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[2006] ZAGPHC 74
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Yunnan Engineering CC and Another v Chater and Others (38051/05) [2006] ZAGPHC 74; 2006 (5) SA 571 (T) (2 August 2006)
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(TRANSVAAL PROVINCIAL DIVISION)
Case number: 38051/2005
Date: 2/8/2006
REPORTABLEIn the mater between: YUNNAN ENGINEERING CC First Applicant S ZHAO Second Applicant
And
G B CHATER AND SIX OTHERS
First to Seventh Respondents
MAVUNDLA, J.
[1] This matter came before me on the 9 June 2006 and I reserved judgment. I therefore proceed to deliver my judgment. [2] The applicants seek a declaratory order in terms of which it is ordered that: 2.1. Any right of appeal which the First, Second and Third Respondents may have had against the award made by Spoelstra, J. in the arbitration between the parties on 22 June 2005 has lapsed; 2.2. The aforesaid award be made an order of Court in the following terms. 2.2.1. From the time the shares in the City Lake Marina (Pty) Ltd were transferred to respectively Yunnan Construction Engineering CC (60% shares) and Charter Developments (Pty) Ltd (40% shares ) they became the beneficial owners of the shares registered in their respective names and remained to hold the shares in that capacity until Chater Development (Pty) Ltd was provisionally liquidated;
2.2.2.
The parties involved in the above issues bear their
own costs;
2.3.
That any party opposing this application is ordered to ay the costs
thereof;
2.4. Further and/or alternative relief.
FACTUAL BACKGROUND
[3] On or about 17 September 2004 First Respondent, Second Respondent and Erf (Pty) Bromhof (Pty) Ltd obtained an order from this Court interdicting the sale of certain shares in the Seventh Respondent. During December 2004 Fourth Respondent also launched an urgent application to this Court to interdict the transfer of certain shares by the First Applicant to the Firth Respondent. The parties involved then agreed to submit their dispute to arbitration. Such agreement was made an order of Court under case number 32519/04.One of the terms of the agreement was that “The arbitration proceedings will be governed by the Arbitration Act, and guided by the Rules of the Arbitration Federation of South Africa, a copy of which is attached hereto as Annexure ‘A’.”Subsequent thereto various parties showed interest in joining the arbitration proceedings, such as MYT Eco-Technology Investment NCC and Anderson Family Trust. The arbitration proceedings were held before retired Judge Spoelstra during 19 to 25 May 2005 and argument was only presented by and on behalf of the following parties;
3.1.
Messrs Rip S.C and Erasmus appeared for Applicants and Seventh
Respondent herein.
3.2.
Mr. Maritz S.C. appeared for the First and Third Respondent herein
(Chater Development s (Pty) Ltd was also cited as a claimant in
their statement of claim);
3.3. Adv Liversage appeared for the Fourth Respondent. 3.4. Mr. David Kahn appeared for the Fifth and Sixth Respondents [4] Although they were referred to in the heading of the award, the Second Respondent herein, Erf 35 Bromhof CC, MTY Eco- Technology Investments CC and Anderson Family Trust did not file statements of claim and consequently were not involved in the arbitration. [5] On the 26 June 2005 Mr. Justice Spoelstra made his award which has been marked and attached to the founding affidavit as annexure B. [6] On the 28 June 2005 Attorneys Melamed & Hurwitz noted an appeal against the award on behalf of the First, Second and Third Respondents. The applicants contend that there was no lis between the Applicants and the Second Respondent during the arbitration proceedings. [7] On or about 9 November 2005, (about four months later) Melamed & Hurwitz Inc. delivered briefs to Adv JW Louw SC, Adv Smalberger SC and Adv LJ Van der Merwe SC to act in an appeal panel.
CONTENTION BY AND OR ON BEHALF OF THE APPLICANTS
[8] Mr. Luderem who appeared for the applicants, has submitted that what I need to determine is whether the AFSA Rules are applicable in casu and if so whether the notice of appeal of the Third Respondent was filed out of time and if so whether the appeal has not lapsed. The applicants contend that:
8.1.
The second respondent did not take part in the arbitration
proceedings, had no lis with the applicants and was consequently
not affected by the award; and therefore he could not lodge an
appeal.
