COMPLANT BOTSWANA PTY LTD v HUTCHINGS, ARBITRATOR NO AND ANOTHER 2012 2 BLR 517 HC

Citation: 2012 2 BLR 517 HC

Court: High Court, Lobatse
Case No: Misca No 664 of 2008
Judge: Makhwade J
Judgement Date: 19 September 2012

Counsel: S T Pilane with him M L Mogobe and DM Ndlovu for the applicant.rnJ CarrHartley for the second respondent.

Flynote
Practice and procedure—Locus standi—Requirement to establish in all cases.Review—Of arbitration
award—Grounds—Gross irregularity not a ground for review of arbitration award.

Headnote
The applicant applied for the review and setting aside of an award madeby the arbitrator, the first respondent, in an
arbitration between itself and the second respondent contending that there had been gross irregularities in the conduct
of the arbitration. The second respondent raised a preliminary issue, namely that the applicant had not set out in its
founding affidavit the grounds on which it had locus standi. In its replying affidavit it stated that it and the second
respondent were Botswana registered companies conducting businessin Botswana, the contract was concluded and
performed within Botswana and the dispute arising out of it arose in Botswana. It contended furthermore that the
arbitration in contention was conducted wholly within the Republic of Botswana and in accordance with the laws of
Botswana. It contended that in any event in proceedings under Order 61 of the Rules of the High Court (Cap 04:02)
(Sub Leg) and s 13 of the Arbitration Act (Cap 06:01) the locus standiof the parties were not required to be alleged. The
second respondent applied for the striking out of the paragraphs in the replying affidavit containing the facts on which
locus standi were founded. As regards the merits, the second respondent contended that the grounds upon which an
arbitration award could be set aside were extremely limited and they were limited to those stated in s 13(2) of the
Arbitration Act, namely where the arbitrator had misconducted the proceedings or where an award had been improperly
procured. It contended that none of those requirements were present in the instant case.2012 (2) BLR
p518MAKHWADE JHeld: (1) The argument that in proceedings under Order 61 of the Rulesof the High Court and s 13
of the Arbitration Act it was not required that the locus standi of the parties be alleged was without merit. Any party
appearing before court in Botswana had to allege facts that indicated the locus standi of the parties. The same applied
to jurisdiction and these matters could not be presumed. Application for the striking out of the relevant paragraph
granted.(2) Gross irregularity was not a ground for the review of arbitral awards inBotswana law and the court could not
import into its law a provision that was not there. Cases dealing with gross irregularity had no application in the law of
Botswana.

Case Information
Cases referred to:Basiami Building Construction (Pty) Ltd v Tembo and Others(Misca291/99), unreportedChampion
Construction (Pty) Ltd v Allen and Another[2006] 2 BLR 56China Jiangsu International Botswana (Pty) Ltd v Vlug and
Another(Misca 50/10), unreportedChintala v Mater Spei College[2003] 2 BLR 348Dickenson & Brown v Fisher's
Executors1915 AD 166Ellis v Dessai1909 TPD 576Goldflelds Investment Ltd v City Council of Johannesburg1938 TPD
551Joina and Associates v Modikwa[1999] 1 BLR 475, CAKalahari Ranches (Pty) Ltd v Botswana Network of AIDS and
Service Organisation[2007] 1 BLR 646Kweneng Land Board v Mpofu and Another[2005] 1 BLR 3, CAMadisa v
Maswabi[2007] 2 BLR 313Magwaza Family and Another v Kweneng Land Board and Others[2002] 1 BLR 254L &
B Holdings (Pvt) Ltd v Mashonaland Rent Appeal Board and Others1959 (3) SA 466 (SR)Patson and Others v
Botswana National Front and Others[2004] 2 BLR 478SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel
Tabernacle1955 (3) SA 541 (N)Seiso v The State[2008] 1 BLR 364, CASesana and Others v The
Attorney-General[2002] 1 BLR 452Southern District Council v Vlug and Another[2010] 3 BLR 315Telcordia
Technologies Inc v Telkom SA Ltd2007 (3) SA 266 (SCA)Titty's Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
and Others1974 (4) SA 362 (T)Tshetlo Distributors (Py) Ltd v Botswana Breweries (Pty) Ltd and Another[2001] 2 BLR
183APPLICATION for the review of an arbitration award. The facts are sufficiently stated in the judgment.S T Pilane(with
himML MogobeandDM Ndlovu) for the applicant.J Carr-Hartleyfor the second respondent.2012 (2) BLR
p519MAKHWADE J
Judgement
MAKHWADE J:By notice of motion the applicant launched proceedings seeking the following relief:'1. Reviewing and
setting aside the Arbitral Award published by the first respondent in favour of the second respondent on the 26th day
ofSeptember 2008.2. Substituting therefor an Award in favour of the applicant in the terms sought by the latter in its
Claims placed before the first respondent in the Arbitration.4. Granting costs of suit as against the second respondent,
jointly and severally with the first respondent only if the latter should also oppose'.The first respondent did not file any
papers. The second respondent opposes the relief sought by the applicant.The applicant filed a founding affidavit and a
confirmatory affidavit with the notice of motion. Subsequently a supplementary affidavit was filed on behalf of the
