THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

NOT REPORTABLE
Case no: 977/2013

In the matter between:

BASIL A HOLFORD                                                                                         APPELLANT

and

CARLEO ENTERPRISES (PTY) LTD                                           FIRST RESPONDENT

LARIMAR GROUP LTD (formerly
PUTCO HOLDINGS LTD)                                                          SECOND RESPONDENT

PUTCO LTD                                                                                     THIRD RESPONDENT

P BLIEDEN N.O.                                                                          FOURTH RESPONDENT

M M JOFFE N.O.                                                                              FIFTH RESPONDENT

C H J BADENHORST N.O.                                                             SIXTH RESPONDENT

Neutral citation:
Holford v Carleo Enterprises (977/2013) [2014] ZASCA 195 (28
November 2014)

Coram:
Maya, Shongwe and Saldulker JJA and Mathopo and
Gorven AJJA

Heard:

4 November 2014

Delivered:
28 November 2014

Summary: Review of award of arbitration appeal panel – whether the appeal
panel exceeded its powers – whether the appeal panel committed a gross
irregularity – application of requirements for review.

___________________________________________________________________________

ORDER
________________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Jansen AJ sitting as
court of first instance):

The appeal is upheld with costs, such costs to include the costs of two
counsel where employed.
The order of the North Gauteng High Court is set aside and substituted
with the following order:
„The application is dismissed with costs.‟

JUDGMENT

Gorven AJA (Maya, Shongwe and Saldulker JJA and Mathopo AJA
concurring):

[1] This appeal concerns the approach to be taken in an application which
seeks to review and set aside the decision of an arbitrator. Such an application
was brought before Jansen AJ in the North Gauteng High Court, Pretoria. In
that application, only the limited grounds afforded by s 33(1)(b) of the
Arbitration Act 42 of 1965 applied. This section reads as follows:
„(1) Where-
(b)   an arbitration tribunal has committed any gross irregularity in the conduct of the
arbitration proceedings or has exceeded its powers…
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.‟

These are narrow grounds for interference in an arbitral award and must be
strictly construed. As was said by O‟Regan ADCJ in Lufuno Mphaphuli and
Associates (Pty) Ltd v Andrews & another:1
„Given the approach not only in the United Kingdom (an open and democratic society within
the contemplation of s 39(2) of our Constitution), but also the international law approach as
evinced in the New York Convention (to which South Africa is a party) and the UNCITRAL
Model Law, it seems to me that the values of our Constitution will not necessarily best be
served by interpreting s 33(1) in a manner that enhances the power of courts to set aside
private arbitration awards. Indeed, the contrary seems to be the case. The international and
comparative law considered in this judgment suggests that courts should be careful not to
undermine the achievement of the goals of private arbitration by enlarging their powers of
scrutiny imprudently. Section 33(1) provides three grounds for setting aside an arbitration
award: misconduct by an arbitrator; gross irregularity in the conduct of the proceedings; and
the fact that an award has been improperly obtained. In my view, and in the light of the
reasoning in the previous paragraphs, the Constitution would require a court to construe these
grounds reasonably strictly in relation to private arbitration.‟

[2] The approach of this court to a review of an arbitration award is settled
and consistent with this dictum. As was succinctly summarised by Harms DP in
Telcordia Technologies Inc v Telkom SA Ltd:2
„By agreeing to arbitration parties to a dispute necessarily agree that the fairness of the
hearing will be determined by the provisions of the Act and nothing else.
. . . .
Last, by agreeing to arbitration the parties limit interference by courts to the ground of
procedural irregularities set out in s 33(1) of the Act. By necessary implication they waive the
right to rely on any further ground of review, “common law” or otherwise.‟

[3] It is as well to set out the procedural history of the matter. The appellant,
who had been in senior management with the third respondent, instituted action
in the South Gauteng High Court, Johannesburg against the first respondent.

1 Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews & another 2009 (4) SA 529 (CC) para 235.
2 Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA) paras 50 & 51.

