BCL LTD v. Trengove No and Another 2002 (1) BLR 221 (HC)

Source:
Botswana Law Reports (1964 to 2019(4))/CHRONOLOGICAL LISTING OF CASES 2020 Volume 1/2002 (1)/Cases Reported/BCL LTD v. TRENGOVE NO AND
ANOTHER 2002 (1) BLR 221 (HC)
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http://jutastat.juta.co.za/nxt/gateway.dll/frbo/2/4142/4147/4183?f=templates$fn=default.htm
BCL LTD v. TRENGOVE NO AND ANOTHER 2002 (1) BLR 221 (HC)
Citation 2002 (1) BLR 221 (HC)
Court High Court, Lobatse
Case No Misca No 465 of 2001
Judge Collins AJ
Judgment March 5, 2002
Counsel CW Jordaan SC (with him J H Engelbrecht and L Mphuchane) for the applicant.
No appearance for the first respondent.
JR Gautschi SC (with him B S Spilg SC, G E Turner and L P Khupe) for the second respondent.
Annotations
Flynote
Arbitration Interim injunction in terms of s 16(2)(f) of Arbitration Act (Cap 06:01) 'Interim' in expression 'an interim injunction or similar relief' in s
16(2)(f) of Act Means 'interim injunction pending final relief' Final relief competent under s 16(2)(f) Application to court for stay of arbitration
2002 (1) BLR p222

pending delictual action for damages to be instituted in High Court Permissible to invoke s 16(2) of Act for such A purpose Court having power to
grant or refuse stay of arbitration without usurping or interfering with arbitrator's authority.
Arbitration Award What constitutes Application to arbitrator for stay of arbitration pending delictual action for damages to be instituted in High
Court Arbitrator's ruling on such application not an 'award' but a procedural step in arbitration. B
Statute Words and phrases 'Interim' in expression 'an interim injunction or similar relief' Meaning of in s 16(2)(f) of Arbitration Act (Cap 06:01)
Held to mean 'interim injunction pending final relief'.
Arbitration Stay of arbitration Application in terms of s 16(2)(f) of Arbitration Act (Cap 06:01) for stay of arbitration pending delictual action for
damages to be instituted in High Court Delictual action based fraudulent misrepresentation C inducing contract Arbitration arising out of
disputes under same contract Applicant required to demonstrate that respondent's conduct amounted to material fraudulent misrepresentation
inducing contract No misrepresentation impacting upon contractual substance proved Application dismissed.
Delict Fraudulent misrepresentation Misrepresentation In order for misrepresentation to come into existence, tangible statement of fact
impacting upon contractual substance later agreed required Contract by tender Tender in D two parts, both required to be signed by tenderer
Tenderer signing one part only Signature page on part signed photocopied and inserted in unsigned part Tender awarded on basis that both
parts of tender documents signed Falsehood confined to deceiving party awarding tender that unsigned part of tender actually signed by
tenderer so that tender would be considered No false statement of fact in relation to content of tender Accordingly no misrepresentation
inducing contract. E
Delict Action for damages Breach of contractual relationship Such not per se giving rise to claim in delict.
Headnote
The applicant (BCL) and the second respondent (AMCO) had in 1999 entered into certain construction contracts F in respect of extensions to
one of the shafts at the applicant's nickel mine. The contract was concluded after the second respondent's tender for the contract had been
accepted by BCL. Certain disputes arose between BCL and AMCO and an arbitration agreement was concluded between BCL and AMCO. After
the arbitration had been running for some 30 days before the first respondent as arbitrator, evidence emerged indicating to BCL that AMCO,
represented by its agent (Shaft Sinkers) had been guilty of what BCL described as 'material fraudulent G misrepresentation' during the tender
process which induced BCL to enter into the contracts with AMCO. As a result of this discovery, BCL elected to avoid the contracts ab initio
and to institute an action, based in delict, out of the High Court against both AMCO and Shaft Sinkers for damages consequent upon the latter's
alleged unlawful actions. BCL then applied for an amendment to its plea (in the arbitration proceedings) in order to resile H from its earlier
admission that there had been due compliance by AMCO in the tender process and to allege that there had in fact been no such compliance and
to allege that there had been a fraudulent misrepresentation inducing the contracts u[on which it wished to rely in order to avoid the
contractsa and the arbitration agreement spawned by those contracts. The amendment was granted. Thereafter BCL applied
2002 (1) BLR p223
formally to the arbitrator for an order staying the arbitration proceedings pending the outcome of its intended A action against AMCO and Shaft
Sinkers. The arbitrator concluded in his award that his jurisdiction was limited to disputes which were subject to arbitration in terms of the
arbitration agreement (and accordingly the allegation of AMCO's misrepresentation was not so subject to arbitration), but he nevertheless
refused to grant a stay, preferring instead to direct BCL to the High Court for such a decision, if it was so minded. The arbitrator granted B a
postponement to enable BCL to bring such an application in the High Court.
The application was brought in the High Court in terms of s 16(2)(f) of the Arbitration Act (Cap 06:01), which provided that '(a)ny party to a
submission is entitled, subject to the law relating to procedure of the court, to obtain from the court an order . . . (f) for an interim injunction
or similar relief'. AMCO raised two points in limine. C The first was that s 16(2)(f) did not apply to the relief sought by BCL, it being contended
that the rule nisi granted in the application was formulated in such a way as to claim a final interdict rather than an 'interim injunction' which s
16(2)(f) authorised and that the court had no inherent jurisdiction over the conduct of a private arbitration in the same way that it did in
respect of litigation before it and was confined to the statutory powers contained in the Act, which alone regulated the arbitration. The second
was that, as the arbitrator had already D made an award refusing a stay of the arbitration proceedings, the court was in effect being asked to
set aside the arbitrator's award, which the court had no power to do unless BCL invoked s 13(2) of the Act, which provided for the setting aside
of an award if the arbitrator has 'misconducted the proceedings' or where 'an arbitration E award has been improperly procured', neither of
which was contended for by BCL.
Held, dismissing the points in limine, (1) That the word 'interim' carried no magic: it meant 'in the meantime' and that translated as 'between
now and a certain further event'. All interim court orders necessarily suspended activity by a respondent pending some final outcome. If it were
otherwise we would be in the land of Lewis F Carroll where 'temporary' meant 'final' and 'in the meantime' meant 'there is sometimes no end to
the meantime', and this notion had to be rejected. Section 16(2)(f) had to mean 'interim injunction pending final relief'.
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(2) That, even if such interpretation were wrong, assistance was to be found in the full wording of subs (f), ie 'an interim injunction or similar
16(2)(f) of Act Means 'interim injunction pending final relief' Final relief competent under s 16(2)(f) Application to court for stay of arbitration
2002 (1) BLR p222

pending delictual action for damages to be instituted in High Court Permissible to invoke s 16(2) of Act for such A purpose Court having power to
grant or refuse stay of arbitration without usurping or interfering with arbitrator's authority.
Arbitration Award What constitutes Application to arbitrator for stay of arbitration pending delictual action for damages to be instituted in High
Court Arbitrator's ruling on such application not an 'award' but a procedural step in arbitration. B
Statute Words and phrases 'Interim' in expression 'an interim injunction or similar relief' Meaning of in s 16(2)(f) of Arbitration Act (Cap 06:01)
Held to mean 'interim injunction pending final relief'.
Arbitration Stay of arbitration Application in terms of s 16(2)(f) of Arbitration Act (Cap 06:01) for stay of arbitration pending delictual action for
damages to be instituted in High Court Delictual action based fraudulent misrepresentation C inducing contract Arbitration arising out of
disputes under same contract Applicant required to demonstrate that respondent's conduct amounted to material fraudulent misrepresentation
inducing contract No misrepresentation impacting upon contractual substance proved Application dismissed.
Delict Fraudulent misrepresentation Misrepresentation In order for misrepresentation to come into existence, tangible statement of fact
impacting upon contractual substance later agreed required Contract by tender Tender in D two parts, both required to be signed by tenderer
Tenderer signing one part only Signature page on part signed photocopied and inserted in unsigned part Tender awarded on basis that both
parts of tender documents signed Falsehood confined to deceiving party awarding tender that unsigned part of tender actually signed by
tenderer so that tender would be considered No false statement of fact in relation to content of tender Accordingly no misrepresentation
inducing contract. E
Delict Action for damages Breach of contractual relationship Such not per se giving rise to claim in delict.
Headnote
The applicant (BCL) and the second respondent (AMCO) had in 1999 entered into certain construction contracts F in respect of extensions to
one of the shafts at the applicant's nickel mine. The contract was concluded after the second respondent's tender for the contract had been
accepted by BCL. Certain disputes arose between BCL and AMCO and an arbitration agreement was concluded between BCL and AMCO. After
the arbitration had been running for some 30 days before the first respondent as arbitrator, evidence emerged indicating to BCL that AMCO,
represented by its agent (Shaft Sinkers) had been guilty of what BCL described as 'material fraudulent G misrepresentation' during the tender
process which induced BCL to enter into the contracts with AMCO. As a result of this discovery, BCL elected to avoid the contracts ab initio
and to institute an action, based in delict, out of the High Court against both AMCO and Shaft Sinkers for damages consequent upon the latter's
alleged unlawful actions. BCL then applied for an amendment to its plea (in the arbitration proceedings) in order to resile H from its earlier
admission that there had been due compliance by AMCO in the tender process and to allege that there had in fact been no such compliance and
to allege that there had been a fraudulent misrepresentation inducing the contracts u[on which it wished to rely in order to avoid the
2002 (1) BLR p223
relief'. Interpreting the last two words eiusdem generis, the court would have no G hesitation in finding that 'final' relief was competent.
(3) That BCL's application before the court to stay the arbitration was not to set aside the arbitrator's 'award' to the contrary. The arbitrator's
ruling was not an 'award' at all but a procedural step which had to be viewed in conjunction with other procedural steps considered by the
arbitrator, including the application to amend BCL's plea and the application to postpone the arbitration to enable the present application to be
brought. H
(4) That BCL was correct to invoke the authority supplied by s 16(2)(f) of the Act in order to secure an interim injunction staying the arbitration
and the court has, in the present circumstances, the power to grant or refuse a stay of the arbitration without usurping or interfering with the
arbitrator's authority.
2002 (1) BLR p224
(5) That, on the facts, BCL had satisfied the general requirements for a final interdict or injunction. A
As to the application itself, BCL alleged that the evidence that emerged during the arbitration showed the perpetration of a fraud by AMCO,
represented by Shaft Sinkers, which induced the contracts and which in turn formed the basis for the arbitration. In consequence of the
discovery of the fraud, BCL elected to avoid the contracts with AMCO and to institute a delictual action for damages against AMCO. It appeared
that the contracts in question were to be financed by the European Development Fund (the EDF) and that the EDF, in return for such financing,
insisted on adherence to certain basic general regulations of their own. It appeared that B the tender form which had to be signed by tenderers
was in two parts, portion A and portion B, and that both portions had to be signed. The person authorised by AMCO in England to sign the
tender documents had in fact C only signed portion A. The tender documents had been prepared in South Africa by AMCO's agent, Shaft
Sinkers. The evening before the tender documents had to be submitted, Shaft Sinkers realised that only portion A thereof had been signed. A
photocopy of the signature page of portion A was made and inserted as the signature page in the tender form for portion B. When the tender
was opened and considered, this discrepancy was not noticed and AMCO was in due course awarded the contract. Furthermore, when the
pleadings in the D arbitration were filed, BCL (as defendant) did not put the validity of the tender in issue inn its plea as it was unaware of
anything untoward in AMCO's tender and instead admitted that AMCO had submitted a valid tender in respect of portion B thereof. Upon
discovery of the signature issue, BCL applied to the arbitrator for leave to amend its plea, the effect of the amendment being to withdraw the
admission of validity of the tender and to E plead instead that the tender in respect of portion B was invalid and that the completion of the
tender form by means of the aforesaid photocopying was a fundamental violation of the EDF regulations governing the tender process. Despite
AMCO's opposition, the application for leave to amend the plea was granted by the arbitrator.
Held, dismissing the application, that (1) BCL's application for a stay of the arbitration could not succeed unless it could demonstrate that
AMCO's (and Shaft Sinker's) conduct in relation to the signature issue was a material F fraudulent misrepresentation inducing the contracts. If
the court found against BCL on the signature issue, ie that AMCO did not perpetrate a fraudulent misrepresentation inducing the contract, BCL's
cause of action in the intended delictual action did not even arise and a stay of the arbitration should not be ordered. G
(2) In order for a misrepresentation to come into existence, there had to be a tangible statement of fact which the utterer of the falsehood
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which it set out to do, and that was BCL's consideration of its tender the falsehood was confined to deceiving BCL that the person who signed
2002 (1) BLR p223
relief'. Interpreting the last two words eiusdem generis, the court would have no G hesitation in finding that 'final' relief was competent.
(3) That BCL's application before the court to stay the arbitration was not to set aside the arbitrator's 'award' to the contrary. The arbitrator's
ruling was not an 'award' at all but a procedural step which had to be viewed in conjunction with other procedural steps considered by the
arbitrator, including the application to amend BCL's plea and the application to postpone the arbitration to enable the present application to be
brought. H
(4) That BCL was correct to invoke the authority supplied by s 16(2)(f) of the Act in order to secure an interim injunction staying the arbitration
and the court has, in the present circumstances, the power to grant or refuse a stay of the arbitration without usurping or interfering with the
2002 (1) BLR p224
made impacting upon the contractual substance later agreed. The signature deception by AMCO (or Shaft Sinkers) achieved only one objective,
the tender form had actually signed the portion B tender form so that the tender would be considered. There was no false H statement of fact
in relation to the content of the tender and hence there was no misrepresentation. That being so, the court did not have to grapple with the
issue of fraudulence or innocence nor the question of materiality and whether the contract was induced by the signature deception.
(3) Any intent by AMCO to induce the contract was neither intended by
2002 (1) BLR p225
AMCO to defraud BCL nor cause it loss, not for AMCO to benefit itself. The issue was whether such 'benefit' A skewed the contractual
substance so that AMCO derived undue advantage and BCL was correspondingly either injured or intended to be injured. BCL was not so injured
or intended to be injured.
(4) In any event, the draft intendit in the proposed delictual actual was excipiable without prospect of being cured: the intendit alleged that
AMCO and Shaft Sinkers 'were under a legal duty to properly and timeously perform the B works, alternatively cause the works to be performed,
in accordance with the program . . .' and that they had failed to do so. The facts in casu could not support a delictual claim. There was no
allegation of wrongfulness and no such allegation could be inferred. Furthermore, the facts and conclusions recited in the intendit all sprang from
the contractual relationship between the parties, a breach whereof did not per se give rise to a claim in C delict. It would accordingly be an
exercise in futility for the court to stay the arbitration pending the determination of an action which was stillborn.
The dictum in Lillicrap, Wassenaar and Partners v. Pilkington Brothers SA (Pty) Ltd 1985 (1) SA 475 (A) at p 499DG applied.
Case Information
Cases referred to: D
Berkmeyer v. Woolf 1929 CPD 235

Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation [1981] 1 All ER 289 (HL)
Christopher Brown Ltd v. Genossenschaft Oesterreichischer Waldbezitzer Holzwirtscharftsbertriebe Registrierte Genossenschaft Mit
Beschrankter Haftung [1953] 2 All ER 1039 (QB) E
Da Mata v. Otto NO 1972 (3) SA 861 (A)
Herstigte Nasionale Party van SuidAfrika v. Sekretaris van Binnelandse Sake en Immigrasie 1979 (4) SA 274 (T)
Lillicrap, Wassenaar and Partners v. Pilkington Brothers SA (Pty) Ltd 1985 (1) SA 475 (A)
Lynes v. International Trade Developer Inc 1922 NPD 301 F
2002 (1) BLR p224
made impacting upon the contractual substance later agreed. The signature deception by AMCO (or Shaft Sinkers) achieved only one objective,
the tender form had actually signed the portion B tender form so that the tender would be considered. There was no false H statement of fact
in relation to the content of the tender and hence there was no misrepresentation. That being so, the court did not have to grapple with the
issue of fraudulence or innocence nor the question of materiality and whether the contract was induced by the signature deception.
2002 (1) BLR p225
Case Information

APPLICATION for an staying an arbitration. The facts appear from the judgment of Collins AJ.
CW Jordaan SC (with him J H Engelbrecht and L Mphuchane) for the applicant. G

Judgment
Collins AJ:
This is an application to secure a stay of certain arbitration proceedings being conducted before the first H respondent in which the applicant
and the second respondent are the contestants. I shall henceforth refer to the applicant as 'BCL', the first respondent as 'the arbitrator' and
second respondent as 'AMCO'. The stay sought is temporary pending the outcome of an action which BCL intends to institute against AMCO and
a South African company, Shaft Sinkers International (Pty) Ltd (hereinafter called either 'Shaft
2002 (1) BLR p226
COLLINS AJ
Sinkers' or 'SSI'). The arbitration proceedings are being conducted pursuant to a written arbitration agreement A dated 17 November 2000
which was concluded between BCL and AMCO (annexure BCL3 to the founding affidavit) in order to resolve certain disputes between them
arising out of earlier contracts and or their termination and or certain works performed in terms thereof. It is necessary to set out the
background and origin of the disputes between the parties in order to appreciate the issues presently in dispute in this application. B
BCL is the owner and operator of a nickel mine situated at Selibe Phikwe. In 1998 it decided to extend its number 3 shaft and in August that
year it invited tenders for the works needed for such extension. The tender process required a public opening of the tenders which took place
on 4 November 1998. In January 1999 BCL advised C AMCO that the latter's tender would be accepted and two agreements were concluded: an
express agreement in respect of portion A and a tacit agreement in respect of portion B. I will say more about these agreements and their
connection during the course of this judgment. For now let me simply say that the agreements contain an arbitration clause which, when
disputes arose between the parties, was invoked resulting in the written arbitration agreement to which I have referred. Disputes arose quite
soon after AMCO commenced work on the D project in April 1999. BCL complained about the state of performance and progress by AMCO, AMCO
complained that it was entitled to time extensions owing to BCL's delays. BCL contended that AMCO never gave requisite notice for time
extension claims and so on. Anyone who has been involved in construction disputes will recognise familiar patterns and these introductory
remarks
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often met with the riposte that such accusation is in itself an act of repudiation. This is such a case. Once daggers were drawn they were
2002 (1) BLR p225
Case Information

APPLICATION for an staying an arbitration. The facts appear from the judgment of Collins AJ.
CW Jordaan SC (with him J H Engelbrecht and L Mphuchane) for the applicant. G