applicant. The second respondent filed an answering affidavit together withconfirmatory affidavits. A replying affidavit
and confirmatory affidavits were then filed on behalf of the applicant.As it appears from prayer No. 1 above, this
application for review is a sequel to an arbitration that was conducted before the first respondent. The applicant was the
complainant: and the second respondent was the respondent in the arbitration. The outcome of the arbitration was a
dismissal of all the applicant'sclaims and an award in favour of the second respondent on the counterclaim.According to
the papers before this court the application is brought in accordance with Order 61 of the Rules of the High Court (Cap
04:02)(Sub Leg) and this court derives jurisdiction to adjudicate over the matter from s 13 of the Arbitration Act (Cap
06:01). No issue arises out of the application of Order 61 of the Rules of the High Court and s 13 of the Arbitration
Act.The first issue that was raised by the second respondent and which has been pursued is that of the locus standi of
the applicant and the jurisdiction of the court over the first and second respondents.In order to fully appreciate the issue
raised it is worth quoting from the founding affidavit. Paragraphs 1 to 5.3 of the founding affidavit read as follows:'THE
PARTIES11.1 I am an adult male, currently employed by Complant Botswana (Proprietary) Limited in the capacity of
Branch Manager, Botswana operation. My addresses are, for purposes of this matter, those of the Attorney of Record
for the Applicant.2.2.1 I make this Affidavit on behalf of the Applicant filed herewith. The matters herein stated are within
my own personal knowledge, save where the context indicates to the contrary, and are, to the best of my knowledge and
belief, both true and correct.3.3.1 The first respondent is the Arbitrator appointed by agreement of the2012 (2) BLR
p520MAKHWADE Japplicant and second respondent ("the parties"), in terms of Clause 40.6of the Principal Building
Agreement concluded by the said parties. His addresses are those set out in the notice of Motion, in support whereof I
swear this affidavit.4.4.1 The second respondent is the employer and the other party to the Arbitration. Its addresses
are, for purposes hereof, those of its Attorneysof Record.5.5.1 The applicant shall, in this affidavit and that of Mr Keith
Noble be referred to either as the "Applicant" or the "Contractor", the latter consistently with the descriptions employed
by the Arbitrator in the documents.5.2 The first respondent shall be referred to as the "Arbitrator".5.3 The second
respondent shall he referred to as the "Employer" again consistently with the usage adopted by the Arbitrator'.The
supplementary affidavit did not add anything to the description of the parties.The answering affidavit took issue with the
applicant's papers. It is best captured from the affidavit filed on behalf of the second respondent at paragraphs 7 and 8
thereof: They are reproduced hereunder:'7. Second Respondent is advised by its attorneys of record, which information
the Second Respondent verily believes to be true, thatApplicant's application is fatally flawed by reason of the fact that
the Applicant has not set out the basis and grounds on which it contends that:7.1 the Applicant has locus standi, and7.2
the court had jurisdiction over the First and Second Respondents.8. Second Respondent is advised by its attorneys of
record, whichinformation Second Respondent verily believes to be true, that the failure of the Applicant to set out the
basis upon it which it contends it has locus standi and the basis on which it is contended that this Honourable court has
jurisdiction over the Respondents is mandatory and not just a formality, and the failure of the applicant to set out the
basis and grounds on which it claims locus standi and on which it aversthat this Honourable court has jurisdiction in the
matter renders the matter liable to be dismissed'.The reply on behalf of the applicant was contained in the replying
affidavit at paragraph 7. It is reproduced:'7. In further amplification, I aver that:7.1 both the Applicant and the Second
Respondent are Botswana registered companies which conduct their business in Botswana;7.2 the contract the subject
of the dispute between the Applicant and the Second Respondent ("the parties") was concluded, was wholly performed
and the dispute arising therefrom occurred within the Republic of Botswana.2012 (2) BLR p521MAKHWADE J7.3 the
arbitration from which the Award the subject of this review application arose was conducted wholly within the Republic of
Botswana in accordance with a clause in the said contract contained, and in accordance with the laws of the Republic of
Botswana.7.4 This review Motion is brought in terms of Order 61 of the Rules of this court, and on the authority of s 13
of the Arbitration Act, Cap 06:01 ofthe laws of the Republic of Botswana.7.5 The locus standi of the Applicant to bring
this Motion, and the jurisdiction of this Court to entertain it has never been in doubt, and there is no fathomable reason
why it should be'.The applicant relied on several cases decided in this jurisdiction dealing withthe issue of locus standi.