The appellant claimed that he had sustained damages from the breach of an
agreement he had concluded with the first respondent. The pleadings had
closed, further particulars had been sought and supplied by the parties and the
matter had been set down for trial. On the appointed day, there was no judge
available and the parties concluded a written agreement referring the matter to
arbitration. It also contained a provision for an appeal from the decision of the
arbitrator. After hearing evidence, the arbitrator granted absolution from the
instance on the basis that the appellant had failed to prove the agreement on
which he had relied in the pleadings. The appeal tribunal upheld the appeal
against this finding and awarded the appellant damages in the sum of
R3 848 000 along with interest and costs. The first three respondents then
brought an application to review and set aside the award of the appeal tribunal.
The court below granted this relief, set aside the award of the appeal tribunal
and thereafter granted leave to appeal to this court.

[4] The basis of the judgment was that the appeal tribunal had both exceeded
its powers and committed a gross irregularity. It must be said that the judgment,
although long, does not clearly set out the issues in question or employ clear
reasoning in arriving at these conclusions. The crisp issue on appeal is whether
the court below was correct in these findings. The fourth to sixth respondents,
who constituted the appeal tribunal, took no part in the matter, either in the
court below or in this court. For the sake of convenience, I shall refer to the first
three respondents as „the respondents‟.

[5] The respondents relied on a three-pronged attack against the approach of
the appeal tribunal. Two were based on the appeal tribunal having exceeded its
powers and the third was based on its having committed a latent gross
irregularity. The first was to the effect that, because the issues were defined in
the arbitration agreement as being those that arise on the pleadings, the appeal

tribunal, in finding that an agreement which was not pleaded in the particulars
of claim had been concluded, exceeded its powers. The second was that, sitting
as an appeal tribunal, it was bound by factual findings made by the arbitrator
unless it could point to a „demonstrable and material misdirection on fact‟ by
the arbitrator. In disregarding the factual finding to the effect that no oral
agreement was concluded, without doing so, the appeal tribunal therefore
exceeded its powers. The third was that the appeal tribunal failed to properly
deal with a non-disclosure by the appellant in s 311 proceedings, failed to
analyse correspondence between August and November 2002 and, finally,
failed to deal with the need of the appellant to replicate and prove that increased
earnings which he would otherwise not have received should not be taken into
account to reduce any damages he may have sustained as a result of the breach.
In the result, it was submitted that the appeal tribunal arrived at findings which
no reasonable arbitrator could have come to and thus committed a latent gross
irregularity.

[6] The appellant‟s claim was for damages alleged to have been sustained as
a consequence of the breach of an agreement whereby he would acquire
3 percent of the shares in the second respondent when it was constituted as an
empowerment company. The agreement was pleaded as follows in the
particulars of claim:
„4.1
During or about the period June 2002 until June 2005 and at or near Sandton, the
plaintiff, acting personally, and the first defendant . . . concluded an oral agreement, the
material express, alternatively tacit, further alternatively implied terms of which were as
follows:
4.1.1 the shareholding in the third defendant, alternatively in a new entity to be formed,
would be structured so as to provide for the participation of:

4.1.1.1 various black economic empowerment role players;

4.1.1.2 the senior management of the third defendant including the plaintiff;

4.1.1.3 the first defendant;

4.1.1.4 and certain of the employees of the third defendant;
4.1.2 the plaintiff would receive 3% of the issued share capital in the third defendant or the
new entity so formed;
4.1.3 the plaintiff would be required to pay par value for the plaintiff‟s shares;
4.1.4 the first defendant, as the majority shareholder, alternatively as the sole shareholder in
the third defendant, was obliged to ensure that the plaintiff obtained the plaintiff‟s shares in
the third defendant or the new entity, as the case may be;
4.1.5 the plaintiff would be obliged to sell the plaintiff‟s shares in such new entity or the
third defendant, upon his retirement from the third defendant or the new entity, as the case
might be, subject to the pre-emptive rights of the remaining shareholders;
4.1.6 the price for the sale of those shares would be a market related priced between willing
buyer and willing seller.‟
As I have mentioned, the respondents requested further particulars for trial. In
his reply, the appellant set out in detail a series of events, with reference to
documents, stretching from 2002 to 2005 which, he said, supported the
averment of the pleaded agreement having been concluded during this period.