Judgment
Collins AJ:
This is an application to secure a stay of certain arbitration proceedings being conducted before the first H respondent in which the applicant
and the second respondent are the contestants. I shall henceforth refer to the applicant as 'BCL', the first respondent as 'the arbitrator' and
second respondent as 'AMCO'. The stay sought is temporary pending the outcome of an action which BCL intends to institute against AMCO and
2002 (1) BLR p226
COLLINS AJ
remarks are not intended to delineate the disputes, merely to E get a feel for the buildupto the ultimate accusation of repudiation, which is
never returned to their scabbards. Each party contended for the other's repudiation and their entitlement to rely on same and cancel the
agreements. Eventually the arbitration agreement was concluded, pleadings were F exchanged and evidence was led. From the papers before
me it is clear that the arbitration is a prolix affair. The pleadings run to many hundreds of pages and, by the time this application was launched,
proceedings had been in progress for 30 hearing days reflected in a record running to some 3 600 pages.
Towards the end of August 2001 evidence emerged in the arbitration indicating to BCL that AMCO, represented G by its agent Shaft Sinkers,
had been guilty of what it describes as a 'material fraudulent misrepresentation' during the tender process which induced BCL to enter into the
agreements with AMCO. As a result of this discovery it elected to avoid the said agreements ab initio and evinced an intention to institute an
action out of this court, based in delicit, against both AMCO and Shaft Sinkers for damages consequent upon the latters' H alleged unlawful
actions. Given BCL's election to avoid the agreements and its intention to institute action as aforesaid (and AMCO denies BCL has any legal
causation to do so) the issue of where the pending arbitration now stood required BCL to address same. It did so by applying formally to the
arbitrator, on 3 October 2001, for an order to stay those proceedings pending the outcome of its intended
2002 (1) BLR p227
COLLINS AJ
action to which I have referred. Although the arbitrator concluded in his award that his jurisdiction was limited to A disputes which were subject
to arbitration in terms of the arbitration agreement of 17 October 2000 (and accordingly that the dispute relating to BCL's allegation of AMCO's
misrepresentation was not so subject), he nevertheless refused to grant a stay for reasons set out at pp 95 and 96 of the record preferring
instead to direct BCL to this court for such a decision, if it was so minded. BCL was so minded, obtained a postponement of the B arbitration for
the express purpose of bringing this application and did so. Accordingly, and pending delivery of this judgment, the arbitration proceedings
remain postponed not stayed and I shall now consider the issues.
This application is specifically brought in terms of s 16(2)(f) of the Arbitration Act (Cap 06:01) ('the Act'), which provides that: C
'16. Any party to a submission is entitled, subject to the law relating to procedure of the court, to obtain from the court an order
(a) (e) . . .
(f) for an interim injunction or similar relief.'
AMCO, through its counsel, raised two points in limine when the matter was argued. The first is that s 16(2)(f) of D the Act does not apply to
the relief sought by BCL in this application based on the facts set out in the founding affidavit. Secondly, as the arbitrator has already made an
award refusing a stay of the arbitration proceedings, this court is being asked in effect to set aside the arbitrator's award which the court has
no power to order E unless BCL invokes s 13(2) of the Act which provides for the setting aside of an award if the arbitrator has 'misconducted
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submissions by counsel I dismissed both points in limine with costs (such costs to include the costs of two counsel) with reasons to follow,
2002 (1) BLR p226
COLLINS AJ
remarks are not intended to delineate the disputes, merely to E get a feel for the buildupto the ultimate accusation of repudiation, which is
never returned to their scabbards. Each party contended for the other's repudiation and their entitlement to rely on same and cancel the
agreements. Eventually the arbitration agreement was concluded, pleadings were F exchanged and evidence was led. From the papers before
me it is clear that the arbitration is a prolix affair. The pleadings run to many hundreds of pages and, by the time this application was launched,
proceedings had been in progress for 30 hearing days reflected in a record running to some 3 600 pages.
Towards the end of August 2001 evidence emerged in the arbitration indicating to BCL that AMCO, represented G by its agent Shaft Sinkers,
had been guilty of what it describes as a 'material fraudulent misrepresentation' during the tender process which induced BCL to enter into the
agreements with AMCO. As a result of this discovery it elected to avoid the said agreements ab initio and evinced an intention to institute an
action out of this court, based in delicit, against both AMCO and Shaft Sinkers for damages consequent upon the latters' H alleged unlawful
actions. Given BCL's election to avoid the agreements and its intention to institute action as aforesaid (and AMCO denies BCL has any legal
causation to do so) the issue of where the pending arbitration now stood required BCL to address same. It did so by applying formally to the
2002 (1) BLR p227
COLLINS AJ
(a) (e) . . .
the proceedings' or where 'an arbitration award has been improperly procured', neither of which is contended for by BCL. After hearing detailed
which I now give. F
In regard to the first point AMCO contends that this court's jurisdiction to supervise the conduct of a private consensual arbitration by granting
an injunction in terms of s 16(2)(f) of the Act is strictly confined to the 'enforcement or protection of some legal or equitable right'. (Bremer
Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation [1981] 1 All ER 289 (HL) at p296 i). In other words, the court has no
inherent G jurisdiction over the conduct of a private arbitration in the same way that it does have inherent powers in respect of litigation before
it and is confined solely to the statutory powers contained in the enabling legislation ('the Act'), which alone regulates the arbitration. This,
very broadly speaking, is as I understand the gravamen of the majority judgment of Lord Diplock in the Bremer Vulkan case supra. Applying this
statement of the law (and s 12(6)(h) of the UK Arbitration Act, 1950, contains a similar provision to our s 16(2)(f) authorising a court to grant
H an interim injunction), Mr Gautschi, who appeared for AMCO, argues that this court cannot usurp the exclusive powers of the arbitrator and
set aside or overrule awards already made by him as BCL now seeks to do except on very limited grounds which he alludes to in support of his
second point in limine,
2002 (1) BLR p228
COLLINS AJ
which I will investigate jointly with the first. Although the two points have been isolated in argument they seem to A me to overlap to such an
extent that they hang together as one which I hope to demonstrate. AMCO argues that BCL's reliance on s 16(2)(f) is per se misconceived
because any injunction which this court is invited to grant must amount to an unwarranted interference with the arbitrator's award refusing the
stay. Clearly, the lawmaker intended s 16(2)(f) to have meaning, ie that it envisaged circumstances when a court could and B should grant an
interim injunction in respect of a private consensual arbitration without the court being invited to apply s 13(2) and without the court exercising
any inherent or general supervisory power. I asked Mr Gautschi what, theoretically, those circumstances might be and his best, I think only,
answer was circumstances where the arbitrator's terms of reference precluded him from making an award in respect of some tangential matter
not C contained in or envisaged by the terms of reference but which, if not addressed by the court by way of injunction, could deleteriously
affect the rights of one of the parties to the arbitration assuming an award might be made in that party's favour. Usually this would mean
protecting an asset (the subject of arbitration) from alienation or dilution pending the outcome of the arbitration and counsel could not take it
much further than that. D
Before considering BCL's response to these arguments AMCO had one further argument to support its view that BCL's reliance on s 16(2)(f) was
misconceived and that is that its rule nisi was formulated in such a way as to claim a final interdict rather than an 'interim injunction' which s
16(2)(f) (assuming it to be applicable) authorises. I do not think this argument has merit. The rule nisi sought by BCL claimed an interim or
temporary interdict (at E para 3 thereof) pending the outcome of the application for a final interdict staying the arbitration until finalisation of
the intended action. AMCO's complaint, if I understand it, is that while temporary relief is in harmony with s 16(2)(f) the main relief sought,
being final, is not. In other words BCL can go no further than to seek a temporary F or interim injunction without violating the section upon
which it relies. With respect to learned counsel that does not make sense to me. The word 'interim' carries no magic. It means 'in the meantime'
and that translates as 'between now and a certain further event'. All interim court orders necessarily suspend activity by a respondent pending
some final outcome. If it were otherwise we would be in the land of Lewis Carroll where 'temporary' G meant 'final' and 'in the meantime' meant
'there is sometimes no end to the meantime,' I have no difficulty in rejecting this notion and holding that s 16(2)(f) must mean 'interim injunction
pending final relief'. I would say that, even if this interpretation is wrong assistance is to be found in the full wording of ss (f) which speaks of
'an interim injunction or similar relief'. Interpreting the last two words, eiusdem generis, I do not think I would have much hesitation in finding
'final'
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Turning to BCL's arguments on the first point in limine, Mr Jordaan, who appeared for BCL, stresses that this application is not about setting
2002 (1) BLR p227
COLLINS AJ
(a) (e) . . .
the proceedings' or where 'an arbitration award has been improperly procured', neither of which is contended for by BCL. After hearing detailed
which I now give. F
In regard to the first point AMCO contends that this court's jurisdiction to supervise the conduct of a private consensual arbitration by granting
an injunction in terms of s 16(2)(f) of the Act is strictly confined to the 'enforcement or protection of some legal or equitable right'. (Bremer
Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation [1981] 1 All ER 289 (HL) at p296 i). In other words, the court has no
inherent G jurisdiction over the conduct of a private arbitration in the same way that it does have inherent powers in respect of litigation before
it and is confined solely to the statutory powers contained in the enabling legislation ('the Act'), which alone regulates the arbitration. This,
very broadly speaking, is as I understand the gravamen of the majority judgment of Lord Diplock in the Bremer Vulkan case supra. Applying this
statement of the law (and s 12(6)(h) of the UK Arbitration Act, 1950, contains a similar provision to our s 16(2)(f) authorising a court to grant
H an interim injunction), Mr Gautschi, who appeared for AMCO, argues that this court cannot usurp the exclusive powers of the arbitrator and
set aside or overrule awards already made by him as BCL now seeks to do except on very limited grounds which he alludes to in support of his
2002 (1) BLR p228
COLLINS AJ
'final' relief competent although the point was not argued to me. H
aside the arbitrator's award refusing the stay, although, naturally, if the stay were to be granted it would have that effect. The application for a
stay (before the arbitrator) was concluded on 8 October 2001 and a written ruling refusing
2002 (1) BLR p229
COLLINS AJ
same was pronounced shortly thereafter (the exact date is unclear). This is annexure BCL6 to the founding A affidavit. Although the heading of
this document refers to it as an 'award' and 'Reasons for the award', the first point taken by BCL is that, upon a proper construction, it is not an
'award' at all as that word is frequently referred to in the Act (and the Schedule to the Act) and, specifically, it is not an 'interim award' within
the meaning of s 18 of the Act, which provides as follows: B
'Unless a contrary intention is expressed therein, every submission shall, where such a provision is applicable to the reference, be deemed to contain a
provision that the arbitrator or umpire may, if he thinks fit, make an interim award, and any reference in this Part of this Act to an award includes a reference to
an interim award.' C
Now a 'submission' (where that word is referred to in s 18 above) is defined in s 2 of the Act as follows:
'Submission' means a written agreement, wherever made, to submit present or future differences to arbitration whether an arbitrator is named therein or not.'
D
Accordingly, 'submission' in casu means nothing more nor less than the arbitration agreement to which I referred at the outset and the issues
submitted to arbitration are those found at para 2 of that agreement, which reads as follows: E
'2.1 Amco and BCL agree that all disputes between them and arising out of the contracts and/or their termination and/or the works performed at the BCL Mine in
Selibe Phikwe ("the disputes") be resolved in one arbitration process ("the arbitration").
2.2 The arbitration will be governed by the provisions of this arbitration agreement and the disputes will be fully F particularised by way of the exchange of
pleadings as more fully described in Section E below.'
The issues between the parties are therefore '. . . all disputes between them and arising out of the contracts and/or their termination and/or
the works performed . . .' and, so the argument proceeds, application to the arbitrator to stay is not an issue submitted to arbitration upon
which the arbitrator is competent to make an G interim award. The application is procedural in nature and the arbitrator's ruling thereupon
cannot be construed as an 'interim award' as envisaged by s 18 of the Act. There is considerable force in this argument and insofar as the
arbitrator's own understanding of the effect of his ruling may be relevant he appears to have specifically recognised that the ruling was not
intended to preclude BCL from applying to this court for a stay notwithstanding H his own refusal of same. At para 21 of his ruling, he says:
© 2018 Juta 'In
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whether or
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2002 (1) BLR p228
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'final' relief competent although the point was not argued to me. H
aside the arbitrator's award refusing the stay, although, naturally, if the stay were to be granted it would have that effect. The application for a
2002 (1) BLR p229
COLLINS AJ
D
'In my view, if BCL wants a stay of these proceedings it can apply to the High Court of Botswana for a stay and there can then be no question as to whether or
2002 (1) BLR p230
COLLINS AJ
concerned. The position, therefore, is that the stay of the proceedings is refused and the arbitration hearing in this forum will proceed.' A
The arbitrator, earlier in his ruling at para 19; expressly (although with hesitation) considered that he did not have jurisdiction in respect of BCL's
new cause of action in delict and says the following:
'I have come to the conclusion although not without some hesitation that my jurisdiction is limited to disputes that arose B between the parties before 17
November 2000. I am also of the view that I have no authority to extend the scope of my jurisdiction by making use of the rules referred to in the arbitration
agreement which allows for pleadings to be amended. I accept that those rules are applicable, but, in my view, they cannot be used to introduce disputes which
were not subject C to arbitration in terms of the agreement as at 17 October 2000.
In the result I have, therefore, somewhat reluctantly come to the conclusion that, having regard to my jurisdiction, the question as to the dispute between the
parties relating to the relief sought in respect of the alleged misrepresentation does not fall within my jurisdiction.' D
He then went on to refuse the application for a stay of the arbitration in respect of the issues with which he was seized in terms of the
submission and over which, it is common cause, he did have jurisdiction. The problem that arose for the arbitrator is that BCL, upon discovering
what it considered was a material fraudulent misrepresentation on AMCO's part (and its agent Shaft Sinkers), made an application to the
arbitrator for leave to amend its plea in order to resile from its original admission that there was due compliance by AMCO in the E tender
process (because it knew no better) and allege instead that there was no such compliance (because it now knew better) and therefore allege a
fraudulent misrepresentation inducing the subsequent agreements upon which it wished to rely in order to avoid them (and in consequence the
arbitration agreement which those F agreements spawned). The arbitrator acceded to this application for leave to amend BCL's plea on 29
August 2001 (the South African Rules of Court governed the ratio decidendi for allowing the amendment) and this is where the collision has its
pivot. I am aware that BCL had not formally amended its plea by the time the arbitrator heard the stay application (8 October 2001) in terms of
leave granted to it earlier to do so but I do not think G anything turns on this. Of course, for it to do so now would be an exercise in futility
given that the arbitrator has ruled that he has no jurisdiction in respect of the dispute which is the subject of the amendment. The arbitrator
had before him (following his allowance of leave to amend) an issue over which he, on the basis of his own subsequent ruling (in relation to the
stay application), had no jurisdiction. The question that arises is how he H might have granted leave to amend if he knew that the subject
matter of the amendment was, before him, unjusticiable. I propose to assume in his favour that the issue was not 'alive' when the amendment
was sought and became so only when the stay was sought. That, I think, explains remarks by him during the course of his ruling on the stay
application of a somewhat equivocal nature
2002 (1) BLR p231

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D
'In my view, if BCL wants a stay of these proceedings it can apply to the High Court of Botswana for a stay and there can then be no question as to whether or
2002 (1) BLR p230
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2002 (1) BLR p231
COLLINS AJ
generally and a wistful nature specifically that this court should or might be looked to in order to resolve the A impasse. That is the way I
understand the arbitrator's remark (when BCL asked for a postponement to bring this application after the stay was refused) when he said:
'Yes, the position as far as I am concerned, I had this doubt about the question of my jurisdiction in the light of that. If you B proceed in the High Court of
Botswana, Amco can state their case and you can state yours and I will have peace of mind as far as the jurisdiction is concerned.'
Although BCL says (correctly in my opinion) that it does not rely for the relief it claims in this court on the arbitrator's own views of his
jurisdiction, I nevertheless think that those views go a long way to explaining the very problem which has arisen and which must be resolved. C
I agree with BCL's argument that its application to stay the arbitration before this court is not to set aside the arbitrator's 'award' to the
contrary. I hold that it was not an 'award' at all but a procedural step which must be viewed in conjunction with other procedural steps which
were considered by the arbitrator; including the D application to amend BCL's plea and the application to postpone the arbitration for a short
period to enable this application to be made. The arbitrator, in refusing BCL a stay, must have been aware that one of the results of his ruling
was that the parties would now become engaged on two fronts at once, viz the arbitration and BCL's intended action. If the arbitrator had
refused the stay on one or more of the substantive bases that have been argued by AMCO before me, for example that BCL's intended action is
so thoroughly excipiable that it is doomed E to failure, then the intervention of this court may have been more problematic. However, the
arbitrator appears to have weighed issues of convenience in coming to his conclusion, such as the prolixity and the duration of the arbitration
and various factors regarding the vagueness of BCL's intended action (para 20 of his ruling). It is on that basis that he came to his conclusion,
ie that it would be wasteful and inconvenient if the arbitration were to F be halted. This fortifies me in the view I have already expressed that
his ruling is not an 'award' and consequently this court is not being asked to set it aside.
In any event Russell on Arbitration (21st ed) at p277, under the heading of 'Substantive Requirements of Award' states: G
'To be valid an award must comprise a decision by the tribunal on the matters referred with which it deals. An award must also be final, in the sense of being a
complete decision without leaving matters to be dealt with subsequently or by a third party, and it must be certain.'
And then (at p280) the learned authors, relying on various English authorities, summarise what is meant by a H 'complete decision' as follows:
'An award must be final in the sense that in relation to the issues or claims with which it deals, it is a complete decision on the matters requiring determination.
A tribunal cannot reserve to itself, or delegate to another, the power of performing in future any act of a judicial nature in
2002 (1) BLR p232

COLLINS AJ
relation to matters dealt with in the award, and it is a breach of that duty to leave any part of the decision to be determined subsequently or by another.' A
The manner in which the arbitrator expressed himself ('I had this doubt about the question of my jurisdiction . . .') seems to me to point to
incompleteness and, accordingly, one of the requirements for a valid award is absent. B
2002 (1) BLR p230
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2002 (1) BLR p231
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2002 (1) BLR p232

COLLINS AJ
Having reached this conclusion, I am of the view that BCL was correct to invoke the authority supplied by s 16(2)(f) of the Act in order to
secure an interim injunction staying the arbitration and that this court has, in the circumstances I have I traversed, the power to grant or
refuse a stay of the arbitration without usurping or interfering with the arbitrator's authority. I would go further and suggest that the
circumstances in this case are C such that if BCL were not able to rely on s 16(2)(f) it is almost impossible to conceive of circumstances where
the said section might ever have application outside the limited circumstances provided by s 13(2) and the tangential illustration I referred to
earlier. It must not be forgotten that BCL's primary purpose in seeking the stay is in order to ventilate a dispute between the parties in another
forum because the arbitrator is not clothed with D jurisdiction to hear it. Furthermore, that the outcome of that dispute may result in the
arbitration itself becoming a redundant exercise and, hence, its continuation will be futile and vexatious. That issue will be considered fully later
but for the purposes of dealing with the point in limine the question (seen from BCL's perspective) is whether continuation of the arbitration
might infringe some legal or equitable right such that this court has power E to grant an interim injunction in order to prevent it. That is the
principle restated by Bremer Vulkan (supra) and commenting upon it Lord Fraser (one of the dissenting Lords in the case) says:
'I fully accept that principle as applying in the present case and I will return to it. Before doing so I wish to mention a F decision which, if it is good law in
England, demonstrates that misconduct and impeachment are not the only grounds for an injunction. It is a decision of this House in Glasgow and SouthWestern
Railway Co v. Boyd and Forrest 1918 SC (HL) 14, where the House upheld the grant of an interdict against proceeding with an arbitration on matters which, as
they held, were res judicata. The appeal came from Scotland, and there was no argument on the question of jurisdiction to grant an G interdict, but it seems
unlikely that the English Law Lords who were present, Lord Finlay LC, Lord Parmoor and Lord Atkinson, would not have raised a question if they had entertained
any doubt about the jurisdiction of the English court in similar circumstances. I think therefore that the case may be regarded as giving some support to the view
that the English courts have jurisdiction to grant injunctions to protect the right of a party not to be harrassed by an arbitration that would in H the end be futile.'
(Emphasis added.)
Prima facie at least, BCL has made out a case that refusal of a stay of the
2002 (1) BLR p233
COLLINS AJ
arbitration might subject it to harassment if that arbitration turned out to be futile and hence it requires the A injunction to protect or assert
that legal or equitable right.
Although
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(that this court may not interfere with or setaside the arbitrator's award) meshes with the first point (that BCL is nonsuited to invoke s 16(2)
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2002 (1) BLR p232