These are the cases ofChintala v Mater Spei College[2003] 2 BLR 348 andJoina and Associates v Modikwa[1999] 1
BLR 475, CA. The two cases dealt with rescission of judgments where the proceedings had been commenced by way of
summons as opposed to notice of motion. The declarations in both matters did not contain sufficient averments to show
that the party in question had locus standi. In both cases reference was made withapproval to a dictum in the South
African case ofSA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle1955 (3) SA 541 (N) at p
543 C-D where Caney J stated as follows:'I consider it necessary for the plaintiff to make in his declaration the
averments required, not only to show that he has locus standi but also that thedefendant has'.Directly to the point at
issue in this matter is the case ofBasiami Building Construction (Pty) Ltd v Tembo and Others(Misca 291/99),
unreported. In that matter, just like in the current matter the proceedings were by notice of motion. The difference is that
this matter is by way of Order 61 whereas theBasiamiBuilding Constructionmatter was brought by ordinary motion. In my
view the difference is not material. In that case the judge stated as follows:'It is not just a customary formality for the
deponent to a Founding Affidavit to identify himself or itself as well as identifying the Respondents before moving on to
deal with the cause of action. A court cannot and should notgrant an order, however meritorious, unless it knows in
whose favour and against whom it is being granted. The first enquiry, always, is the locus standi in the judicio of the
litigants'.In addition the above cited cases reference can also be made to the following cases on the point:Kalahari
Ranches (Pty) Ltd v Botswana Network of AIDS and ServiceOrganisation[2007] 1 BLR 646;Magwaza Family and
Another v Kweneng Land Board and Others[2002] 1 BLR 254;Patson and Others v Botswana National Front and
Others[2004] 2 BLR 478and Tshetlo Distributors (Pty) Ltd v Botswana Breweries (Pty) Ltd and Another[2001] 2 BLR
183.Paragraph 7 of the replying affidavit has been reproduced at paragraph 9 above. It contains part of the material that
should have been in the founding affidavit. Order 6 of the Rules of the High Court prescribes what an originating2012 (2)
BLR p522MAKHWADE Jprocess should contain. The same information that is required in the summons isrequired in
motion proceedings. The purpose is to disclose among other things locus standi and jurisdiction of the court.The
practice of the courts is to strike out matters from the replying affidavit which should have been contained in the founding
affidavit. In motion proceedings the applicant stands or falls on the founding affidavit.SeeMadisa v Maswabi[2007] 2 BLR
313;Titty's Bar and Bottle Store (Pty)Ltd v ABC Garage (Pty) Ltd and Others1974 (4) SA 362 (T) and Van Winsen et
alHerbstein and Van Winsen: The Civil Practice of the Supreme Court of South Africa(4th ed Juta & Co Ltd Cape
Town 1997) pp 365-366.The applicant should have been aware that para 7 of the replying affidavit captured material
which was essential for the purpose of both locus standi and jurisdiction. In my view the approach adopted by the
applicant is not differentfrom the one adopted in the case ofSesana and Others v The Attorney-General[2002] 1 BLR
452. The only difference is that unlike in the Sesana case the applicant used a replying affidavit to try and achieve the
same purpose. In that case, Dibotelo J, had the following to say at pp 460-461:'I have noted that at the commencement
of the hearing, on 10 April 2002, noapplication was made by the applicants to substitute the re-sworn affidavits for the
original founding affidavits, instead the court was told that the respondent had to begin as he had raised pointsin
limineand that the applicant would then reply and the proceedings proceeded in that order.It has been submitted on