8.2. The appeal of the third respondent was no filed timeously; 8.3. At the time when the notice of appeal was delivered, attorneys Melamed & Hurwitz Inc were not authorized by the third respondent to act on his behalf. [9] The notice of appeal which was filed on behalf of the fifth respondent (Gary Brian Chater, (The first respondent herein), sixth respondent Chater Technologies CC (the second respondent herein) and the ninth respondent (M.A Marais N.O. third respondent herein) is dated the 28 June 2005. There was no power of attorney filed with this notice of appeal. A power of attorney dated the 19 August 2005 signed by the third respondent herein was file, and it is attached in the papers herein as annexure GC9. [10] It is common cause that on or about the 9 November 2005 (some four months later) Melamed & Hurwitz Inc delivered briefs to Adv. J.w. Louw S.C., Adv H.W. Smalberger S.C. and Adv. J.L. Vander Merwe S.C. to act as arbitrators in an appeal panel. These relevant briefs are attached to the papers as annexure ‘A’ ‘B’ and ‘C’. [11] The applicant in his founding affidavit states under the heading:
“Reason Why Any Purported Appeal Has Lapsed” the following;
11.1.
The Second Respondent did not take part in the arbitration
proceedings, had no lis with the Applicant and was
consequently not affected by the award;
11.2. The appeal of the Third Respondent was not filed timeously. At the time when the Notuce of appeal was delivered Messrs Melamed & Hurwitz Inc were not authorised by the Third Responent to act on his behalf; 11.3. The notice of Appeal was not delivered to other interested parties. 11.4. In his founding affidavit in support of an application in terms of Section 311 of the Companies Act (Annexure “H” hereto), First Respondent indicated in paragraph 13.2 thereto that “Mr. Marais (Third respondent in this application) instructed by me has appealed the award”. It appears that First Respondent in his personal capacity has not lodged an appeal either.
[12]
The applicants further state that although the parties opted not to arrange
through the Secretariat referred to in the AFSA Rule 22.4, the proceedings
are still governed by AFSA’s Rules in terms of the agreement between the
parties. They further state that mutatis mutandi it can mean nothing else
than that the party prosecuting the appeal must pay the provisional costs
thereof within 10 (ten) days after delivery of the Notice of Appeal, or at
worst within reasonable time. Four months is not a reasonable time in
view of the dispute between the parties. Further the First, Second and the
Third Respondents have not taken steps to pay the costs that are
attendant to the prosecuting of the appeal, which costs include the cost of
preparing the record of proceedings, reserving a venue and making
provision for the fees of the proposed appeal panel by paying such
amount agreed upon by all the parties. They further state that there is
purpose for the Applicants to partake in an appeal where they run a grave
risk of being liable for fees of the panel without Respondents providing the
necessary security or finding itself in a position where the appeal cannot
be concluded due to lack of funds. They further aver that the Respondents
are merely frustrating Applicants in giving effect to the award. They
conclude by saying that any purported appeal against the award has
lapsed and there exists no reason why the award ought not be made in
terms of Section 31 of the Act.