COLLINS AJ
(Emphasis added.)
2002 (1) BLR p233
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Although I said earlier that the two points in limine were really one and the same, that is not quite correct. The first part of the second point
(f) of the Act) but there is an additional element to the B second point argued by AMCO, viz that BCL has not satisfied the general
requirements for either an interim or final interdict. These requirements are, respectively, summarised in Joubert (ed) Law of South Africa vol II
frequently adopted in our courts as follows: C
'The requisites for the right to claim an interim interdict are:
(a) a prima facie right;
(b) a wellgrounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;
(c) that the balance of convenience favours the granting of an interim interdict; and D
(d) that the applicant has no other satisfactory remedy.
In view of the discretionary nature of an interim interdict these requisites are not judged in isolation and they interact.'
and:
'The requisite for the right to claim a final interdict are: E
(a) a clear right;
(b) an injury actually committed or reasonably apprehended; and
(c) the absence of similar protection by any other ordinary remedy.
Irreparable injury, though relevant in the context of interim interdicts, is not a condition precedent to or a requirement for the grant of a final interdict.'
(Emphasis added) G
Having already come to a conclusion that the arbitrator's ruling does not amount to an 'award'; most of the arguments addressed to me by Mr
Gautschi, which presupposed that BCL's application amounted to a quasiappeal or review of an arbitral award, have been rendered irrelevant. I
do, however, agree with him that, although these proceedings were launched by way of a rule nisi claiming an interim interdict, the reality is
that the matter now before the court enjoins the latter to determine the application in a final manner, ie to grant or refuse a final interdict. The
requirements for the latter are, of course, more stringent but I do not think BCL can be criticised for adopting the procedure which it did. It was
not to know with certainty how AMCO would respond. Suffice it to say that I am satisfied that, even on the more stringent test, BCL has
satisfied the requirements. The H clear right is to be found in the arbitrator's refusal to stay, his apprehension about his jurisdiction and the
possible harassment that BCL would be forced to endure if the arbitration proceeded (without deciding that issue for now). The injury which BCL
apprehends, and which I think is reasonable, is the futility of the arbitration proceeding with attendant wasteful
2002 (1) BLR p234
2002 (1) BLR p232

COLLINS AJ
(Emphasis added.)
2002 (1) BLR p233
COLLINS AJ
and:
(a) a clear right;
(Emphasis added) G
2002 (1) BLR p234
COLLINS AJ
costs in the event that the intended action succeeds and renders the arbitration redundant ab initio. Finally, I am A satisfied that only the
protection of this court by way of interdict could safeguard BCL's interests. AMCO has made an offer to BCL that the delictual claim be dealt
with by the arbitrator by increasing the latter's jurisdiction to include that dispute and therefore an alternative remedy to these proceedings
exists. BCL has met that argument (and rejected that offer) for reasons which it considers sound because the offer does not address its B
concerns. I do not think I need to go into the debate at this juncture because I take the view that an offer of an alternative remedy is not the
same as the independent existence of a legal remedy of which BCL should avail itself and thus fail to meet the necessary requirement.
For all the above reasons I dismissed the points in limine and I now turn to the application proper. C
As I mentioned earlier, evidence emerged during the arbitration which BCL contends shows the perpetration of a fraud by AMCO, represented by
Shaft Sinkers, which induced the contracts and which in turn formed the basis for the arbitration. In consequence of the discovery BCL has
elected to avoid the agreements with AMCO and intends to institute a delictual action. The alleged fraud goes back to the very beginning and
precedes the D contracts subsequently entered into. I will try and trace the issue as briefly as possible but, regrettably, it does have a rather
convoluted history so it will not be that brief. Contracts of the sort which the parties entered into are frequently financed by international
funding institutions and agencies backed up by reciprocal interState political arrangements. The contracts entered into in this case were to be
financed by the European Development Fund E ('the EDF') and, for that reason and quite naturally, the EDF (as a quid pro quo for agreeing to
provide the finance) insists on adherence to certain basic general regulations of their own ('the EDF regulations') and without which they will
not come to the party.
Article 7.1 of these regulations requires that works and supply contracts to be financed by the EDF shall be F concluded following an open
invitation to tender and in August 1998 BCL invited tenders for the works. The EDF had made available P15 million but it was known that the
total cost of the works would exceed P100 million. Accordingly, the tender invitation was divided into two portions, viz portion A and portion B,
in order to identify the portion of the work (portion A) which would be funded by the EDF (at least initially). The reason for making the G
distinction was that different conditions of contract were to be applied to the two portions although (it is common cause) the two portions
would be awarded as a single contract. Portion A comprised the infrastructural work at the 880 level of the mine and portion B comprised the
sinking of a three shaft decline system commencing from the 880 level. The tender documentation included the EDF regulations, which were to
govern,
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The EDF regulations are set out in full in a document annexed to BCL's founding affidavit as annexure 'BCL7'. It is a comprehensive document
2002 (1) BLR p233
COLLINS AJ
and:
(a) a clear right;
(Emphasis added) G
2002 (1) BLR p234
COLLINS AJ
govern, inter alia, the H eligibility of interested tenderers.
and I will refer only to those parts of it which are relevant to this application; relevant in the sense that they establish the background to BCL's
allegation
2002 (1) BLR p235
COLLINS AJ
of a material fraudulent misrepresentation on the part of AMCO and Shaft Sinkers. A
The relevant portions are the following:

'Article 4.1:
(a) participation in the invitations to tender and in award of contracts financed by the EDF shall be open on equal terms to: B
(i) . . . companies . . . of the ACP States and the EBC;
(ii) cooperative societies and other legal persons governed by public or private law, save for those which are nonprofit making, of the EBC and/or of the
ACP States; C
(iii) joint ventures or groupings of the ACP and/or EBC companies or firms.
(b) supplies must originate in the EBC and/or the ACP States. The concept of origin for the purpose of implementing this article will be assessed by reference to
the relevant international agreements.'
[A list of EBC and ACP States is annexed to the founding affidavit as annexure 'BCL8'. The only relevant D observation is that the Republic of
South Africa, where Shaft Sinkers is domiciled, is not one of the listed States.]
Article 4.2:
'Natural persons, companies or firms shall not be eligible for the award of contracts where . . . E
(e) they are guilty of serious misrepresentation with regard to information required for participation in an invitation to tender.'
Article 5:
'The ACP States and the Commission (the Commission of the European Communities) shall take the necessary measures to ensure the widest possible
participation
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(a) ensure publication of invitations to tender in the Official Journal of the EBC, the Official Journals of the ACP States and any other appropriate information
media; G
2002 (1) BLR p234
COLLINS AJ
govern, inter alia, the H eligibility of interested tenderers.
and I will refer only to those parts of it which are relevant to this application; relevant in the sense that they establish the background to BCL's
allegation
2002 (1) BLR p235
COLLINS AJ
of a material fraudulent misrepresentation on the part of AMCO and Shaft Sinkers. A
The relevant portions are the following:

'Article 4.1:
(a) participation in the invitations to tender and in award of contracts financed by the EDF shall be open on equal terms to: B
(i) . . . companies . . . of the ACP States and the EBC;
(ii) cooperative societies and other legal persons governed by public or private law, save for those which are nonprofit making, of the EBC and/or of the
ACP States; C
(iii) joint ventures or groupings of the ACP and/or EBC companies or firms.
(b) supplies must originate in the EBC and/or the ACP States. The concept of origin for the purpose of implementing this article will be assessed by reference to
the relevant international agreements.'
[A list of EBC and ACP States is annexed to the founding affidavit as annexure 'BCL8'. The only relevant D observation is that the Republic of
South Africa, where Shaft Sinkers is domiciled, is not one of the listed States.]
Article 4.2:
'Natural persons, companies or firms shall not be eligible for the award of contracts where . . . E
(e) they are guilty of serious misrepresentation with regard to information required for participation in an invitation to tender.'
Article 5:
'The ACP States and the Commission (the Commission of the European Communities) shall take the necessary measures to ensure the widest possible
participation on equal terms in invitations to tender for Works, Supply and Service contracts, F including, as appropriate, measures to:
(a) ensure publication of invitations to tender in the Official Journal of the EBC, the Official Journals of the ACP States and any other appropriate information
media; G
(b) eliminate discriminatory practices or technical specifications which might stand in the way of widespread participation on equal terms; . . .
(d) ensure that all the selection criteria are specified in the tender dossier; and H
(e) ensure that the tender selected conforms to the requirements of the tender dossier and meets the selection criteria stated therein.'
'A Contracting Authority wishing to award a contract by open tendering procedure . . . shall make known its intention by means of a notice published by the
Commission in the Official Journal of the EBC
2002 (1) BLR p236
COLLINS AJ
and in all the Official Journals of the ACP States and any other appropriate information media.' A
Article 13.4
'In an open tendering procedure, the notice of communication to tender shall state: . . .
(e) the method of tendering, the place where the tender dossier may be inspected and the terms on which it may be B acquired;
...
(g) the final date and time fixed for a seal of tenders, the address to which they must be sent, the number of copies required and the language in which they
must be drawn up; C
. . . .'
Article 16.1
'The invitation to tender dossier shall contain details of the way in which tenders are to be presented and the criteria for selection of the successful tender. In
addition to the invitation to tender, the tender dossier may contain any or all of the D following:
(a) the instructions to tenderers;
...
(d) the technical specifications and/or terms of reference;
...
(h) the tender form; E
. . . .'
Article 20.1
'The tender to be prepared and submitted by the tenderer shall, in accordance with the requirements stated in the tender dossier, comprise:
(a) the completed tender form and appendix thereto; . . . .' F
Article 29.1
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Article 29.2
Commission in the Official Journal of the EBC
2002 (1) BLR p236
COLLINS AJ
and in all the Official Journals of the ACP States and any other appropriate information media.' A
Article 13.4
'In an open tendering procedure, the notice of communication to tender shall state: . . .
(e) the method of tendering, the place where the tender dossier may be inspected and the terms on which it may be B acquired;
...
(g) the final date and time fixed for a seal of tenders, the address to which they must be sent, the number of copies required and the language in which they
must be drawn up; C
. . . .'
Article 16.1
'The invitation to tender dossier shall contain details of the way in which tenders are to be presented and the criteria for selection of the successful tender. In
addition to the invitation to tender, the tender dossier may contain any or all of the D following:
(a) the instructions to tenderers;
...
(d) the technical specifications and/or terms of reference;
...
(h) the tender form; E
. . . .'
Article 20.1
'The tender to be prepared and submitted by the tenderer shall, in accordance with the requirements stated in the tender dossier, comprise:
(a) the completed tender form and appendix thereto; . . . .' F
Article 29.1
'The tender shall be signed by the tenderer or by his duly authorised agent as required by the instructions to tenderers. . . .' G
Article 29.2
'A tender submitted by an agent must state the name of the principal on whose behalf he is acting. No agent may represent more than one tenderer. Agents
shall attach to the tender the simple contract or notarial act or deed which empowers them to act on behalf of tenderers. A signature to a deed must be certified
in accordance with the national law of the State of the principal.' H
Article 29.5:
'The complete tender shall be without alterations, interlineations or erasures, except those to accord with instructions issued by the
2002 (1) BLR p237
COLLINS AJ
Contracting Authority, or necessary to correct errors made by the tenderer. Alterations and corrections shall be initiated by the person or persons signing the
tender.' A
Article 33.1:
'On receipt of the tenders, the envelopes shall be entered in a special register in the order in which they arrive. The B registration number and the date and
time of arrival shall be recorded on the envelope. Envelopes remain sealed and be kept in a safe place until they are opened under the conditions set out in
article 33.2 and 33.3.'
Article 33.2: C
'At a public tender opening, the tenders' names, the tender prices, written notifications of tender modifications and withdrawals, the presence of the requisite
tender guarantee, and such other details as the Contracting Authority may consider appropriate shall, if any, be announced. In the case of a "twoenvelope"
system as mentioned in article 31.2 the announcement shall include the fact that no price envelope has been opened.' D
Article 33.3:
'Opening and examination of tenders shall comply with the rules of the ACP States concerned and with the Convention, E and shall be for the purpose of
checking whether the tenders are complete, whether the requisite tender guarantee has been furnished, whether the documents have been properly signed and
whether the tenders are generally in order.'
Article 34.2
'Prior to the detailed evaluation of tenders, the Contracting Authority shall determine whether each tender is substantially F responsive to the requirements of
the tender dossier.
Article 34.3
'For the purpose of article 34, a responsive tender is one which conforms to all the terms, conditions and specifications of G the tender dossier without material
deviation or reservation. A material deviation or reservation is one which affects the scope, quality of performance of the contract, or which, if any substantial
way, is inconsistent with the tender dossier or limits the Contracting Authority's rights or the tenderer's obligations under the contract and affects unfairly the
competitive position of tenderer's presenting responsiveness.' H
Article 34.4:
'If a tender is not responsive to the tender dossier, it shall be rejected by the Contracting Authority, and may not subsequently be made responsive by
correction or withdrawal of the deviation or reservation.'
2002 (1) BLR p238