behalf of the applicants, that the objections to thefounding affidavits have been cured by the filing of the properly
re-attested founding and supplementary affidavits. What the applicants have done is that they have, without leave of the
court and in total disregard of the rules of this court, purported to rectify the defects in the founding affidavits after the
respondent had raised pointsin liminealleging that the applicants' founding affidavits were fatally defective, and even in
purporting to do so, they did nottender wasted costs that would arise from adopting such a line of action. The filing of
re-sworn or re-attested founding and supplementary affidavits after the respondent had filed answering affidavits is, in
my view highly prejudicial to the respondent who is not permitted by the rules to file further affidavits once the answering
affidavit has been filed. It is a well established general principle that a party who chooses to approach the court by way
of applicationproceedings must stand or fall by his founding affidavit as originally filed unless excused by the court.In my
view, no one party has the authority or is permitted to rewrite the rules of the court, and the applicants cannot disregard
the rules of court and then attempt to persuade the court to condone their conduct. It is unacceptable that the court
should be presented with a fait accompli by the applicants andfor the court to be expected to fold its arms on those
circumstances; it is the duty of the court to ensure that the rules are complied with by all parties who institute
proceedings before it. In my view, the re-sworn affidavits which have been filed without leave of the court cannot be
allowed to stand and must be expunged from the record. In fact, both counsel have conceded and 1 agree with that
concession that is our system of civil practice, the concept of what2012 (2) BLR p523MAKHWADE Jhas been referred
to as re-sworn affidavits filed at a contesting party's own volition without leave of the court is unknown'.In this case para
7 of the replying affidavit was presented as a fait accompli. No attempt was made by the applicant to apply to the court
to rectify a defect in the founding affidavit. I find the argument by the applicant that proceedingsunder Order 61 of the
Rules of the High Court and s 13 of the Arbitration Act do not require the locus standi of the parties to be alleged is
clearly without merit. Any party appearing before our court must allege facts that indicate the locus standi of the parties.
The same applies to jurisdiction. These matters cannot be presumed.The argument that the applicant and the
respondents are companies is alsowithout merit on the issue of jurisdiction. Our courts do not have jurisdiction over all
companies and in all circumstances. That is why Order 6 rule 4 provides for details such details of incorporation,
principal place of business and registered office.The fact that there was arbitration similarly does not clothe our courts
with jurisdiction. The fact that s 13 provides for the intervention of the courts doesnot mean that in all cases where there
was arbitration that arbitration is subject to our courts. It is for the applicant to allege facts that demonstrate the
jurisdiction of the court.It is my considered view that para 7 of the replying affidavit should be struck out. With the striking
out of the paragraph the second respondent's preliminarypoints must succeed. The application stands to he dismissed
on that point alone.The preliminary point was argued together with all the issues relevant to this matter. For the sake of
completeness and in case I am held to be wrong on the preliminary points I shall deal with the other issues.This matter
was presented to court as a review. The procedure outlined in Order 61 of the Rules of the High Court was adopted.