[13] On the other hand it is contended on behalf of the respondents by Mr. Ludiritz that I must first establish what are the AFSA Rules and that I am called upon to make a finding as to whether the appeal has lapsed. If I find that the appeal has lapsed, then I must make the award an order of the Court. He further contends that since there are two versions I must approach the matter on the bases of the principles stated in the Plascon Paint Evans case. He says that the parties have deviated from the guidelines provided by the AFSA Rules and that therefore I must have regard to the extent to which they have deviated and their general conduct and I must find that the appeal has not lapsed. He further contends that the appeal has not lapsed. He further contends that the Court must exercise its discretion in favour of the respondents and find that the appeal has been lodged within a reasonable time and that it has not lapsed. H points out that even if it were to be found that the ASFSA Rules apply, which is disputed, rule 22.8 thereof provide that the powers of the appeal arbitrators shall be the same as if it were a civil appeal to the Appellate Division of the Supreme Court of Appeal of South Africa. He says that Rule 11 of the Rules of the Suprem Court of Appeal expressly empower the court to extend or reduce any time period prescribed in the rules and to condone non-compliance with the rules. He further contends that the attorney who lodged the appeal, he had a mandate and that the power of attorney that was filed at a later stage has effectively ratified the lodging of the appeal and that therefore the appeal has not lapsed. He further contends that the question of condonation is a matter that will be dealt with by the appeal panel. He contends further that the applicants had agreed and acquiest in the procedure that the parties followed in the selection and appointed of he appeal tribunal and the furnishing of the briefs to hem and waived any right which they may have had to contend that the appeal was not properly noted that the application should be dismissed with cost on a punitive scale of attorney and client. [14] It is common cause that: 14.1. First Respondent admits that Second Respondent did not file a statement of claim in the arbitration proceedings and has no lis in the arbitration proceedings with the first applicant. 14.2. The second Applicant also did not deliver a statement of claim and accordingly has no lis in the arbitration proceedings with either the First or the second respondent and he was therefore not affected by the award. 14.3. The parties agreed that: (a) The arbitration proceedings will be governed by the Arbitration Act; and (b) Guided by the Rules of the Arbitration of South Africa, (AFSA). [15] I need to point out that whereas the agreement which was made an order of the court stated that a copy of the AFSA Rules was being attached as Annexure “A”, in fact there was no such copy attached. There is no explanation provided by any of the parties why the copy was not attached. However, since the Rules of AFSA are documents well known in the legal fraternity, the Court can take judicial notice of such. Indeed the parties have to a great extent conducted the arbitration proceedings in line with the said rules, albeit the fact that they did not do so to the letter of those Rules. [16] The partier specifically stated that the arbitration will be governed by the Arbitration Act. However, when it came to the applicable rules they decided to use the word “guided by”. It requires no authority to concluded that the Arbitration Act is the authority to which the conduct of the arbitration has been subjected to. An obligation has been placed upon the parties to subject their will under the Arbitration Act. In the Shorter Oxford English Dictionary On Historical Principles, Fifth edition Volume1 A-M, the word ‘govern ’is stated to mean: 1.
“Rule with authority, conduct the policy, actions, and affairs of (a
State, subjects), Constitutionally or despotically; regulate the
proceedings of (a corporation etc); be in military command of ( a
fort, town) Direct and control, have under protective guardianship.”
2.
Control, influence, regulate or determine”
3.
Hold sway; have or be the predominating or decisive influence,
4.
Constitute a law, rule standard or principle for , serve to decide”
From the above it is clear, as I have already indicate herein above, that the word “governed” subjects the agreement to
the authority of the Arbitration Act.
[17] On the other hand the word “guide” in the South African Concise Oxford Dictionary under verb is described as meaning: “show or indicate the way to’ .
In my view there is no such peremptory overtones as in the word
govern. Had the parties wanted the Rules of AFSA to be peremptory, then
they would have used the same word “govern” as they did with regard to
the Arbitration Act. This, however, does not mean that these Rules can be
unilaterally ignored by one of the parties. These Rules are a guide.
Where there has got to be a departure from such AFSA Rules such
departure must be consensual, otherwise it would be nonsensical for the
parties to agree on a guide which will be departed from as and when any
of the parties wishes to, and as and when it suits him. In as much as the
Rules are a guide, they cannot be ignored unilaterally, and the one who
does, do so at his own peril. Where there has been non-compliance with
the said ‘guide’ being the AFSA Rules, and such non-compliance is not
consensual the approach to be adopted is to look at the extent of non
compliance, in other words how far has the other party strayed away from
the rules and whether such departure is reasonable. The principles that
apply to matters of this nature, the non-compliance with the rules, as
decided in the litany of relevant cases in our Courts, will be applicable.
However, a departure from the guide must not be unreasonable. The
question of reasonableness has to be determined in the context of the
Rules of the High Court, since the Arbitration Act makes reference to the
“court” to mean any court of a provincial or local division of the Supreme
Court of South Africa having jurisdiction. The question of reasonableness
will then have to come to play. The presiding officer before whom the
issues are to be tried will have to look at the extent at which there has
been non-compliance, the prejudice that is likely to be suffered by the
complaining party, the cause of such non-compliance and the aspect of
fairness and equity to all the parties, the prospects of success in its
defence or its claim as the case may be Vide Grant v Plumbers (Pty) Ltd
1949 (2) SA 470.