COLLINS AJ
Also of relevance are the actual tender forms for portions A and B (part of the tender documentation) which A require the signature of the
tenderer and where (immediately above the signature line) the tenderer states:
'Annexed to this tender are: . . . 5. (where the tender is submitted by an authorised representative). The certified document or private deed with certified
signature delegating the power of representation.' B
On 4 November 1998 AMCO, represented by Shaft Sinkers, delivered its tender to BCL. The tender included the tender forms for portions A and
B to which I have just referred and which were signed or purported to be signed by a Mr Schmill who, it is common cause, was the only person
authorised by AMCO to sign the tender submission. In fact Schmill only signed the tender form in respect of portion A and was not even aware
of the C existence of a tender form in respect of portion B. The tender forms, and indeed the tender documentation generally, were completed
by Shaft Sinkers. The latter, who were charged with the responsibility as AMCO's agent to prepare the tender documents, realised late on the
evening of 3 November 1998 that there was only one signature page for the two forms of tender and decided to make a photocopy of the
signature page of the tender D form for portion A and then inserted this as the signature page in the tender form for portion B. When AMCO's
tender was opened and considered by BCL the latter did not notice this discrepancy and AMCO was in due course awarded the contract.
When the pleadings in the arbitration were filed BCL (as the defendant) took no issue in regard to the validity of E AMCO's tender in its plea as
it was unaware of anything untoward and instead admitted that AMCO had submitted a valid tender in respect of portion B thereof. Upon
discovery of what I shall neutrally call the 'signature issue' for now, BCL made an application to the arbitrator for leave to amend its plea, the
effect of which was to seek to withdraw the admission of validity of the tender and to plead instead that the tender in respect of portion F B
was invalid as AMCO never completed or submitted a tender form in respect of portion B; in particular, the purported completion of the tender
form by means of the aforesaid photocopying was a fundamental violation of the EDF regulations which governed the tender process. The
application for leave to amend was opposed but the arbitrator ruled in BCL's favour, having satisfied himself that the latter's wish to withdraw
the original G admission had been satisfactorily explained. On 7 September 2001 the arbitrator gave reasons for his decision (annexure BCL 12 to
the founding affidavit) and it will be helpful if I repeat those reasons. I do so not for the purposes of agreeing, disagreeing or even considering
them but in order to succinctly record the facts in issue in respect of the amendment application without having to outline them with reference
to the
© 2018 Jutacompeting
and Companyaffidavits
(Pty) Ltd. in H that application. The reference to a 'Mr. McCafferty'
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deponent of the affidavit supporting the amendment application who is BCL's instructing attorney in the arbitration. The arbitrator says the
'The complete tender shall be without alterations, interlineations or erasures, except those to accord with instructions issued by the
2002 (1) BLR p237
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Contracting Authority, or necessary to correct errors made by the tenderer. Alterations and corrections shall be initiated by the person or persons signing the
tender.' A
Article 33.1:
'On receipt of the tenders, the envelopes shall be entered in a special register in the order in which they arrive. The B registration number and the date and
time of arrival shall be recorded on the envelope. Envelopes remain sealed and be kept in a safe place until they are opened under the conditions set out in
article 33.2 and 33.3.'
Article 33.2: C
'At a public tender opening, the tenders' names, the tender prices, written notifications of tender modifications and withdrawals, the presence of the requisite
tender guarantee, and such other details as the Contracting Authority may consider appropriate shall, if any, be announced. In the case of a "twoenvelope"
system as mentioned in article 31.2 the announcement shall include the fact that no price envelope has been opened.' D
Article 33.3:
'Opening and examination of tenders shall comply with the rules of the ACP States concerned and with the Convention, E and shall be for the purpose of
checking whether the tenders are complete, whether the requisite tender guarantee has been furnished, whether the documents have been properly signed and
whether the tenders are generally in order.'
Article 34.2
'Prior to the detailed evaluation of tenders, the Contracting Authority shall determine whether each tender is substantially F responsive to the requirements of
the tender dossier.
Article 34.3
'For the purpose of article 34, a responsive tender is one which conforms to all the terms, conditions and specifications of G the tender dossier without material
deviation or reservation. A material deviation or reservation is one which affects the scope, quality of performance of the contract, or which, if any substantial
way, is inconsistent with the tender dossier or limits the Contracting Authority's rights or the tenderer's obligations under the contract and affects unfairly the
competitive position of tenderer's presenting responsiveness.' H
Article 34.4:
'If a tender is not responsive to the tender dossier, it shall be rejected by the Contracting Authority, and may not subsequently be made responsive by
2002 (1) BLR p238

COLLINS AJ
to the competing affidavits in H that application. The reference to a 'Mr. McCafferty' in the passage which follows is a reference to the
following:
2002 (1) BLR p239
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'5. The reasons for my decision on the merits are briefly as follows: A
5.1 Mr McCafferty explained, in his affidavit, that the admission which the amendment sought to withdraw had been made because BCL had
intentionally been misled to believe that a tender form had been duly completed in respect of portion B, and that there had thus been due
compliance with BCL's Tender Invitation. B
5.2 In the light of relevant facts which are now either common cause or not in dispute on the papers before me, I have no reason to doubt the
correctness of Mr McCafferty's statement. In this regard, I refer particularly to the following facts and circumstances:
5.3.1 Tenders in respect of both portions A and B had to satisfy all the terms and conditions of the European Development Fund (EDF); C
5.3.2 Article 20.1(a) of the General Regulations, read with article 20.1(a) of the Instructions to Tenderers, stipulated that any tender submitted
shall include the completed Tender Form duly signed, and an appendix in the format set out in Annex 2 to the said Instructions.
Furthermore, where a tender was D submitted by an authorised representative, as in the present instance, the tenderer was required to
annex the "certified document or private deed with certified signature delegating the power of representation" to its tender; E
5.3.3 Mr Schmill was the only person who had been authorised by AMCO to sign its tender submission. This appears from an extract from the
minutes of an AMCO Board Meeting, held at Barugh, Barnsley, on 2 November 1998, which reads as follows: "The Board discussed the
tender submission for a shaft F contract in Botswana for Phikwe 810 Level South East Extension Project and it was resolved that: Mr O H
Schmill was authorised to sign the tender submission";
5.3.4 Mr Schmill neither signed nor completed a tender form and appendix in respect of portion B. The tender form and other documents which
Mr Schmill signed, in blank, and submitted to Mrs Boddington of Shaft G Sinkers, by telefax, on 3 November 1998, related only to AMCO's
tender in respect of portion A. With reference to these documents, Mr Schmill confirmed in his affidavit that they "were all the documents
which I had received from Shaft Sinkers"; H
5.3.5 What purported to be the signed page of the tender form in respect of portion B was, in fact, a photocopy of the page of the tender form
which Schmill had signed in respect of AMCO's tender for portion A. In this regard, Mr Schmill stated, in his affidavit, that "I was not
aware that a second copy of my signature page (annexure A4 to
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Mr McCafferty's affidavit) was included in the tender submission"; A
5.3.6
On the papers before me, the most probable explanation for the conduct described in paragraph 5.3.5 above, is that somebody at Shaft
Sinkers, involved in the compilation of AMCO's tender submission, had used the signed page of the tender form for Project A in an
endeavour to create the impression that Mr Schmill had also
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portion B. B This was clearly a misrepresentation;
2002 (1) BLR p238