None of the parties hasindicated that the procedure was wrong.Order 61 procedure provides for a record of proceedings
to be dispatched to the Registrar. This being an arbitration the expectation is that the arbitrator would be the one to
dispatch the record to the Registrar of the High Court. It is common cause that the arbitrator has not filed any documents
nor participated in these proceedings.The notice of motion was filed on 10 December 2008. The second respondent filed
a notice of opposition on 6 February 2009. On 26 June 2009 the attorney for the second respondent appeared before
court and indicated that there was a problem in procuring the record. On 14 August 2009 an order was made for the
second respondent to provide the court with audio recordings and transcripts of the arbitration proceedings. The same
was to be furnished on or before 14October 2009. Further directions were made on 30 October 2009. It was not until
January 2011 that a transcript of the record was made available. It is common cause that the transcript was done under
the instructions and supervision of the second respondent's attorneys. There is nothing to suggest that the arbitrator had
any involvement in its preparation.The transcript of the audio recordings furnished by the second respondent runs into
2077 pages. The parties also filed annexures to their affidavits which2012 (2) BLR p524MAKHWADE Jformed part of
the documents submitted at the arbitration, including thestatements of claim and defence as well as the counterclaim.In
the supplementary affidavit the position adopted by the applicant is that the transcript of the audio recording is so bad
that it is of no value. It is also the applicant's position that the record cannot be sufficiently constructed because previous
attempts at preparing the record yielded no positive results.The position of the second respondent is that while the
transcript is notperfect, it is certainly usable. It is averred that other than the transcript of the first of 55 tapes of ninety
minutes each the rest of the tapes were without any difficulties. It is also the second respondent's position that the
record may not be word perfect but it is adequate for the purpose of the review.Having read the essential averments in
this review and having perused portions of the transcripts I am of the view that the transcripts are usable for thepurpose
of the current proceedings.It was the applicant's position that the arbitrator was enjoined in terms of para 7 of the
Schedule to the Arbitration Act to record and keep a record of oral evidence of witnesses. It was further submitted that
no one else was expected to keep the record. It was the applicant's further submission that any record produced other
than by the arbitrator would not be an official and reliablerecord. It was also contended on behalf of applicant that the
record produced was not certified by the arbitrator.There is no doubt that it is the duty of the arbitrator to ensure that the
oral testimony of the witnesses is recorded either by the arbitrator or at the direction of the arbitrator. Paragraph 7 of the
Schedule to the Arbitration Act provides as much. When the arbitrator did not produce the record of oral testimonythe
second respondent offered to have the audio tapes transcribed to enable the review to be heard. The orders made in
court were at the instance of the parties. No reservation was made that the audio tapes were not the record of oral
testimony caused to be recorded at the arbitration or that the same would be inadequate or that other recordings were
done by or at the instance of the arbitrator. In my view it cannot be said that the audio tapes and the transcriptsdo not
constitute the record of proceedings as contemplated in the Schedule to the Act.The fact that the record was not
certified by the arbitrator in my view does not detract from the fact that it is a record of the proceedings. It is obviously
ideal that the arbitrator should have checked the record for accuracy. Where the parties are able to check the record for
accuracy whether or not the arbitratorhas done so, the parties are at liberty to do so and to point out any errors in the
record. In my view the fact that the arbitrator has not certified it does not detract from it being a record of
proceeding.Whether or not a record is reliable and adequate will depend on what is at issue. The mere fact that a record
is not perfect does not translate to the record being unusable. In the case ofSeiso v The State[2008] 1 BLR 364, CA the
courtheld that the absence of a page of the record of a case did not prejudice the appellant. The page apparently
comprised a portion of the cross examination of a prosecution witness.The applicant made reference to portions of the
transcript, more particularly from tape 1 and argued that the same is unintelligible. While the same is not perfect, one
can certainly understand the evidence. Obviously to have an2012 (2) BLR p525MAKHWADE Junderstanding of the
record one must have an understanding of the issues at the arbitration. For the purpose of the current review I am
unable to agree that the record is not reliable. I therefore hold that the record furnished is sufficient for the purpose of the
review.I shall now deal with the merits of the review. The applicant in the founding affidavit states that the court derives
authority to adjudicate on the matter froms 13 (2) of the Arbitration Act. Section 13 (2) of the Act provides as follows:'(2)
Where an arbitrator or umpire has misconducted the proceedings, or an arbitration or award has been improperly
procured, the Court may set the award aside, and may award costs against any such arbitrator or umpire
personally'.Paragraphs 12 to 18 of the founding affidavit contains what the applicant terms heads of complaint. Before
the title heads of complaints is a title 'Grounds of Review'. A reading of the founding affidavit suggests that the matters
complained of are grounds of review. The paragraphs are reproduced:'12. The Arbitrator failed to apply his mind to the
dispute and/or,13. He misconceived the whole nature of the enquiry, and /or,14. He committed gross irregularities, and
/or,15. He abdicated his functions, and/or,16. His award goes against the weight of the evidence, and/or,17. He made
findings without evidence. Alternatively, he made key findingswhich are grossly incorrect, unfair and unreasonable,