[18] It is not denied by the respondent that there has been no strict adherence to the Rules of AFSA. The respondents states at paginated page 103 that “the procedure for the arbitration was agreed upon. Significantly the procedure is materially at variance with the procedure as stipulated in AFSA Rules” In its replying affidavit at paginated page 189, paragraph 3 the Second Applicant says that the parties agreed to refer to AFSA Rules where they did not agree on particular procedure. At paragraph 4 he says that if the parties agree on a particular procedure at variance with the AFSA Rules, it is implied that the parties would not follow the AFSA Rules in respect of the agreed procedure. I can find nothing wrong with this proposition since the parties would have agreed to depart from the AFSA rules to the extent that they would have specifically agreed upon. [19] It is not in dispute that there was no strict adherence to the AFSA rules. However the parties have agreed to be guided by these rules. The implication of this is that in so far as the taking of certain steps are concerned, the execution of such steps must be guided by the AFSA Rules. A party cannot simple decide not to take any steps within the time frames provided for in the AFSA Rules or decide to takes such steps at his own selected time without having agreed with the other party. Where there has been non compliance with the time frames provided by the AFSA Rules, such non compliance will not render such non compliance necessarily fatal. However, the non compliant party cannot stray too far from the guide. In other words the party who has not complied with the guide, where the point of non compliance is taken, he must show that the departure from the guide is not unreasonable and that it is not deliberate and that he has a good prospect of success in so far as he wants an indulgence. He must also show that the other party will suffer no prejudice were the indulgence to be granted. In this regard see the case of Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 at 476 etc. [20] In this matter the applicant has attached annexure C, which is a copy of ‘Article 22: Appeals” of AFSA. Article 22.2 provides that a notice of appeal shall be delivered by the appellant within 7 calendar days of the publication of the award, failing which the interim award or final award shall not be appealable. [21] Article 22.4 provide as follows: 21.4.1. Upon delivery of a notice of appeal, the Secretariat shall obtain from the arbitrator or the chairman of arbitrators, as the case may be, an estimate of the
time which will reasonably be required for the appeal
tribunal to study the record, hear the appeal and the cross-appeal, if any, make an award thereon. 21.4.2.
[23]
Rule 22.8 of the AFSA Rules provide that:
“ The nature of the appeal and cross-appeal, and the powers of the arbitrator or arbitrators shall, save to the extent that the written agreement between the parties or article 22 provides otherwise,
be the same as if it were a civil appeal to the Appellate Division of the Supreme Court of South Africa.”
[24] Rule 11 of the Supreme Court of Appeal Rules provide the Chief Justice or the Court with he power to grant condonation on application for the non-compliance with the Rules. In the Supreme Court practice at C1-14 [Service 24, 2005] it is stated that; In the High Court, “good cause” is required by subrules 49(1) and 49(6)(b) (the former subrule deals with extension of the period within which application for leave to appeal must be made, the latter with the re- instatement of an appeal or cross-appeal which has lapsed). The omission of any such requirement from this subrule seems to have been deliberate. This does not, of course mean that the court will grant condonation or extension of time in capricious fashion. The general principles governing extension of time and the granting or refusing of condonation remain applicable.” They further refer to the matter of Moch v Nedtravel (Pty) Ltd t/a Express Travel Service 1996 (3) SA 1 (A) where the Court held that “although the Supreme Court of Appeal has inherent power to regulate its own process, that ‘does not extend to the assumption of jurisdiction not conferred upon it by statute.’ [25] In the background of the above I must determine whether the appeal has lapsed. The award was granted by retired Spoelstra J on the 26 June 2005. On the 28 June 2005 Attorneys Melamed & Hurwitz noted an appeal against the award on behalf of the First, Second and Third Respondents. This means that the appeal has been lodged in time. By so saying I am in no way deciding the validity or otherwise of the noting of the appeal as such. The provisions of Article 22 regulate the further conduct of the parties in prosecuting the appeal. In this regard, article 22.7, which is peremptory prescribe that the appeal shall lapse if the parties do not pay timeously the fees as required by article 22.4.2. In terms of paragraph 2.5 of the agreement the parties reached, these cost will be paid by the appealing party. It is common cause that there has been no payment of these fees. On the bases of this, only, it then means that the appeal has lapsed. [26] It is also common cause that the respondents have only after four months of the granting of the award given briefs to the advocates who would comprise the appeal panel. This was only done on the 9 November 2005. It is also a fact that there is no application for condonation filed by the respondents. Where a party who has not complied with the Rules seeks the indulgence of the Court, he must satisfy the court that there was no inordinate delay on his part, there was no wilful default on his part, vide Promedia Drukkers & Uitgawers (Edms) Bpk 1996 (4)SA 411 at 420A; Neuman (Pvt) Ltd v Marks 1960 (2) SA 173A; Saloojee & Another v Minister of Community Development 1965 (2) SA 135.
