, if not more important, is the need to
    protect the general public interest in the timely and efficient
    administration of justice
    .6The
    principle that a litigant may not cause delays by insisting on a
    particular legal representative is one that will not ordinarily be
    relaxed simply because there have already been delays in the conduct
    of a dispute. Nor will it be departed from because the other party
    is not prejudiced. For the principle protects not only the interests
    of the other parties to the litigation but also the public interest
    in the efficient administration of justice.







  1. Accordingly,
    the appellant’s argument that the High Court judge erred in
    applying the rule that a litigant may not delay the administration
    of justice by insisting on chosen counsel without regard to the
    broader context of the dispute between the parties and, in
    particular, the delays that had beleaguered the arbitration, cannot
    be upheld. Whatever the earlier delays, the High Court judge cannot
    be said to have applied a wrong legal principle in concluding that
    the appellant’s material delay in filing his opposing
    affidavit,for the reason that his chosen legal representative was
    not available to draft it earlier, had not established the good
    cause required to be afforded condonation. Similarly, the High
    Court judge cannot be faulted for failing to consider whether the
    respondent had been prejudiced by the inordinate delay caused as a
    result of the non-availability of appellant’s chosen counsel.
    For even if there was no prejudice, something the respondent
    disputes, that would not have been determinative. For even if the
    respondent was not prejudiced, there is a broader interest at stake,
    the public interest in the speedy administration of justice.







  1. The
    application for a postponement was made from the Bar on the morning
    of the hearing. It may be true, as appellant’s counsel argued
    in the appeal hearing, that one of the reasons for the application
    may have been to afford the respondent an opportunity to deal with
    the material in the appellant’s opposing affidavit. Once,
    however, the opposing affidavit was not admitted, that reason fell
    away. In any event, an application for a postponement will only be
    granted if an applicant can show that it is in the interests of
    justice to grant the application.
    7
    In determining this question, important considerations include that
    the application for a postponement be timeously made,
    8
    that it be made in good faith,
    9
    and that the party seeking the postponement provide a full
    explanation of the reason why the postponement is necessary.
    10
    In this case, the appellant met none of these requirements.








  1. In refusing the application for a
    postponement, the High Court judge noted the appellant’s
    complete failure to comply with the Rules and with Practice
    Directive 26(1), which stipulates that there should be five days’
    notice between the filing of an interlocutory application and the
    scheduled hearing. The High Court judge concluded that, given the
    appellant’s flagrant non-compliance with the Rules, it was an
    appropriate case to refuse the application for a postponement as
    well as the application for condonation without a consideration of
    the prospects of success.







  1. Given
    the circumstances of the application for the postponement, the
    appellant has not established that the High Court judge erred either
    on the law or the facts in refusing the application.






The
grant of substantive relief by the High Court



  1. Given
    the conclusion that the High Court’s decision to refuse the
    applications for condonation and a postponement should not be
    interfered with on appeal, the remaining issue is whether the High
    Court was correct in granting the relief sought by the respondent
    who was the applicant there. The relief sought was that the award
    made by the arbitrator be made an order of court. Again given that
    the opposing affidavit was never admitted, this question must be
    determined on the basis of the founding papers lodged by the
    respondent in the High Court.







  1. For
    the first time in oral argument before this Court on appeal, the
    appellant argued that the High Court erred in making the arbitration
    award an order of court, because on the record the arbitrator was
    not properly appointed in terms of the building contract and
    accordingly was not authorized to conduct the arbitration.







  1. Clause
    26 of the building contract between the parties provided for
    arbitration in the event of disputes arising. Clause 26 reads as
    follows:








'If
any dispute or difference shall arise between the Employer or the
Architect on his behalf, and the Contractor, either during the
progress or after the completion of the works or after the
determination of the employment of the Contractor under this
contract, abandonment or breach of the contract, as to the
construction of the contract, or as to any matter or thing arising
thereunder, or as to the withholding by the Architect of any
certificate to which the Contractor may claim to be entitled, then
the Architect shall determine such dispute or difference by a written
decision given to the contractor. The said decision shall be final
and binding on the parties, unless the Contractor within fourteen
days of the receipt thereof by written notice of the Architect
disputes the same, in which case or in case the Architect for
fourteen days after a written request to him by the Employer or the
Contractor fails to give a decision as aforesaid, such dispute or
difference shall be and is hereby referred to the arbitration and
final decision of the person named in the attached schedule or, in
the event of his death or unwillingness or inability to act, or if no
person is named therein, an arbitrator selected by the Contractor
from two persons nominated on the request of either party by the
President for the time being of the Namibian Council of Architects
and Quantity Surveyors, and the award of such arbitrator shall be
final and binding on the parties.'