[7] The first of the two submissions that the appeal panel exceeded its powers
is to the following effect. The respondents contended that the arbitrator was
limited to the agreement pleaded in the particulars of claim. They submitted that
the appeal tribunal impermissibly broadened the pleadings by reference to the
further particulars. In this regard, paragraph 8 of the reference to arbitration
provides that the dispute referred to arbitration „shall be as defined by the
pleadings in the action.‟ There is clear law that pleadings exclude further
particulars.3 If nothing further had been said, the matter would have fallen
squarely within the dictum in Hos+Med Medical Aid Scheme v Thebe Ya
Bophelo Healthcare Marketing & Consulting (Pty) Ltd & others,4 where Lewis
JA held as follows:

3 Ruslyn Mining & Plant Hire (Pty) Ltd v Alexkor Ltd [2012] 1 All SA 317 (SCA) para 18.
4 Hos+Med Medical Aid Scheme v Thebe Ya Bophelo Healthcare Marketing & Consulting (Pty) Ltd & others
2008 (2) SA 608 (SCA) para 30.

„In my view it is clear that the only source of an arbitrator's power is the arbitration
agreement between the parties and an arbitrator cannot stray beyond their submission where
the parties have expressly defined and limited the issues, as the parties have done in this case
to the matters pleaded. Thus the arbitrator, and therefore also the appeal tribunal, had no
jurisdiction to decide a matter not pleaded.‟
Where the pleadings in that matter defined the issues to be decided, it was held
not permissible to broaden the pleadings as could a court along the lines set out
in Shill v Milner.5 In order to be broadened, the pleadings would have to be
amended.6

[8] The underlying rationale for the dictum in Hos+Med is found in the
reference to the source of an arbitrator‟s powers. In an arbitration, the autonomy
of the parties is paramount.7 In Lufuno, O‟Regan ADCJ held that:
„Parties are entitled to determine what matters are to be arbitrated, the identity of the
arbitrator, the process to be followed in the arbitration, whether there will be an appeal to an
arbitral appeal body and other similar matters.‟8
The powers of an arbitrator therefore derive from the arbitration agreement. In
the present matter, it is accordingly necessary to construe the arbitration
agreement to determine the ambit of the powers accorded to the arbitrator. In
particular, it must be determined whether the powers of the arbitrator included
the power to determine issues not arising strictly on the pleadings but which, as
would be the case with a high court judge, had been broadened by the
appropriate ventilation of issues in accordance with the principles set out in
Shill v Milner.

[9] Paragraph 21 of the arbitration agreement reads as follows:

5 Shill v Milner 1937 AD 101 at 105. This decision referred with approval to the earlier decisions to similar
effect in Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at 198 and Wynberg Municipality v Dreyer
1920 AD 439 at 443.
6 Hos+Med para 31, 32.
7 Telcordia para 4.
8 Paragraph 219.

„The arbitrator shall have such powers as are allowed by law to a High Court of the Republic
of South Africa to ensure the just, expeditious, economical and final determination of the
dispute and shall have all of the powers afforded to a judge of the High Court of South Africa
in terms of the Uniform Rules read with the provisions of the Arbitration Act.‟
In the context of how it came about that the matter was referred to arbitration
and an overall reading of the agreement, it is clear that the object of the parties
was to have the arbitrator determine the matter on the same footing as would a
judge have done had one been available in court that morning. Paragraph 21 is
entirely consistent with, and clearly gives effect to, that object. It clothed the
arbitrator with powers which placed her or him in the same position as a high
court judge dealing with a matter in the high court. As was put to counsel during
the hearing before us, a construction of the arbitration agreement as a whole,
and that paragraph in particular, indicates that what the parties intended was
simply a change of venue and presiding officer and nothing more. Since a court
would have been entitled to apply the principles set out in Shill v Milner, the
arbitrator was also entitled to do so. Accordingly, the arbitrator was entitled to
allow the issues on the pleadings to be broadened by proper ventilation where
no prejudice ensued to either party as a result.

[10] The broadening of the issues in line with the further particulars was
foreshadowed in the appellant‟s opening address. No objection was raised to
this approach by the respondents at the time or at any time thereafter. The
respondents at no stage contended that they had suffered prejudice as a result of
the broadening of the issues. The respondents did not contend that the issues
were not fully and properly ventilated. In the result, it cannot be held that the
appeal tribunal exceeded its powers in finding that an agreement, not fully
pleaded in the particulars of claim, had been concluded.