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to the competing affidavits in H that application. The reference to a 'Mr. McCafferty' in the passage which follows is a reference to the
following:
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2002 (1) BLR p240
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5.3.6 On the papers before me, the most probable explanation for the conduct described in paragraph 5.3.5 above, is that somebody at Shaft
endeavour to create the impression that Mr Schmill had also indeed signed the tender form submitted on behalf of AMCO in respect of
5.3.7 However, in his affidavit Mr Schmill suggested that Shaft Sinkers had been authorised to complete the tender form in the manner
described in paragraph 5.3.6. He said, in this regard: "However, I emphasise C that the completion of tender forms for both portions A
and B and the commercial questionaire was authorised and correct. . . . I relied upon "those" at Shaft Sinkers who were responsible for
compiling the tender submission to complete the tender. Accordingly they were authorised to do so. This includes D such form or forms of
tender as may have been required, as well as the commercial questionaire";
5.3.8 I accept that Mr Schmill may have been under the bona fide impression that Shaft Sinkers had sufficient authority to complete and sign
the tender form in respect of portion B, but for the purposes of the E present inquiry, that does not avail AMCO. I repeat that on the
papers before me, Mr Schmill was the only person who had been duly authorised to sign the tender forms on behalf of AMCO.
5.3.9 In any event, even if Shaft Sinkers had been authorised to sign and complete the tender form in respect of portion B, of behalf of AMCO,
it should have been said so and should have annexed "the certified F document or private deed with signature delegating the power of
representation" on behalf of AMCO, to the tender form. There would then have been no need for some person at Shaft Sinkers to resort
to the pretence that Mr Schmill had indeed signed the tender form in question on behalf of AMCO. G
5.3.10 In conclusion, as to the reasons for my decision on the merits of the application, I refer again to the strict requirements relating to the
signing and completion of tenders in the General Regulations and the Instructions to Tenderers, and in particular to the Criteria for
Evaluation set out in annex 5 to the H Instructions.
5.3.11 In paragraph 1 of annex 5, which deals with "Preliminary Responsiveness" it is stated, inter alia that: The first phase of the evaluation
will be an assessment of preliminary responsiveness of each tender to establish
2002 (1) BLR p241
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the following: A) That the tender is complete in all respects in accordance with article 20 of section B A (General Regulations) and article 20 of
section C (Instructions to Tenderers) of the tender dossier, in particular the following are fundamental and failure of the tender to include
these in the tender will result in the tender being rejected: (i) The completed tender form duly signed and the appendix set out in B annex
2 to section C (Instructions to Tenderers) of the tender dossier. (My emphasis.)
5.3.12 In my view, it is not unlikely that, if the true facts concerning the signing and completion of the tender form for portion B had come to
light during the first phase of the tender evaluation process, that AMCO's C tender would have been rejected on account of failing to
satisfy the first test for preliminary responsiveness.'
I hasten to agree with AMCO's argument before me that the views expressed by the arbitrator in relation to the D signing and completion of the
tender
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contract were not argued before the arbitrator for the simple reason that they had not, by then, been pleaded. All the arbitrator had before him
following:
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tender form for portion B are obiter. The allegation of fraudulent misrepresentation, the materiality thereof and whether such act induced the
was an application for leave to amend BCL's plea upon the bland assertion that AMCO failed to complete and submit a tender form in E respect
of portion B (see para 3.7 of BCL's notice of amendment annexure RS6 to the answering affidavit). I did not understand Mr Jordaan to argue to
the contrary. However, the issues were fully ventilated in the affidavits in this application and I was fully addressed by counsel in respect of
same. They are, in relation to the signature issue, by and large as stated by the arbitrator in his ruling on the amendment application. At the
risk of appearing F to adopt a minimalist approach, BCL's application to stay the arbitration cannot succeed unless it can demonstrate that
AMCO's (and Shaft Sinker's) conduct in relation to the signature issue was a material G fraudulent misrepresentation inducing the contract. If I
find in favour of BCL on this issue on a preponderance of probability that will not, unfortunately, be decisive in granting the stay. AMCO has
advanced additional (or maybe alternative) reasons why the intended delictual action is doomed to failure or stillborn. I will deal with those
later. If I find against BCL on the signature issue, ie that AMCO did not perpetrate a fraudulent misrepresentation inducing the contract it follows
that its cause of action in the intended delictual action does not even arise and that I should not order a stay of the arbitration. Such a
decision would not preclude BCL from pursuing such H action in this court notwithstanding my decision, as the trial judge in that action would
not be bound by my decision. The decision I am called upon to make is whether or not to stay the arbitration and if I refuse to stay BCL remains
entitled to pursue its intended action, at whatever peril or advantage, nonetheless. I now consider the signature issue.
I have set out the relevant EDF regulations above and have traversed the
2002 (1) BLR p242
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arbitrator's assessment of BCL's complaint in respect of AMCO's alleged fatal noncompliance with those A regulations such as to invalidate the
latter's tender. I agree with the arbitrator (para 5.3.6 of his ruling) that the photocopying exercise was an endeavour to create the impression
that Mr Schmill had signed the tender form in respect of portion B and that, to that extent, it was a misrepresentation in the loosest sense of
that word. BCL's primary contention is that in order for AMCO's tender to be considered at all it needed to be what the tender B documentation
calls 'preliminary responsive'. Those precise words are not contained in the EDF regulations to which I have referred, save to the extent that
articles 34.2, 34.3 and 34.4 refer to tenders which are 'responsive'. The adjective 'preliminary' is to be found in one of the annexures (annex 5)
to section C of the tender dossier under the heading 'Criteria for evaluation'. This document sets out, in some detail, the four stages of
evaluation C of an aspiring tenderer. The stages are consecutive rather than cumulative. In other words if a tenderer does not pass stage one,
then his tender fails at that point and cannot be considered further in respect of stage two and so on. The first stage is 'preliminary
responsiveness', and for the purposes of BCL's contention in this application preliminary responsiveness means, inter alia, that AMCO must have
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tender had the latter been aware of the failure. 'Annexure 5 is undoubtedly couched in peremptory terms and BCL relies upon same in support of
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completed the Tender Form D duly signed as a fundamental first requirement and AMCO's failure to do so would have obliged BCL to reject the
its argument. In short, had it known then what it now knows it would have summarily rejected AMCO's tender and been obliged to do so. Other
tenders would then, having been similarly E evaluated, be considered and, if found eligible, the contract would have been awarded to the
worthiest tenderer. In this regard BCL has adduced evidence of one of AMCO's competing tenderers (Deilmann Haniel GmbH) who say that they
would have objected to AMCO's tender had they known that it was unresponsive. No doubt BCL has introduced this evidence in order to show
prejudice but I am not convinced that it advances their argument at F all and would like to get it out of the way at this juncture. In the first
place, the present dispute does not involve Deilmann; secondly, BCL has not suggested that it suffered actual prejudice as a result of Deilmann
falling out of the picture; thirdly, it was not Deilmann's function as a tenderer to object to a competing tender; and, fourthly, BCL does not
allege that Deilmann would have qualified as an accepted tenderer were it not for AMCO's G misrepresentation. On the contrary, it seems to me
from reading the affidavit of Deilmann's representative (annexure BCL 13 to the founding affidavit) that Deilmann was rejected for some
undisclosed reason. Paragraph 4 of that affidavit is full of meaning where it states that: H
'Deilmann was not successful, but had done everything in its power to comply with the requirements as set out in the tender invitation. . . .'
(Emphasis added.)
That can only mean that it did not in fact comply with the necessary requirements and the introduction of this evidence is irrelevant at best
2002 (1) BLR p243
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and a redherring at worst. If there were other tenderers BCL has not mentioned them. A
On the face of it BCL's interpretation of annex 5, as read with articles 20.1, 29.1 and 34.4 of the EDF regulations governing the tender, shows
that AMCO's tender was, given the photocopying pretence in respect of the portion B tender form, preliminarily unresponsive and no acceptance
of the tender could or should have been granted B had the true facts been known at the time. Accordingly, so the argument proceeds, BCL was
entitled (nay obliged in terms of the EDF regulations and the tender dossier) to avoid the contract ab initio owing to what it alleges is a material
© 2018 Juta and misrepresentation
fraudulent Company (Pty) Ltd. which induced the contract. Having done so,Downloaded : Mon
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genesis
was spawned by agreements now avoided and nonexistent. And if that is so, then the arbitration proceedings are a nullity and the remaining
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(Emphasis added.)
2002 (1) BLR p243
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fraudulent misrepresentation which induced the contract. Having done so, the arbitration agreement is rendered otiose, given that its genesis
dispute hinges on C an action in delict to which I have referred. It is time to consider AMCO's response to the signature issue.
The photocopying pretence (if that is the right expression) is not denied by AMCO nor does it seek to be excused its conduct or rather that of
its agent, Shaft Sinkers. Instead it maintains that, although Schmill, the only D authorised signatory, did not sign the portion B tender form in
'wet ink' (as he did with portion A and other documents contained in and with the tender), nevertheless the signature is that of Schmill and
accordingly there is no misrepresentation. The submission of a photocopy of the signature page indicated AMCO's intention to be bound by the
tender and a full explanation of the events leading up to the decision by Shaft Sinkers to incorporate E the photocopy page is provided in the
affidavits of two Shaft Sinkers' employees (Van Dyk and Germishuys) as well as the affidavit of Schmill himself. I do not think that it is necessary
to traverse all that has been said by these deponents. The explanation is perfectly plausible and credible and BCL is unable to point to any
inconsistency in the explanation which might indicate the contrary. Shaft Sinkers were given full authority by F AMCO to complete all the tender
documentation including authority to complete documents which had been signed by Schmill, either partially completed or in blank, and I do not
understand BCL's argument to include an attack on this arrangement between AMCO and Shaft Sinkers. It is clear that there was a certain flurry
of activity on 3 November 1998 (the day before the tenders were due to be presented in Selibe Phikwe). AMCO, which is G based in the UK,
were in contact with Shaft Sinkers (based in South Africa) while the finishing touches were being applied to its tender. The documents which
Schmill did sign were faxed to Shaft Sinkers that day and it was only late that evening that Van Dyk noticed that there was only one signature
page for the two tender forms. Time was now of the essence in order to get the tender submitted by the deadline. In view of the fact that
Schmill was the authorised signatory and that the tender was quite clearly for the entire contract (portions A and B) as H explained at a site
meeting earlier (moreover there was a signed covering letter from Schmill referring, inter alia, to both portions of the tender) Shaft Sinkers
decided to adopt the expedient exercise of photocopying the signature page in respect of portion A in order to ensure strict compliance with
the portion B tender form. There
2002 (1) BLR p244
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is no doubt that this exercise was a deliberate deception to create in the mind of BCL at the tender opening A ceremony the belief that Schmill
2002 (1) BLR p242
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(Emphasis added.)
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had actually signed the portion B tender form. But was it a misrepresentation? I have given this anxious consideration and have come to the
conclusion that it was not. Put simply, a misrepresentation is a false statement of fact made by one party to another before a contract is
entered into. The quality of the falsehood or untruthfulness opens further enquiries into its nature, ie whether it was made B fraudulently or
innocently and the consequences that flow from the answer to those enquiries. Other relevant considerations are the materiality of the
misrepresentation and whether or not the ensuing contract was induced by it. But those are secondary matters. It must be remembered that
misrepresentation in relation to a contract subsequently concluded does not exist in a vacuum. There must, in my view, in order for a
misrepresentation to C come into existence be a tangible statement of fact impacting upon the contractual substance later agreed which the
utterer of the falsehood made. The signature deception by AMCO (or Shaft Sinkers) achieved only one objective, which it set out to do, and
that was BCL's consideration of its tender. The falsehood was confined to D deceiving BCL that Schmill had actually signed the portion B tender
form so that the tender would be considered. There was no false statement of fact in relation to the content of the tender and hence I
consider that there was no misrepresentation. That being so I do not need to grapple with the issue of fraudulence or innocence nor the
question of materiality and whether the contract was induced by the signature deception. I hope I have made it clear that I am not
manipulating the English language. In isolation and without more there is probably no doubt E that 'to deceive' and 'to misrepresent' are
synonymous (a magician practises both in order to make an innocent living) but a misrepresentation in its legal sense in relation to a contract
later concluded must, as I have said, impact on the substance of the contract. Christie The Law of Contract (4th ed) says this (at p32 7):
'Intent to defraud must be proved by a party who claims damages for fraud. The claim, as will be seen below, is delictual F not contractual in nature, so intent
to induce is not in itself material, but, in a case where the damages result from entering into the contract, is swallowed up in the larger question of intent to
defraud. The reason why this latter intent must be proved is that, without it, there is no causal connection between the deliberately or recklessly false statement
and the loss G for which damages are claimed. If A tells a lie and B unexpectedly and unreasonably acts upon it to his loss, the lie cannot be said to have caused
the loss so A should not be held responsible for it. But if A actually intended to cause the loss, or must be taken to have intended to cause it because it was the
natural and probable consequence of his lie, or if A intended by the lie to benefit himself he should be held responsible, and a convenient way of identifying the
element that H exists in the three situations in which A is liable but not in the one in which he is not is to call it intent to defraud.'
In this instance (distinguishable from the facts in Berkemeyer v. Woolf 1929 CPD 235) any intent by AMCO to induce the contract was neither
2002 (1) BLR p245
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intended
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AMCO was the award of the tender. AMCO agrees with that, so the issue is whether such 'benefit' skewed the contractual substance so that
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intended by the latter to defraud BCL, nor cause it loss, nor for AMCO to benefit itself. If I understand BCL's A argument correctly the benefit to
AMCO derived undue advantage and BCL was correspondingly either injured or intended to be injured. It wasn't.
In reality, BCL's complaint is that the signature deception is a direct violation of article 29.1 of the EDF B regulations governing the contract as
read with annex 5 of the Instructions to Tenderers, both of which form part of the tender dossier, and which I have referred to above. In short,
the submission is that as the portion B Tender Form was not 'duly signed' by Schmill the entire tender was not preliminarily responsive and was
to be rejected without further evaluation. There are two answers to this submission. First, although the tender forms for C portions A and B are
in respect of two contracts for separate aspects of the work, it is common cause that when the tender was awarded it was to be as one
contract to the same tenderer (see para 27.2 of the founding affidavit and para 43 of the answering affidavit). Following acceptance of AMCO's
tender a written contract was given to them in respect of portion A but not portion B. In the arbitration the parties are agreed (and they are
not agreed on much else) that the contract in respect of portion B is tacit and that is unsurprising. Only by means of D that understanding and
agreement can meaning be afforded to BCL's pretender stipulation (at a mandatory contractual site visit by interested tenderers on 1 and 2
September 1998) that both portions (or both contracts) E would need to be awarded as a single contract. There are clearly deep divisions
between the parties as to which contract conditions governed the portion B tender (the tacit contract) but that is not a matter for me to
decide. There may not even have been animus contrahendi. However, once the parties were ad idem that both portions were to be assimilated
as a single contract then I ask myself how BCL is able to contend for a fraudulent misrepresentation of the entire single contract by virtue of
the signature deception in respect of portion B only. Is F BCL suggesting that this 'sin of the signature' in respect of portion B vitiates portion A
as well? The answer to that, from the draft intendit which it proposes to utilise as its delictual claim, is in the affirmative. I have a fundamental
problem with this argument. Schmill had not only duly and properly signed the portion A tender form; G the entire tender was submitted under
cover of a letter dated 3 November 1998 (annexure RS10 to the answering affidavit), which was signed by Schmill personally. I pause
momentarily to note that Schmill's signature on both the portion A tender form and the covering letter although signed in 'wet ink' in the UK
became a faxed copy of the signature by the time BCL opened the tenders and BCL did not take umbrage, then or now, that the faxed copy
(which closely resembles a photocopy) was not 'duly signed' for that reason. I ask myself a H hypothetical question. If Schmill had attended the
tender opening ceremony personally instead of entrusting the submission of AMCO's tender to Shaft Sinkers (and supposing furthermore that the
signature page for the portion B tender form had, due to inadvertence, not been signed by Schmill and such omission was picked up by BCL)
would Schmill not have been permitted by BCL to get his pen out of his pocket and
2002 (1) BLR p246
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do the necessary? If BCL's answer to this question, which I regret I did not ask their counsel at the hearing A because it did not occur to me, is
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that Schmill could not be permitted to append his signature because the tender was now open and the failure to sign one portion rendered the
entire tender not preliminary responsive, then, I regret, I would regard that as an act of pure childishness and unworthy of those charged with
BCL's commercial governance of the tender process. Imagine that a competing tenderer was then awarded the contract, which B BCL did not
find as attractive as AMCO's and, let us say, P1 million more expensive. Because Schmill is 'barred' from correcting a minor clerical omission BCL
will then act to its own detriment and that of its funding organisation (the EDF) by adhering so punctiliously to one small aspect of the latter's
regulations. I cannot bring myself to believe that such a scenario could actually happen but if it did AMCO would almost certainly have C
obtained appropriate legal redress. Similarly, if the BCL representative who opened AMCO's tender had immediately spotted the duplicated
signature on the portion B tender form and rejected it then and there for that reason and without further enquiry as to whether AMCO intended
to be bound (perhaps by securing a fax from Schmill the same day saying that he authorised his signature to be copied as a simple expedient)
then AMCO D would, I think, have been well suited for redress.
The second answer to BCL's contention that the portion B tender form was not duly signed is that annex 5 (the 'Criteria for evaluation' section
of the tender dossier which begins with the 'preliminary responsiveness' issue) is part of the 'instructions to tenderers' (section C of the tender
invitation) but annex 5 is not part of the EDF E regulations and does not amend the latter. I say that without ignoring article 16.1 of those
regulations which is recited above. In this regard I agree with Mr Gautschi's submission that the responsiveness of AMCO's tender is to be
judged in terms of EDF regulations 34.2 and 34.3. The former speaks of the tender being 'substantially responsive' and the latter elaborates
upon such responsiveness as meaning 'without material deviation' and then F later explains such materiality as a substantial inconsistency with
the tender dossier generally. The portion B signature issue is, in my view, of quite insufficient magnitude to render AMCO's tender substantially
unresponsive and I hold that this is the correct test. I am not persuaded at all by the 'carbon copy' cases cited to me by Mr Gautschi (Lynes v.
International Trade Developer Inc 1922 NPD 301 and Da Mata v. Otto NO 1972 (3) SA 861 (A), which were dealing with issues of best evidence
nor by Herstigte Nasionale Party van SuidAfrika v. G Sekretaris van Binnelandse Sake en Immigrasie 1979 (4) SA 274 (T), which dealt with
antecedent signature of a suretyship document. I do not think that some of the remarks contained in those judgments which, when extracted
without reference to the facts, might appear to support AMCO's argument, can be so extracted in support of the issue in casu. Nevertheless,
and without such support, AMCO's argument that its tender was H substantially responsive (and therefore responsive) is sound and I reject
BCL's contention to the contrary, viz that only preliminary responsiveness is to be considered. If I am wrong about this AMCO has two additional
arguments.
Both of these arguments are to the effect that BCL's intended delictual claim is doomed to failure if they elect to proceed with it for reasons
other
© 2018 Juta and Company (Pty) Ltd. Downloaded : Mon Oct 02 2023 19:18:24 GMT+0200 (South Africa
2002 (1)Standard
BLR p247Time)
COLLINS AJ
2002 (1) BLR p245
COLLINS AJ
2002 (1) BLR p246
COLLINS AJ
arguments.
other
2002 (1) BLR p247
COLLINS AJ
than the signature issue and if AMCO is correct with either argument then even if BCL has 'a foot in the door' by A reason of misrepresentation
in respect of the signature issue the intended delictual claim can never succeed and accordingly the whole rationale for a stay of the arbitration
evaporates. It is for this reason that I would describe them as 'additional' rather than 'alternative' arguments. I have wondered to myself what
the state of the arbitration might be if I ruled that the signature issue was a misrepresentation entitling BCL to avoid the contract B ab initio
(and also the arbitration in consequence) but found that there was no hope of the delictual claim succeeding and refused a stay on that
account. It seems to me I might, in effect, be faced with the contradiction of ordering the continuation of an arbitration which I had also found
to be non est on account of the successful avoidance of the contract giving birth to the arbitration. Fortunately, in view of my finding in
relation to the C signature issue I am relieved of that notsolittle conundrum.
The first additional point is that BCL has not made out a jurisdictional case for suing AMCO and Shaft Sinkers in delict in the Botswana courts as
both are peregrini and hence this court has no jurisdiction over them. There is nothing contained in either the founding or replying affidavit
which addresses this issue and it is a point well D taken. When dealing with it during the course of argument I was informed by Mr Jordaan that
'even as we speak' his instructing attorneys were busy preparing the necessary application to this court for leave to attach certain assets of
both AMCO and Shaft Sinkers in order to found or confirm jurisdiction. Without being specific Mr Jordaan told me that the assets in question
were shares in Botswana companies. Although it is a pity that this E was not dealt with pointedly in the affidavits I feel that I must allow some
latitude. Counsel, in the knowledge of the gravity of his assurances if untrue, must be believed and I propose to assume that, by the time this
judgment is delivered, an application ad fundandam/confirmationem will have been launched. According, I do not propose to consider the point
any further.
The second additional point is that the summons in delict which BCL seeks to issue in this court is excipiable at F its core and a trial court would
be bound to throw it out as disclosing no cause of action, no matter what remedial devices are open to BCL to cure the cause of complaint.
This point too is well taken. Although it would be for the trial court to pronounce on the issue of excipiability it is not one which I can ignore or
avoid for that reason. To be blunt, however meritorious BCL's case may be on the alleged 'fraud', if there is no remaining G cause of action in
the summons (the 'draft intendit' annexed to BCL's affidavit) what then is left of the rationale for seeking a stay of the arbitration? The first 13
paragraphs of the draft intendit set out the history of the matter leading upto BCL's decision to avoid the contracts ab initio upon discovery of
what
© 2018 it calls
Juta 'the deliberate
and Company (Pty) Ltd.misrepresentation perpetrated by first and second defendant'
Downloaded (AMCO
: Mon Oct 02and
2023Shaft Sinkers
19:18:24 respectively).
GMT+0200 Naturally,
(South Africa Standard Time)
H
for the purposes of what follows, I assume that there was an actionable misrepresentation although I have already decided that there was not.
2002 (1) BLR p246
COLLINS AJ
arguments.
other
2002 (1) BLR p247
COLLINS AJ
any further.
what it calls 'the deliberate misrepresentation perpetrated by first and second defendant' (AMCO and Shaft Sinkers respectively). Naturally, H
The intendit then continues as follows:
'14. In the premises the first defendant and the second defendant, were under a legal duty to properly and timeously perform the works,
2002 (1) BLR p248