and/or,18. He ignored relevant evidence, almost invariably unjustifiably preferring the version of the Employer, which
manifested bias and partiality.'In the submissions on behalf of the applicant, it is stated that the applicant's position is
that the Arbitrator misconducted the proceedings.The applicant proceeded to discuss gross irregularity. Reference was
made toseveral paragraphs in the following cases;Champion Construction (Pty) Ltd v Allen and Another[2006] 2 BLR
56;L & B Holdings (Pvt) Ltd v Mashonaland Rent Appeal Board and Others1959 (3) SA 466 (SR);Dickenson &
Brown v Fisher's Executors1915 AD 166;Telcordia Technologies Inc v Telkom SA Ltd2007 (3) SA 266 (SCA);Goldflelds
Investment Ltd v City Council ofJohannesburg1938 TPD 551 andEllis v Dessai1909 TPD 576.In his submissions
counsel for the second respondent submitted that the grounds on which an arbitral award can be set aside are
extremely limited. He submitted that they are limited to those stated in s 13 (2) of the Arbitration Act namely, where the
arbitrator has misconducted the proceedings or where an award was improperly procured. It was further submitted that
by agreeing toarbitration, the parties limit interference by the court to the grounds set out in s 13 (2) of the Arbitration
Act. By so doing any other grounds for review are no longer available Reliance was placed on the remarks of Harms JA,
inTelcordia Technologies Inc v Telkom SA Ltd(supra) at p 292A where he stated:'Last, by agreeing to arbitration the
parties limit interference by courts to the ground of procedural irregularities set out in s 33 (1) of the Act. By necessary
implication they waive the right to rely on any further ground of review,2012 (2) BLR p526MAKHWADE J"common law"
or otherwise. If they wish to extend the grounds, they may doso by agreement but then they have to agree on an appeal
panel because they cannot by agreement impose jurisdiction on the court'.I agree with the position taken by the
respondent in this matter. Gross irregularity is not a ground for review of an arbitral award in our law. We cannot import
into our Law a provision that is not there. That is the function of thelegislature. What our courts must do is to apply the
law, regardless of what our neighbours do. Cases dealing with gross irregularity have no application in our law.Our
courts have recently dealt with the law dealing with review of arbitral awards. The case ofChampion Construction (Pty)
Ltd v Allen and Another(supra) must be read in its proper context. The matter dealt with an arbitralaward. The applicant
approached the court as if it was dealing with a review under common law. The judge first dealt with the law dealing with
grounds for review under common law. One of them was that of gross irregularity. The judge then stated at p
61:'Although this application was brought in terms of Order 61 of the Rulesof the High Court I am of the view that this
was an error on the part of the applicant. The decision that is sought to be reviewed is an arbitral award made in terms
of the Arbitration Act (Cap 06:01). I must therefore consider what the applicant's chances under that Act are'.From p 61
to p 65 the judge addressed review of arbitral awards in the contextof the Arbitration Act. He referred to South African
and Zimbabwe cases. He also noted the difference in wording of legislation. He focused on the meaning to be ascribed
to the word misconduct. He concluded as follows at p 65:'Thus a party seeking to set aside an arbitral award could
succeed only if able to establish either misconduct on the part of the arbitrator or the factthat the award was improperly
procured. The word "misconduct" was to be understood in the sense of some wrongful, dishonest or improper conduct;
abona fidemistake whether of law or of fact on the part of the arbitrator could not be relied upon as a ground for setting
aside the award'.The same conclusion as reached by Phumaphi J was reached in the following cases before our
courts:Southern District Council v Vlug and Another[2010] 3 BLR 315 andChina Jiangsu International Botswana (Pty)
Ltd v Vlug and Another(Misca 50/10), unreported.In theSouthern District Councilcase, the judge reviewed the law on the
subject in approving the legal position exposed inChampion Construction(supra) stated as follows at p 326B:'Having
given careful consideration to the relevant legislation and case authorities, this court has not been persuaded by the
argument, advanced on behalf of the client, that this court should not followChampion(supra), in applying Solomon JA's
interpretation of "misconduct" of s 13(2) of the Act. I am, accordingly, of the view that, to satisfy the provisions of that
subsection,2012 (2) BLR p527MAKHWADE Jthe client is required to show the arbitrator's conduct of the proceedings to
have been wrongful, dishonest or improper, and that test will be the same, whether the issue for determination is
whether an arbitrator, "misconducted the proceedings", or "misconducted himself" in relation to his duties as an
arbitrator'.I am in total agreement with the legal position as stated in the local decisions referred to above.I find the
following reasons by Solomon JA inDickenson & Brown(supra) at p 176 to be instructive in approaching reviews
where misconduct of proceedings is at issue.'Now if the word misconduct is to be construed in its ordinary sense it
seems to me impossible to hold that abona fidemistake either of law or of fact made by an arbitrator can be
characterised as misconduct, any more than that a Judge can be said to have misconducted himself if he has given as
erroneous decision on a point of law ... . Cases may no doubt arise where, as was said by the late CHIEF JUSTICE in
the case ofLandeshut v Koeing(20 S.C.R.at p. 34), "the mistake is so gross or manifest that it could not have been made
without some degree of misconduct or partiality on the part of the arbitrator". But in such cases the mistake would
merely be evidence to show that there had been misconduct and if an award were set aside in such circumstances it
would be really on the ground of misconduct and not of mistake. It may be also that an arbitrator has been guilty of the
grossest carelessness and thatin consequence he had come to a wrong conclusion on a question of fact or of law, and
in such a case I am not prepared to say that a Court might not properly find that there has been misconduct on his part.