Although it was submitted by Mr. Ludiritz that the question of
condonation is a matter that will be determined by the appeal panel, I am
of the view that it is an aspect that I need to have regard to, in deciding
whether the appeal has lapsed and whether there are good prospects that
were the panel of appeal to be seized with the issue of condonation, will
it exercise its discretion in favour of the respondent, and that therefore I
should allow this matter to continue to the arbitration appeal tribunal. In
the absence of cogent reasons advanced at this stage why there has been
such disregard of the AFSA Rules, or departure from such rules, that are
by agreement meant to guide the parties, I am left with no alternative but
to conclude that the prospects of the respondents succeeding in that
regard are non-existent. It is also a fact that the question of prejudice to
the applicants has not been addressed by the respondents. A party cannot
simply move at a tortoise speed simply because it suits it. The other party
who has obtained an award in its favour is entitled to have the matter
brought to finality as speedily as possible. I am of the view that the appeal
has lapsed and that there are no prospects that even if the matter were to
come before the appeal tribunal, there are prospect that the appeal
tribunal will exercise its discretion in favour of the respondents.
[27]
This then brings me to the principle of the Plascon-Evans Paint Ltd v
Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (AD) case where it was
said:
“...where in proceedings on notice of motion disputes of fact have
arisen on the affidavits,
a final order, whether it be an interdict or
some other form of relief, may be granted if those facts averred in
the applicant’s affidavit which have been admitted by the
respondent, together with facts
alleged by the respondent, justify
such an order. The power of the Court to give such a final relief on
the papers before it is, however, not confined to such a situation. In
certain instances the denial by the respondent of a fact alleged by
the applicant may not be such as to raise a real, genuine or bona
fide dispute of fact (see in this regard Room hire Co (Pty) Ltd v
Jeppe Street Mansions (Pty)Ltd 1949 (3)SA 1155 (T) at 1163-5
Da Mata v Otto NO 1972 (3)SA 858 (A) at 882 D-H). If in such a
case the respondent has not availed himself of his right to apply for
the deponents concerned to be called for cross-examination under
Rule 6(5)(g) of the Uniform Rules of Court (cf Petersen v
Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire case (supra)
at 1164) and the Court is satisfied as to the inherent credibility of
the applicant’s factual averment, it may proceed on the bases of the
correctness thereof and include this
fact among those upon which it
determines whether the applicant is entitled to the final relief” which
he seeks (see eg Rikhoto v East Rand Administration Board
and Another 1983 (4) SA 278 (W) at 283E-H). Moreover, there
may be exceptions to this general rule, as, for example, where the
allegations or denials of the respondent are so far- fetched or
clearly untenable
that that the Court is justified in rejecting them
merely on the papers (see the remarks of Botha AJA in the
Associated South African Bakeries case, supra at 924A).”
I am of the view that in casu, there are no genuine disputes of fact
that warrant the matter to be referred to oral evidence. I am of the
view that the facts averred in the applicant’s affidavit which have
been admitted by the respondent, together with facts alleged by the
respondent, justify
that I grant the relief sought by the applicant.