COLLINS AJ
alternatively cause the works to be performed, in accordance with the program (the 827 day program) presented to A the plaintiff.
15. In breach of their aforesaid duty, and at Selibe Phikwe, the first and second defendants;
15.1 negligently failed to cause such works as have been completed (the "improper performance") to be properly performed; and
15.2 during February 2000 intentionally abandoned their said duty in that first defendant, represented by second B defendant, purported to cancel the
agreements and refused to continue with the works in terms thereof ("the abandonment").
15.3 As a direct and foreseeable consequence of the unlawful conduct of the first and second defendants as set out above, plaintiff sustained the
damages set out hereunder.' C
As will be seen, para 14 alleges that both AMCO and Shaft Sinkers were 'under a legal duty' to perform the works by which is meant a legal duty
to BCL actionable under the lex Aquilia. In the first place I fail to understand how Shaft Sinkers can be said to be under any legal duty to BCL at
all and for that reason alone their inclusion as a party to the action is misconceived. They may have been the perpetrators of the
misrepresentation in relation D to the signature issue but quite how BCL can contend that they acquired a duty to perform the works and were
negligent in not doing so is beyond me. Insofar as AMCO is concerned their duty to BCL to 'timeously perform the works' is exclusively
contractual. The 827day programme arises expressly out of the contracts (written in respect of portion A and tacit in respect of portion B)
and, although in an appropriate case different actions might E arise from the same facts and may be pleaded accordingly, I am unable to see
how the facts in casu are able to support a delictual claim. There is no allegation of wrongfulness nor am I able to infer any, and the facts and
conclusions recited in the intendit all spring from the contractual relationship between the parties, a breach F whereof does not per se give rise
to a claim in delict. In this regard see Lillicrap, Wassenaar and Partners v. Pilkington Brothers SA (Pty) Ltd 1985 (1) SA 475 (A), especially at p
499DG, where the following was said:
'In the present case we do not have an infringement of any of the respondent's rights of property or person. The only G infringement of which the respondent
complains is the infringement of the appellant's contractual duty to perform specific professional work with due diligence; and the damages which the respondent
claims, are those which would place it in the position it would have occupied if the contract had been properly performed. In determining the present appeal we
accordingly have to decide whether the infringement of this duty is a wrongful act for purposes of Aquilian liability. No H authority in Roman, or RomanDutch law
has been quoted, nor have I found any, for the proposition that the breach of such a contractual duty is per se a wrongful act for purposes of Aquilian liability
(with the corollary that, if the breach were accompanied by culpa, damages could be claimed ex delicto).'
other
2002 (1) BLR p247
COLLINS AJ
any further.
what it calls 'the deliberate misrepresentation perpetrated by first and second defendant' (AMCO and Shaft Sinkers respectively). Naturally, H
The intendit then continues as follows:
2002 (1) BLR p248

COLLINS AJ
2002 (1) BLR p249
COLLINS AJ
Accordingly, I hold that the draft intendit is excipiable without prospect of being cured even if BCL were afforded A an opportunity to do so in
terms of Order 20 Rule 20. I am in agreement with the characterisation of the issue by Mr Turner (who argued this aspect on AMCO's behalf)
that it would be an exercise in futility for this court to stay the arbitration pending determination of an action which is stillborn.
The third additional argument relates to an interpretation of clause B.2 of the arbitration agreement between the parties. This clause reads as
follows: B
'2.1 AMCO and BCL agree that all disputes between them and arising out of the contracts and/or their termination and/or the works performed at the BCL mine
in Selibe Phikwe ("the disputes") be resolved in one arbitration process ("the arbitration"). C
2.2 The arbitration will be governed by the provisions of this arbitration agreement and the disputes will be fully particularised by way of the exchange of
pleadings as more fully described in Section E below."
AMCO contends that this clause is sufficiently all embracing for the arbitrator to be seized with jurisdiction to D hear and adjudicate upon the
delictual claims and defences which BCL contends fall outside his jurisdiction and can only be ventilated in this court. In essence the issue is
whether 'all disputes [between the parties] and arising out of the contracts . . .' is a sufficient description to include a dispute which did not
exist at the time the arbitration agreement was concluded on 17 November 2000. The arbitrator clearly did feel uneasy about this and I do not
interpret his 'award' as a reasoned decision that he was vested with jurisdiction to include the new E dispute as part of the reference. As I see
it the arbitrator refused to stay for reasons of practicality and convenience (as I have said earlier) but left open the question of whether he had
jurisdiction. I'll go further. His remarks, read as a whole, point to a wish that the issue be determined by this court so that he continue the F
arbitration in the secure knowledge that he was not wasting anyone's time and money by refusing the stay. In this regard his approach was
m e a s u r e d a n d b a l a n c e d w i t h i n t h e p a r a m e t e r s o f Christopher Brown Ltd v. Genossenschaft Oesterreichischer Waldbesitzer
Holzwirtscharftsbertriebe Registrierte Genossenschaft Mit Beschrankter Haftung [1953] 2 All ER 1039 (QB) where the following was said: G
'It is not the law that arbitrators, if their jurisdiction is challenged or questioned, are bound immediately to cease to act, and to refuse to act, until their
jurisdiction has been determined by some court which has power to determine it finally. Nor is it the law that they are bound to go on without investigating the
merits of the challenge and determine the matter in dispute leaving the question of their jurisdiction to be held over until it is determined by some court which
had power to determine H it. They might then be merely wasting their time and everybody else's. They are not obliged to take either of those courses. They are
entitled to inquire into the merits of the issue whether they have jurisdiction or not, not for the purpose of reaching any conclusion which will be binding on the
parties, because that they cannot do, but for the purpose of satisfying
2002 (1) BLR p250
COLLINS AJ
themselves, as a preliminary matter, whether they ought to go on with the arbitration or not.' A
2002 (1) BLR p248