  1. Counsel
    for the appellant submitted at the appeal hearing that the
    conditions precedent to the appointment of an arbitrator stipulated
    in article 26 of the building contract had not been met, and that
    therefore the appointment of Mr Van Zijl as arbitrator was invalid.
    Counsel further argued that before the arbitration award could be
    made an order of court, the court has to be satisfied that the
    arbitrator had been properly appointed. Counsel referred us in this
    regard to
    Christopher
    Brown, Ltd v Genossenschaft Oesterreichischer Waldbesitzer
    Holzwirtschaftsbertriebe Registrierte Genossenschaft mit
    Beschrankter Haftung
    [1953]
    2 All ER 1039 (QB) in which Devlin J held that in order for a
    plaintiff to have an arbitration award made an order of the Court,
    the plaintiff must establish five things: the conclusion of an
    arbitration agreement; the dispute fell within the terms of the
    arbitration agreement; the arbitrators were appointed in terms of
    the agreement; the award was made by the arbitrators; and the
    awarded amount has not been paid.
    11







  1. Section
    31 of the Arbitration Act, 42 of 1965, provides that an arbitration
    award may be made an order of court, on application by any party to
    the agreement referring the dispute to arbitration after due notice
    to the other party. Before a court will make an order, however, it
    must be satisfied of that the arbitration took place in terms of a
    valid arbitration agreement, that the arbitrator made the award and
    that the award has not been met
    .12It
    may be that a court will refuse to make the award an order of Court
    if on the record it is clear that the award for some reason is
    vitiated by illegality.
    13







  1. The
    appellant’s argument is that the arbitrator could not have
    been validly appointed under clause 26 of the building contract
    because the conditions precedent set out in that clause had not been
    met, and that the arbitrator was not appointed under any other
    arbitration agreement. 'Arbitration agreement' is defined in the
    Arbitration Act as follows:








'a
written agreement providing for the reference to arbitration of an
existing dispute or any future dispute relating to a matter specified
in the agreement, whether an arbitrator is named or designated
therein or not.'






  1. Clause
    26 clearly constitutes an arbitration agreement as contemplated in
    the Act in that it evinces the parties’ agreement to refer
    disputes that may arise between them arising out of the subject
    matter of the building contract to arbitration. The question then is
    whether the appellant is correct to assert that on the record before
    this Court the respondent has failed to show that the arbitrator was
    appointed in terms of clause 26. In support of this argument,
    counsel for the appellant asserted that clause 26 had not been
    relied upon by the parties as the basisof an agreement to arbitrate
    until the respondent’s representatives wrote to the President
    of the Namibian Council of Architects and Quantity Surveyors in July
    2008. Theseare questions of fact that require us to peruse the
    record carefully.







  1. The
    record makes clear that when the dispute arose between the parties
    as to the amount of money owing to the Contractor, the parties
    referred the dispute to arbitration. The arbitrator was to be Mr
    Main. From the documents attached to the founding affidavit, there
    appears to have been a firm agreement between the parties that their
    dispute should be resolved by arbitration, although no further
    written arbitration agreement appears to have been signed. These
    documents include the respondent’s statement of claim in the
    arbitration as well as the appellant’s reply and counterclaim.
    According to the founding affidavit, the arbitration did not proceed
    before Mr Main for various reasons, including a dispute about fees.







  1. Thereafter
    Mr Finsen was appointed as arbitrator. Again minutes of a meeting
    with Mr Finsen attended by both the appellant and the respondent are
    annexed to the founding affidavit. These minutes evince a clear
    agreement to have the dispute between the parties determined by
    reference to arbitration. Again no formal written arbitration
    agreement appears to have been signed.