But in ordinary circumstances where an arbitrator has given fair consideration to the matter which has been submitted to
him for decision, I think it would be impossible to hold that he had been guilty of misconduct merely because he had
made abona fide mistake either of law or of fact'.It is also worth emphasising that there is a vast distinction between a
review and an appeal. The fact that the review court might have come to a different conclusion on a particular issue is
not indicative of misconduct. There is nothing unusual about an appeal court or a review court coming to a
differentconclusion from a trial court. It is also not unusual for a panel of judges to come to different conclusions on the
same issue. It is not even unusual for the highest court to acknowledge that it had erred in an earlier occasion and
reverse its own decision. SeeKweneng Land Board v Mpofu and Another[2005] 1 BLR 3, CA. The following comment by
Harms JA inTelcordia(supra) at p 302 on a different but closely related context are relevant when dealing with review
ofarbitral awards:'The power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the
applicable law, rightly or wrongly; and to determine what evidence was admissible, rightly or wrongly. Errors of the kind
mentioned have nothing to do with him exceeding his powers; they are errors committed within the scope of his
mandate. To illustrate, an arbitrator in a "normal'' local arbitration has to apply South African law but if he errs in2012 (2)
BLR p528MAKHWADE Jhis understanding or application of local law the parties have to live with it,if such an error
amounted to a transgression of his powers it would mean that all errors of law are reviewable, which is absurd'.I shall
now deal with the allegations made in the context of the applicable legal position. I have already stated the 'heads of
complaints' above.In the heads of argument and at the hearing the submissions made on behalfof the applicant were
directed at showing that the arbitrator was wrong in the conclusions that he reached. It was also argued that he made
mistakes so gross that 'he could not have made them without some degree of misconduct or partiality.' Reference was
made to some of the issues in the arbitration and the manner in which the arbitrator dealt with them. I shall deal with
some of the issues raised. One should bear in mind that the fact that this court may havecome to a different conclusion
or approached the matter in a different way does not necessarily amount to misconducting the proceedings in terms of
the law.It was argued on behalf of the applicant that the award was irrational and is as a result of the arbitrator failing to
apply his mind to the case and to give a fair consideration to the matter which was placed before him.In the reasons for
the award the arbitrator clearly considered all the claimssubmitted to arbitration. He also considered the defences put
forth by the second respondent. He made reference to the evidence and gave reasons for his conclusions.One of the
issues taken by the applicant was that the arbitrator departed from his initial perceptions when he conducted on site
inspections for no good reason. As early as 23 March 2007 at the second preliminary site meeting thefollowing was
recorded:'Status of Arbitrator's Preliminary ObservationsIn such a condition the preliminary observations of the arbitrator
are for the benefit of the parties and are only interim facilitation standing as the full and detailed particulars are not
available to the arbitrator for final consideration andevaluation.'This position was restated at various subsequent
meetings. The parties proceed to a full blown arbitration. At the conclusion of the arbitration, the award was made. In my
view the fact that the views expressed by the arbitrator at the ADR level were not confirmed is not an indication of
misconduct of proceedings.A reading of the award shows that the arbitrator premised his findings on his understanding
of the contract between the parties. The referral to arbitration was based on the contract. It was the arbitrator's
understanding that his decision must be consistent with the contract. The arbitrator had no mandate to create a contract
for the parties. He fully appreciated that. If in the process he misinterpreted the contract that does not per se amount to
misconduct. That maybe a bona fide error that could be made in adjudication. It is not a basis upon which the award can
be set aside.There are several major findings that the arbitrator reached.Several of the claims were premised on the
issue of extension of time. This was also significant to the main counterclaim by the second respondent. The arbitrator
came to the conclusion that the applicant failed to comply with cl 29 of2012 (2) BLR p529MAKHWADE Jthe contract.