COLLINS AJ
2002 (1) BLR p249
COLLINS AJ
follows: B
2002 (1) BLR p250
COLLINS AJ
(Emphasis added.)
If I were to find merit in BCL's intended cause of action in delict for the purposes of entertaining a stay of the arbitration then I would have to
grapple with the arbitrator's jurisdiction in respect of that dispute. However, having decided that BCL's intended action in this court is one
without merit, for all the reasons I have advanced, it B seems to me that to continue deliberating in something of a vacuum becomes
semantical. I do not propose to do so. I will presently make orders refusing a stay of the arbitration, which will then continue immediately. BCL
has obtained leave to amend its plea in the arbitration in order to introduce the avoidance ab initio of the contracts by C virtue of the alleged
misrepresentation. It is up to them to decide whether they will now proceed with the amendment. AMCO has conceded a readiness for that
issue to be determined within the scope of the arbitration. That offer was declined by BCL but they may care to think again (if the offer is still
open) in the light of this judgment. To the arbitrator I can only say this. I refuse to order a stay of the arbitration before you for the reasons D
contained herein. If BCL elects to continue with its intended delictual action in this court then nothing can prevent it from doing so
contemporaneously with the arbitration. AMCO may then seek a stay of that action in this court pending the outcome of the arbitration but,
respectfully, that is not a matter that needs concern either you or this court at this stage. Your jurisdiction is confirmed and will suffer no
interference on the basis of the E application made to this court.
I cannot conclude this judgment without reference to an issue which has been bothering me throughout. I raised my concern with Mr Jordaan
during the course of argument but was unable to pursue it meaningfully because it arises for the first time out of allegations in the replying
affidavit and certain attachments to that affidavit. Even though AMCO had no opportunity to respond to the allegations, and in fact took
umbrage at much of the new F material, I do not think I can ignore it entirely for reasons which will become clear. At paragraphs 15.2 to 15.7 of
the answering affidavit AMCO makes a point regarding the distinction between the legal personality of Shaft Sinkers and its parent company in
order to demonstrate that no delictual liability can arise against the former. It is G not an issue which I need to decide upon in view of other
findings and decisions to which I have come. However, in reply BCL (at paras 2.3 and 10.2) has attached and referred to a secret 'Cooperation
Agreement' between AMCO and Shaft Sinkers in order to defeat the latter's contentions. Perhaps it achieves that purpose but it goes much
further. The existence of this agreement (signed on 16 March 2000 but to come into effect on 1 H October 1998, ie one month before the
closing date for submission of tenders) is stated, at clause 11 thereof, to be confidential as between the parties and not to be disclosed to any
third party which would include BCL. In fact the agreement is only one in a series of seven agreements (all attached to the replying affidavit as
annexure BCL33). Some of the agreements include the parties' Botswana
2002 (1) BLR p251
COLLINS AJ
subsidiaries
© 2018 as parties
Juta and Company but
(Pty) that does not detract from the fact that they connect
Ltd. in a series
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02 2023 achieve GMT+0200
a A single(South
objective
Africaand that Time)
Standard is
to assign the entire construction contract with BCL from AMCO to Shaft Sinkers. Rather than analysing these series of agreements in order to
2002 (1) BLR p249
COLLINS AJ
follows: B
2002 (1) BLR p250
COLLINS AJ
(Emphasis added.)
2002 (1) BLR p251
COLLINS AJ
subsidiaries as parties but that does not detract from the fact that they connect in a series in order to achieve a A single objective and that is
demonstrate how the assignment worked (very cleverly it has to be said) it will be simpler, if less sophisticated, to quote from a portion of the
evidence before the arbitrator in the course of examination and crossexamination by BCL of one of AMCO's witnesses one B Potgieter (a
Shaft Sinkers senior employee). The witness was shown a letter written by his managing director, Mr Hobday, to AMCO dated 7 May 1999
(annexure BCL41 to the replying affidavit), which reads as follows:
'CONFIDENTIAL C
Amco Corporation Plc
Amco House
25 Moorgate Road
ROTHERHAM
South Yorkshire S60 2AD 7 May 1999 D
Dear Sirs
RE: CONTRACT NO C830 009S (PORTION "A" AND "B").
Further to the meeting held in this office on the 6th instant between Mr O H Schmill and the writer; and notwithstanding the E various agreements already in
place, I wish to record the following with regard to the Selibe Phikwe association:
1. It is clearly understood that every care will be taken by Shaft Sinkers to ensure that Amco's reputation is held in the highest esteem.
2. In order that Shaft Sinkers may qualify for the Selibe Phikwe extension project, in spite of financial restriction, Amco has agreed to "front" for Shaft Sinkers. F
3. Amco will receive a fee for this.
4. In the event that Shaft Sinkers is unable to complete this contract or in the event that the client terminates the contract, Shaft Sinkers hereby agrees to
indemnify Amco against any financial penalties arising from such termination. G
Yours faithfully,
H M D Hobday'
(Emphasis added.) Then the following appears in the transcript of the evidence: H
'Commissioner: Mr Hobday is managing director of . . . (intervenes). . . . He is the managing director of Shaft Sinkers.
...
What do you say about the statement in order that Shaft Sinkers may
2002 (1) BLR p252
2002 (1) BLR p250
COLLINS AJ
(Emphasis added.)
2002 (1) BLR p251
COLLINS AJ
'CONFIDENTIAL C
Amco House
25 Moorgate Road
ROTHERHAM
Dear Sirs
Yours faithfully,
H M D Hobday'
...
2002 (1) BLR p252
COLLINS AJ
qualify AMCO have agreed to front for Shaft Sinkers? . . . What is the question, sorry? A
Do you agree with that statement . . . Yes I do.
And for that it gets a commission? . . . That is how it was structured, yes.
And that is all it gets? . . . Yes.
AMCO United Kingdom? . . . Yes.
...
Crossexamination by Mr Jordaan (contd): Mr Potgieter, I want to take upwi th you the agreement, the cooperation B agreement it is called, which underlines
the relationshipbetween AMCO United Kingdom and Shaft Sinkers. We received this document under cover of a letter of 12 April 2000 from Messrs Deneys Reitz:
"we enclose the cooperation agreement entered into between claimant and Shaft Sinkers International (Pty) Ltd as requested". C
That document, just by way of background, was not amongst the discovered documents at that time. It was not at Shaft Sinkers so we asked for it and
eventually got it.
Commissioner: Will this be exhibit 9? D
Mr Jordaan: As you please, Mr Arbitrator
Commissioner: Is it correct, exhibit 9?
Mr Jordaan: As it pleases Mr Arbitrator. It is, well a supplementary discovery, I understand, was subsequently made covering the document.'
In short, and I believe this to be common cause notwithstanding AMCO's inability to comment, it was never intended that AMCO would be the
de facto contractor and carry out the work but rather it would 'front' for Shaft E Sinkers by allowing its reputation and eligibility to be used to
secure a successful tender and for which it would be paid a commission of 3% of the invoice value of the entire project (less any PC amounts).
This commission provision is contained at cl 2 of the seventh agreement in the series of seven constituting the effective assignment of the
construction contract to which I have referred and is confirmed in evidence before F the arbitration by AMCO's own witness (see para 10.6 of
the replying affidavit).
In view of the fact that these matters were all raised in reply for the first time it would be unwise to speculate on the reason for Shaft Sinkers'
failure to tender for the contract in its own right even though cogent explanations G are present in the papers. I am adverting to it for another
reason altogether. The assignment agreements (if I may call them that) apparently came into the possession of BCL (or its legal
© 2018 Juta and Company
representatives) (Pty) 12
around Ltd.April 2000 by means of a supplementary discovery
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of documents 02 2023 19:18:24
presumably after GMT+0200 (South
the pleadings Africa
had Standard
closed Time)
in the
arbitration but before the hearing of the arbitration actually commenced, which I was informed from the bar was on 28 May 2000. It is not clear
2002 (1) BLR p251
COLLINS AJ
'CONFIDENTIAL C
Amco House
25 Moorgate Road
ROTHERHAM
Dear Sirs
Yours faithfully,
H M D Hobday'
...
2002 (1) BLR p252
COLLINS AJ
...
eventually got it.
representatives) around 12 April 2000 by means of a supplementary discovery of documents presumably after the pleadings had closed in the
precisely when Potgieter gave his evidence, as outlined above, but one thing is H clear and that is that BCL became aware of the complete
assignment of the contract from AMCO to Shaft Sinkers for the first time on 12 April 2000 (before the arbitration hearings began) and this was
corroborated by Potgieter's evidence during the course of the arbitration. I can only imagine that this revelation must have come like a bolt
2002 (1) BLR p253
COLLINS AJ
out of the blue to BCL and its representatives. Without putting too fine a point on it, they had been thoroughly A misled by both AMCO and
Shaft Sinkers from the very beginning. The deponent to BCL's replying affidavit says this (at para 2.4.8):
'As I will demonstrate in due course, from the evidence adduced by AMCO during the arbitration and from the documents provided by AMCO for the purposes
of the arbitration, SSI was indeed responsible for the B submission of the tender and the execution of the works . . .'
(emphasis added) and then again (at para 3.3)

'AMCO's apparent disinterest arises from the fact that it was a mere front in respect of the project in question, having concluded secret "Cooperation
agreement" with SSI (annex BCL33).' C
(Emphasis added.)
BCL discovered, during the arbitration process, that they had been duped by an elaborate 'fronting' exercise behind their backs (I beg
forgiveness for the awkward juxtaposition of these words) which thoroughly subverted D the EDF regulations governing the tender process and
in particular article 4.1 (quoted earlier). And yet, notwithstanding this fraud (surely it is no less than that on BCL's version), BCL elected to
continue with the arbitration which by extension, means they elected for specific performance and their contractual remedies against AMCO
through the arbitral process. There is simply no comparison between this 'sin' and the signature E deception upon which it now wishes to rely to
avoid the contracts ab initio. A more glaring example of approbation and reprobation is hard to imagine, albeit in respect of two different
misrepresentations. When I put the matter to Mr Jordaan he responded by saying that the assignment fraud (my shorthand) was 'grist to the
mill' in favour of his client in respect of the intended delictual action based on the signature deception. By this I F understand him to be saying
that it is just additional material in his client's favour which corroborates the intended delictual action. I regret that I do not see it that way at
all. That is like saying a man is guilty of a parking violation and an indication of his moral turpitude is demonstrated by reference to a previous
conviction for robbery. The relevance of comparing the two 'sins' (one an elephant and the other an ant) seems to me to reflect G adversely on
BCL's present motivation for wishing to avoid the contracts ab initio. BCL could have avoided the contracts at an early stage of the arbitration
for what seemingly is an unanswerable reason and yet it chose not to. I am somewhat nonplussed as to BCL's precise motivation but, without
making a finding of fact, these events do lend credence to AMCO's surmise that the proceedings in this court were launched in order to avoid
an H imminent adverse award by the arbitrator against BCL. Why else did BCL choose to put the ant under the microscope at this time and view
2002 (1) BLR p252
COLLINS AJ
...
eventually got it.
representatives) around 12 April 2000 by means of a supplementary discovery of documents presumably after the pleadings had closed in the
precisely when Potgieter gave his evidence, as outlined above, but one thing is H clear and that is that BCL became aware of the complete
assignment of the contract from AMCO to Shaft Sinkers for the first time on 12 April 2000 (before the arbitration hearings began) and this was
2002 (1) BLR p253
COLLINS AJ

(Emphasis added.)
the elephant from the wrong side of the telescope at an earlier stage?
I will presently make an order dismissing the application and I can think of no reason why costs should not follow the result. Mr Gautschi has,
2002 (1) BLR p254
however, argued for an appropriate special order in respect of costs on the grounds that the launching of the A application is in itself vexatious.
I cannot and do not go along with this submission. The most that can be said is that the application may have been misguided and that, in my
view, is insufficient to warrant any special order. As to the submission that intemperate and insulting language used in BCL's replying affidavit
warrants a special order, I disagree. A time will come when this court will mark its displeasure at rude and insulting language in B affidavits with
an appropriate and punitive costs order. This is not such a case.
The order of this court is as follows:
1. The application is dismissed.
2. The arbitration between applicant and second respondent before the first respondent is to continue C forthwith.
3. Applicant is to pay first respondent's costs, such costs to include the costs of engaging two counsel.
Application dismissed.
2002 (1) BLR p254

E
2002 (1) BLR p253
COLLINS AJ

(Emphasis added.)
the elephant from the wrong side of the telescope at an earlier stage?
2002 (1) BLR p254

2002 (1) BLR p254

E
2002 (1) BLR p254
2002 (1) BLR p254

E
2002 (1) BLR p254

E

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Citation 2002 (1) BLR 221 (HC)

Court High Court, Lobatse

Case No Misca No 465 of 2001

Judgment March 5, 2002

2002 (1) BLR p222

2002 (1) BLR p223

2002 (1) BLR p222

2002 (1) BLR p223

2002 (1) BLR p224

2002 (1) BLR p223

2002 (1) BLR p224

2002 (1) BLR p225

Berkmeyer v. Woolf 1929 CPD 235

2002 (1) BLR p224

2002 (1) BLR p225

Berkmeyer v. Woolf 1929 CPD 235

No appearance for the first respondent.

2002 (1) BLR p226

2002 (1) BLR p225

Berkmeyer v. Woolf 1929 CPD 235

No appearance for the first respondent.

2002 (1) BLR p226

2002 (1) BLR p227

2002 (1) BLR p226

2002 (1) BLR p227

2002 (1) BLR p228

2002 (1) BLR p227

2002 (1) BLR p228

2002 (1) BLR p229

2002 (1) BLR p228

2002 (1) BLR p229

2002 (1) BLR p230

2002 (1) BLR p231

2002 (1) BLR p229

2002 (1) BLR p230

2002 (1) BLR p231

2002 (1) BLR p232

2002 (1) BLR p230

2002 (1) BLR p231

2002 (1) BLR p232

2002 (1) BLR p233

2002 (1) BLR p231

2002 (1) BLR p232

2002 (1) BLR p233

2002 (1) BLR p232

2002 (1) BLR p233

2002 (1) BLR p234

2002 (1) BLR p233

2002 (1) BLR p234

2002 (1) BLR p235

The relevant portions are the following:

2002 (1) BLR p234

2002 (1) BLR p235

The relevant portions are the following:

2002 (1) BLR p236

2002 (1) BLR p236

2002 (1) BLR p237