  1. There
    were delays in proceeding with the arbitration before Mr Finsen and
    then unfortunately Mr Finsen died unexpectedly at the beginning of
    2008. Some time later, the respondent’s legal
    representatives, relying on clause 26 of the building contract,
    wrote to the President of the Namibian Council of Architects and
    Quantity Surveyors asking him to nominate some names to serve as
    arbitrator. Names were duly furnished and the respondent selected
    Mr WH Van Zijl to act as arbitrator. This correspondence was copied
    to the appellant.







  1. The
    appellant was also informed of the preliminary meeting before the
    arbitrator and he contacted the arbitrator shortly before the
    meeting to say that he would not be able to attend. Minutes of that
    meeting were forwarded to the appellant.Those minutes made plain
    that the date for the arbitration had been set for 20 November 2008
    and that if he could not make that meeting he should inform the
    arbitrator within seven days. On 17 November, the appellant sent an
    email to the arbitrator that he would not be attending the
    arbitration on 20 November, that 'this matter has long expired' and
    that 'in your minutes you have shown prejudice in the way you would
    be handling the matter'.







  1. What
    appears plain from the founding affidavit and the documents annexed
    to the founding affidavit is that once the dispute between the
    parties had arisen, they had mutually agreed that it would be
    determined by arbitration. That the appellant had consented to
    arbitration as a means of determining this dispute, appears from his
    statement of defence and counterclaim in the proceedings before Mr
    Main, as well as in the minutes of the meeting before Mr Finsen. In
    neither of these documents is there any suggestion that the
    appellant disputes that the matter has been properly referred to
    arbitration. Nor is there any suggestion from any of these documents
    that the parties were pursuing an arbitration agreement other than
    the agreement expressed in clause 26 of the building contract.







  1. On
    the record before us, therefore, the appellant at least until
    November 2008 acted consistently with an understanding that the
    dispute between him and the respondent would be resolved by
    arbitration. Nothing on the record suggests that that arbitration
    would take place other than in accordance with clause 26 of the
    building contract. Nor is there any suggestion that the appellant
    ever asserted that the arbitration could not proceed because the
    conditions precedent in clause 26 had not been met. Given the
    conduct of the appellant up till November 2008, there is no
    suggestion on the record that the parties considered that the
    arbitration could not proceed because the conditions precedent in
    clause 26 had not been met. In the circumstances, the respondent has
    established on a balance of probabilities that the arbitration
    followed from clause 26 of the building agreement.







  1. The
    record therefore establishes on a balance of probabilities that the
    parties had entered into a valid arbitration agreement; that the
    subject matter of the dispute between them fell within the scope of
    that agreement; that the arbitrator was selected in terms of the
    agreement; the arbitrator has made an award and the appellant has
    failed to pay the amount ordered in the award. The appellant’s
    argument that the arbitration could not be conducted because the
    conditions precedent set out in clause 26 of the building
    contracthad not been met cannot be sustained.







  1. One
    final issue needs to be considered. In the written heads, though not
    in oral argument, counsel for the appellant contended that the
    arbitrator had misdirected himself in proceeding in the absence of
    the appellant. As set out above the appellant was given notice of
    the arbitration. Section 15(2) of the Arbitration Act provides that
    an arbitrator may proceed in the absence of a party if that party
    fails to appear 'after having received reasonable notice of the time
    when and place where the arbitration proceeding will be held'
    without having shown good cause for the failure to appear. There is
    no suggestion on the record that once the appellant obtained notice
    of the arbitration, he made any serious effort to be present or to
    be legally represented. In the circumstances, it cannot be said that
    the decision by the arbitrator to proceed on 20 November constitutes
    a material irregularity such as to vitiate the award.
    14







  1. It
    is clear, as counsel for the respondent argued, that the appellant
    took no steps to have the award set aside in terms of s 33(1) of the
    Arbitration Act. That section permits a party to apply to court to
    have an arbitration award set aside where the party considers that
    an arbitrator has misconducted himself or herself, or committed a
    gross irregularity in the course of the arbitration. It is not
    necessary to decide now whether a party is obliged to pursue the
    remedy provided by s 33 if he or she considers there to have been a
    gross irregularity in the arbitration and not permitted to raise it
    only as a defence in proceedings to have the award made an order of
    court under s 31, as recently the Supreme Court of Appeal in South
    Africaheld
    .15
    Given that the appellant has not established that the arbitration
    was tainted by a material irregularity, this question can stand over
    for decision on another day.