[11] The second respect in which the respondents submitted that the appeal
tribunal exceeded its powers was in its treatment of findings of fact on the part
of the arbitrator. It was submitted that the appeal tribunal was only entitled to
interfere with factual findings if there was a „demonstrable and material
misdirection on fact‟ by the tribunal of first instance.9 The respondents
contended that the appeal tribunal interfered with factual findings of the
arbitrator without referring to any such misdirections. Special reliance was
placed on what was said to be the factual finding that no oral agreement as
pleaded had been proved.

[12] In this regard, the crucial part of the award concerns whether agreement
had been reached to contract on a certain basis while agreeing to leave
outstanding matters to future negotiation or whether the parties contemplated
that consensus on the outstanding issues would have to be reached before a
binding agreement came into existence.10 The arbitrator found that the latter
position applied saying „[i]t is quite apparent from the earlier correspondence
that the parties regarded the manner and circumstances in which the members
and management would dispose of their shares as an important feature of their
proposed acquisition of the shares‟. He further held that it was „inconceivable
that the parties could have intended to conclude an agreement entitling the
members of senior management to acquire shares in the proposed company
without reaching agreement upon the terms upon which they would acquire,
hold and dispose of such shares‟. He held, specifically, with reference to the
documents and the evidence of the appellant, that the parties, far from reaching
agreement on certain terms and leaving others open for negotiation, „intended
that there must be agreement at the very least on the terms upon which the

9 The submission was couched in these terms, relying on Fourie v Firstrand Bank Ltd 2013 (1) SA 204 (SCA)
para 14 and other cases.
10 GCEE Alsthom Equipments et Enterprises Electriques, South African Division v GKN Sankey (Pty) Ltd
1987 (1) SA 81 (A) at 92A-F.

members of senior management could acquire, hold and dispose of the shares,
before a binding contract came into existence.‟ Since, he said, no such
agreement was ever reached, no agreement came into existence.

[13] The appeal tribunal found that the appellant and three other senior
managers accepted an offer communicated to them by way of a letter dated
2 August 2002. This letter communicated a resolution taken by the first
respondent on 31 July 2002 that „subject to shareholders approval [it would] sell
its Putco shares at not less than R4,00 each to a new limited company not listed
to be formed under conditions detailed hereunder . . . .‟ The conditions were,
inter alia, that the shares of ten cents each would be allocated as to 17.5 percent
to „Senior Management comprised of 7 individuals to be nominated at 2.5%
each‟ and that those shareholders wishing to sell must first offer the shares to
other existing shareholders. The tribunal disagreed with the finding of the
arbitrator that the letter of 2 August 2002 was not an offer made with the
intention to contract and that no agreement had been concluded. It found that an
agreement that the appellant would obtain a 3 percent shareholding in the
„restructured and empowered entity runs like a golden thread through all the
significant documents . . . They straddle the various empowerment models –
commencing with the MCI deal, SAFIKA and finally the successful one in
terms of which Putco‟s management and staff would be owning 43% of the
company‟.

[14] It is so that the appeal tribunal was limited to the powers of an appeal
court. In general terms, an appeal court is bound by factual findings of a trial
court. However, various factors militate against an inflexible approach in this
respect. In President of the Republic of South Africa v South African Rugby

Football Union,11 this issue was ventilated and the following principles
emerged:
a)
A distinction must be drawn between the „subjective manner in which a
witness testifies orally, as opposed to the objective content of the evidence so
given.‟12
b)
If a finding is based on the demeanour of the witness (the subjective
manner mentioned above), this is a „tricky horse to ride‟13 and not determinative
without regard to other factors, including the probabilities.14
c)
There may be a misdirection of fact by the trial judge where his or her
reasons are unsatisfactory or the record shows that he or she overlooked other
facts or probabilities.15

[15] In the first instance, the appeal tribunal found the arbitrator‟s answer to a
key question demonstrably wrong where he held that the letter of 2 August 2002
was „simply a notification to senior management of a resolution‟ taken by the
company. This flies in the face of direct, unchallenged and uncontradicted
evidence of the appellant that, when the letter was given to the senior
management at a meeting by Mr Carleo, the senior management indicated that
they accepted the offer contained in that letter. There was no evidence that,
when they did so, Mr Carleo demurred on the basis that what they purported to
accept was not an offer made with the requisite intention to contract.