According to his interpretation the claims predicated on extension of time failed for that reason.The other criticism that
was made of the arbitrator was that he was in error in refusing to admit in evidence at the point of re-examination of the
applicants' witness of the critical path programme. The applicant at the hearing explained the importance of the
programme. A reading of the record of proceedingsalso indicates that it was indeed important. It is also clear that the
document should have formed part of the statement of claim and it did not form part of it. The arbitrator is heavily
criticised for ruling that the document should not be admitted at that late stage. The question can also be asked as to
why the same was not part of the applicant's documents. If it was an error of judgment on the part of the applicant not to
include it, why can it not be a bona fide error by thearbitrator to refuse its late admission. Is perfection required of the
arbitrator and gross negligence allowed on the part of the applicant. This, not being, on appeal, the court is not required
to decide whether or not the arbitrator was wrong on this point. The court however is of the clear opinion that even if the
arbitrator could be held to have erred in that regard, such an error is a bona fide error in the conduct of the arbitration
and it cannot be a basis to conclude that there was biasand therefore misconduct. Again based on the interpretation of
the contract that no application for extension was made, the result would have been the same.The arbitrator addressed
each and every claim and came to specific conclusions. One thing that came out clearly was that on some issues the
applicant simply refused to comply with the instructions of the principal agent. The arbitrator came to the conclusion that
contractually the applicant wasbound to follow the instructions of the principal agent. This was based on the arbitrator's
interpretation of the contract. This court is not required to determine whether or not the arbitrator was correct. What this
court is required to do is to make a determination based on the material placed before it whether the arbitrator
misconducted the proceedings. It is my considered view that even if the arbitrator was wrong in his conclusions on this
matter this is a conclusionthat could be reached on a bona fide interpretation of the contract. It is not an indication of
deliberate bias.Many of the claims required the arbitrator to express opinions with no particular benefits. They covered
money which was deducted and subsequently released to the claimant. Two main conclusions were reached by the
arbitrator on such claims. It is that at the time of deductions there was a legitimate reasonfor the same and that by the
time the matter went to arbitration the deduction had been released and therefore no relief was claimed. In my view the
rejection of this claims is not an indication of bias as alleged by the applicant.Some of the deductions made by the
second respondent were held to be legitimate and the applicant's claims were rejected. Reasons were given for such
rejections. While this court may not necessarily agree with some of them,this not being an appeal, it would not affect the
result. I do not find any of the conclusions to amount to misconduct of proceedings. At the most this would amount to an
error of judgment. The arbitrator, like a court of law has room for error which does not amount to misconduct.It was
further argued on behalf of the applicant that the arbitrator misconstrued the nature of the enquiry. From a reading of the
record this is not apparent. He dearly indicated the issues before him and gave reasons for his conclusions.2012 (2)
BLR p530KETLOGETSWE JIt was also alleged that the failure to provide a record of proceedings by thearbitrator and to
file any papers is indicative of misconduct. In the light of the material before this court, the conclusion sought by the
applicant cannot be made. There is no material that is missing for a proper consideration of the application for review.
The arbitrator is not a party to the proceedings in the strict sense. He is akin to a judicial officer.The arbitrator found for
the respondent on the counterclaim. It was theapplicant's position that no evidence was led in proof of the counterclaim.
It was submitted that the approach adopted by the arbitrator was that a failure of the applicant's claim automatically
translated to a success of the counterclaim.The subject matter was that of construction. Evidence was given by experts
in the field who expressed different views. The arbitrator was also a professional in the construction and building
industry. The arbitrator was furnished with variousdocuments and had to come to a conclusion on the totality of the
material before him, including viva voce evidence. As earlier stated, the fact that the court may have come to a different
conclusion on some of the issues does not amount to misconduct of proceedings. Any errors that the arbitrator may
have committed in my view are not such as would amount to misconduct of proceedings. At the most there would be
bona fide errors which cannot be corrected at a review interms of the Arbitration Act.The upshot is that the review
cannot succeed. It is dismissed with costs.Review dismissed with costs.2012 (2) BLR p530