  1. For
    the above reasons, the appeal must fail.






Costs



  1. Given
    that the appeal fails, the ordinary rule as to costs should apply.
    The appellant must be ordered to pay the costs of the respondent,
    such costs to include the costs of one instructed and one
    instructing counsel. The Court’s attention was drawn to the
    fact that the respondent was represented in the appeal with the
    assistance of the Legal AidDirectorate. In terms of s 17(2) of the
    Legal Aid Act, 29 of 1990, the costs awarded to the respondent shall
    be paid to the Director of Legal Aid.






Order



  1. The
    following order is made:




1. The application for condonation of
the late filing of appellant’s heads of argument on appeal is
granted.



2. The appeal is dismissed.



3. The appellant is ordered to pay the
costs of the respondent in opposing the appeal, such costs to include
the costs attendant upon the employment of one instructed and one
instructing counsel.














________________________


O’REGAN
AJA














________________________


SHIVUTE
CJ














________________________


MAINGA
JA



APPEARANCES














APPELLANT:






Mr
J A N Strydom


Instructed
by G F Köpplinger Legal Practitioners



RESPONDENTS:






Mr
R Tötemeyer


Instructed
by Dr Weder, Kauta & Hoveka Inc










1
See United Plant Hire (Pty) Ltd v Hills and Others 1976 (1)
SA 717 at 720E–G.




2Myburgh
Transport v Botha t/a S A Truck Bodies
1991 (3) SA 310 at 314
F–G.




3
Id at 314G – 315B. See also National Coalition for Gay and
Lesbian Equality and Others v Minister of Home Affairs and Others

2000(2) SA 1 (CC) at para 11.




4
See, for example, Centirugo AG v Firestone (SA) Ltd 1969 (3)
SA 318 (T).




5
At 403 A – B.




6
See the similar point made by the South African Supreme Court of
Appeal in McCarthy Retail Ltd v Shortdistance Carriers CC
2001 (3) SA 482 (SCA) at para 28.




7
See National Police Service Union and Others v Minister of Safety
and Security and Others
2000 (4) SA 1110 (CC) at 1112C–F.




8
See Myburgh Transport v Botha t/a SA Truck Bodies, above n 2,
at 315C–D.




9
Id at 315E.




10
Id at 315B.




11
1953 (2) All ER 1035 (QB) at 1040d–e.




12
Id. See, in this regard as well, Vidavsky v Body Corporate of
Sunhill Villas
2005 (5) SA 200 (SCA) at para 17; Butler and
Finsen Arbitration in South Africa at273 and Ramsden The
Law of Arbitration: South African and International Arbitration

(Juta, 2009) at 189. See also Crystal Springs Aerated Water Co v
Kan
1902 TH 21 at 26 where the Court stated that a court may
refuse to make an award an order of court 'if it were clearly made
to appear that the award was illegal'.




13
See Crystal Springs Aerated Water Co, id.




14
See, Crystal Springs Aerated Water Co, cited above n 12.




15
See Bantry Construction Services (Pty) Ltd v Raydin Investments
2009 (3) SA 533 (SCA) at para 21. See also Butler and Finsen
Arbitration in South Africa: Law and Practice para 7.10. For
a possibly contrasting approach, see Vidavsky v Body Corporate of
Sunhill Villas,
cited above n 12, at para 16, a case in which
an arbitrator proceeded where the appellant had not received notice
of the arbitration proceedings before they were held. The SCA held
this to be material irregularity vitiating the arbitration
proceedings and accordingly that the award was null and voice and
could not be made an order of court.