[16] In addition, the finding of the arbitrator that there was only a series of
proposals without any firm agreement flies in the face of the acceptance of the
proposal of senior management dated 21 October 2002 by the resolution of

11 President of the Republic of South Africa v South African Rugby Football Union & others 2000 (1) SA 1
(CC).
12 Paragraph 77.
13 Paragraph 78, quoting S v Kelley 1980 (3) SA 301 (A) at 308B-D.
14 Paragraph 79.
15 Paragraph 80, quoting R v Dhlumayo & another 1948 (2) SA 677 (A) at 706.

11 November 2002 of the Board of the first respondent. This proposal allocated
3 percent of the shareholding to 4 members of the executive management group,
including the appellant, and 2 percent of the shareholding to 3 members of the
executive management group. It also dealt with other material aspects, including
how any sale of the shareholding to be thus acquired would take place. The
Board resolved „[t]hat the letter of the Putco Senior Management with regard to
the Empowerment Project dated 21 October 2002, be approved in its entirety.‟ It
cannot be communicated more clearly that this was intended to give rise to an
enforceable agreement.

[17] In the third place, the arbitrator himself indicated that his findings were
based on an analysis of the documents and not on the subjective way in which
the witnesses testified. He held that, „[i]n my view, the issue of whether or not a
contract was concluded can be decided based upon the contents of these
documents and the evidence of the plaintiff.‟ In such circumstances, the appeal
tribunal was in as good a position as was the arbitrator and it was not necessary
to find that he had committed a material misdirection before it could draw its
own conclusions.

[18] The net result of these three factors is that it was not shown that the
appeal tribunal was not entitled to interfere with the factual findings of the
arbitrator and, accordingly, it was not shown that the tribunal had exceeded its
powers in this respect. As Harms DP explained:
„[I]t is a fallacy to label a wrong interpretation of a contract, a wrong perception or
application of South African law, or an incorrect reliance on inadmissible evidence by the
arbitrator as a transgression of the limits of his power. The power given to the arbitrator was
to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or
wrongly; and to determine what evidence was admissible, rightly or wrongly.‟16

16 Telcordia para 86.

The second ground of attack was therefore without merit and should have been
rejected by the court below.

[19] As regards the question of a latent gross irregularity, the respondents
submitted that the appeal tribunal misconceived the nature of its enquiry. It also
failed to deal properly with the omission of the appellant, in the s 311
proceedings, to mention the existence of the agreement. In essence, they
submitted and the court below found, that the findings of the appeal tribunal
were incorrect in so many respects that the only reasonable inference to draw
was that it had committed a latent gross irregularity. The court below held that
the factual and legal findings of the appeal tribunal were „erroneous in a number
respects.‟ It went on to hold that:
„[G]iven all the factual and legal errors made by the Appeal Panel which the applicants
highlighted in argument - cannot it be said that the Appeal Panel misconstrued the entire
nature of the enquiry and did not fully understand the reasoning of the arbitrator? Can it not
be said that the cumulative effect of errors is so drastic that the Appeal Panel‟s award falls
foul of the provisions of section 33 of the Arbitration Act relied upon by the applicants?‟

[20] The starting point in determining whether a gross irregularity has been
committed is set out in Ellis v Morgan17 where Mason J laid down the basic
principle:
'But an irregularity in proceedings does not mean an incorrect judgment; it refers not to the
result, but to the methods of a trial, such as, for example, some high-handed or mistaken
action which has prevented the aggrieved party from having his case fully and fairly
determined.'
The real question concerning a gross irregularity is to determine whether there
was a flaw in the conduct of the proceedings rather than only a flaw in the
reasoning of the appeal tribunal.18

17 Ellis v Morgan; Ellis v Desai 1909 TS 576 at 581.
18 Sidumo & another v Rustenberg Platinum Mines Ltd & others 2008 (2) SA 24 (CC) para 264.

[21] The respondents contended for a latent gross irregularity. As has been
said by this court:19
„For a defect in the conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the
inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that
a reasonable arbitrator could not reach on all the material that was before the arbitrator.
Material errors of fact, as well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient for an award to be set aside, but are only of any
consequence if their effect is to render the outcome unreasonable.‟

[22] The respondent relied mainly on the appeal tribunal having ignored the
probabilities concerning the section 311 proceedings and its failure to analyse
correspondence between August and November 2002. In addition, it was
submitted that, since the respondents had pleaded that the appellant had
benefitted from an improved package as a result of the alleged breach, he was
obliged to replicate facts by which the additional income said to arise from the
breach should not be applied in reduction of his damages. Because he had not
done so, it was submitted, the appeal tribunal committed a latent gross
irregularity in awarding him the damages which it did.

[23] It was correctly submitted that a latent gross irregularity involves the
„failure by the arbitrator to take into account a material fact‟ and „includes the
converse situation of taking into account a materially irrelevant fact.‟20
Otherwise, the decision must be „substantively unreasonable in the sense that no
reasonable commissioner, acting reasonably, could have reached the decision on
the evidence and the inferences drawn from it.‟21

19 Herholdt v Nedbank Ltd (COSATU as amicus curiae) 2013 (6) SA 224 (SCA) para 25. The notion of a latent
irregularity was first introduced by Schreiner J in Goldfields Investment Ltd v City Council of
Johannesburg 1938 TPD 551.
20 Herholdt para 16.
21 Herholdt para 26, quoting the court below in that matter.

[24] The approach to the section 311 proceedings does not meet that test. The
appeal tribunal, having expressed disquiet at the appellant‟s conduct, quite
correctly held that the failure of the appellant to mention the agreement in those
proceedings did not impact on the veracity of his uncontested and unchallenged
evidence that the senior management had accepted the proposal of 2 August
2002 or on the objective evidence in terms of which the company, in its
resolution of 11 November 2002, accepted the proposal of senior management
of 31 October 2002. As regards the analysis of the correspondence, this was
specifically referred to by the appeal tribunal in its award, albeit in summarised
form containing a reference to the relevant documents in a footnote. The
analysis of the correspondence gave rise to the conclusion of the panel of the
„golden thread‟ referred to in its award. The appeal tribunal also dealt with the
point taken by the respondent that the appellant had received funds which he
would not have received but for the breach. It held that factually he did not
become a party to the third respondent‟s executive compensation scheme. Any
additional income was derived from and incentive scheme. The funds received
therefore did not result from the breach. None of these amounted to a failure to
take into account a material fact or its converse.

[25] In addition, taken as a whole, the appeal tribunal‟s decision cannot be
said to have been substantively unreasonable. It cannot be said that no
arbitrator, acting reasonably, could have reached the decision reached by the
appeal tribunal. It clearly understood the nature of the enquiry and cannot be
said to have undertaken it in the wrong manner. The result was not
unreasonable. No gross irregularity on the part of the appeal tribunal, whether
latent or otherwise, was therefore demonstrated.

[26] It was not shown that the appeal tribunal exceeded its powers in either of
the respects contended for by the respondents. Nor was it shown that the appeal

tribunal committed a gross irregularity. Accordingly, no basis was laid under
s 33(1)(b) of the Arbitration Act for reviewing and setting aside the award of the
appeal tribunal. It follows that the court below erred in doing so.

[27] In the result, the following order is granted:
The appeal is upheld with costs, such costs to include the costs of two
counsel where employed.
The order of the North Gauteng High Court is set aside and substituted
with the following order:
„The application is dismissed with costs.‟

T R Gorven

Acting Judge of Appeal

Appearances

For Appellant:
A Subel SC (with him A C Botha)
Instructed by:
Louis Gishen & Associates, Sandton
Lovius Block Attorneys, Bloemfontein

For Respondent:

P N Levenberg SC (with him A Lapan)
Instructed by:
Werksmans Incorporated, Sandown
Matsepes Inc., Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

28 November 2014

STATUS

Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

HOLFORD v CARLEO ENTERPRISES (977/2013) [2014] ZASCA 195
(28 November 2014)

The SCA today upheld an appeal by Basil A Holford against the
reviewing and setting aside in the North Gauteng High Court, Pretoria, of
an award of an arbitration appeal tribunal. The court below held that the
award was reviewable under s 33(1)(b) of the Arbitration Act 42 of 1965
in that the appeal tribunal had exceeded its powers in two respects and
had committed a latent gross irregularity.
The SCA, setting out the approach to be taken to such a review, held that
none of the three grounds on which the court below had reviewed and set
aside the award were valid. It upheld the appeal and substituted an order
dismissing the application for review with costs orders in both courts.