AD POWER OF ATTORNEY
[28]
It is necessary to look at what the High Court Rules provide with regard tothe question of power of attorney in respect of noting of an appeal. Rule 7 provides that “the power of attorney to act need not be filed, but the authority of anyone acting on behalf of a party may, within 10 days after
it has come to the notice of a party that such person is so acting, or with the leave of the court on good cause shown at any time
before judgment, be disputed, whereafter such person may no longer act unless he satisfied the court that he is authorised so to
act , and to enable him to do so the court may postpone the hearing of action or application.” In the matter of Administrator Transvaal v Mponyane 1990 (4) SA 407 it was held that there was nothing in Rule 7 of the Uniform Rules of the Court that required the authorisation of an attorney to be
embodied in a document styled a power of attorney and that proof of the authority of the respondent’s attorney was therefore
not dependant on the production of a written power of attorney.
[29]
In Solomon v Allie 1965 (4) SA 755 where the appeal was noted without
a power of attorney in the magistrate court, on appeal it was said at 756 B
that:
“The necessity for a respondent to a power of attorney to
oppose the appeal is as peremptory… as the requirement in
respect of the appellant. But there is this distinction that the
respondent, who has failed to file a power of attorney, has no
locus standi here to oppose.”
[30]
In the matter of Rajah v Pillay 19 66 (2) SA 222 it was held that the
purpose of subrule (3) was fulfilled once the power of attorney is filed
before argument of the appeal. In the matter of Nampak Product Ltd t/a
Napak Flexible Packaging v Sweetcor (Pty)
Ltd 1981 (4) SA 919 (T) it
was stated that where the authority of the person who signed the power of
attorney is defective, appropriate steps may be taken to ratify the defective
power of attorney and it is therefore not necessary for the Court to
investigate the proceedings prior to the ratification nor does it mean that
the proceedings prior to the ratification were defective.
[31] In casu the Notice of Appeal was filed without it being accompanied with a power of attorney. On the strength of the above authorities, I am of the view that it was not necessary that a power of attorney should have been filed at the time of the noting of the appeal. Once the power of attorney was challenged, and subsequently filed, the authority of the noting of the appeal was then regularised. Therefore nothing much turns around this point. This applies in respect of the notice of appeal filed on behalf of the First and the Third Respondents. The question of the Second Respondents is, however, different. [32] It is trite that an appeal can only be noted by the party who is involved in the lis. In so far as the Second Respondent is concerned, it is not disputed that that it did not take part in the arbitration proceedings. Consequently the Second Respondent was not affected by the award and therefore it cannot appeal. I therefore find that in so far as its purported appeal is concerned, such appeal is a nullity. [33] It is contended on behalf of the Respondents that the applicants have acquiesced to the non compliance with the rules of AFSA and that they have waived any right which they may have had to contend that the appeal was not properly lodged and has lapsed, and that they have therefore lost their rights to contend that the appeal has lapsed. I do not agree with this contention. In this regard the respondents have referred me to the matters of Segal &Another v Segal 1992 (3) SA 136 (C) and Rigby Engineering v Rockboring & Drilling (Pty) Ltd 1981 (1) SA 328 (O). [34] I have taken note of the Rigby Engineering matter. I can do no better than having to refer to the matter of the Road Accident Fund v Mothupi v 2000 (4) (SA)38 (SCA) at 49F-50G and point out that the Court held, inter alia ,that “Waiver is first and foremost a matter of intention. Whether it is the waiver of a right or remedy, a privilege or power, an interest or benefit, and whether in unilateral or bilateral form,…… [35] The respondent has attached various letters that were exchanged between the respective parties’ legal representatives. Some of the letters deal with the questions of proof of briefs having been given to the three arbitrators on appeal panel, as he puts it in paragraph 8.2.12 at paginated 116, “ in order that Mr. Van Eeteveld might himself instruct counsel to act in the appeal on behalf of his clients.” This letter is GC15 dated the 15 November2005. On the 14 November 2005 Mr Eetveld addressed a letter Mr. Melamed in which he contended that the appeal has lapsed. In the said letter it is further stated that “Your client is more or less 4 months out of time and our client has instructed us to proceed with an application to certify the arbitration award as an order of Court” The respondent have further attached a letter from Van De Merwe Du Toit attorneys , which letter is dated 29 August 2005 and marked GC8, which states in paragraph 2 thereof that “We confirm that we have received a Power of Attorney authorising you to act on behalf of the Liquidator. In so far as the appeal in respect of the Liquidator was lodged out of time according to the AFSA rules our client’s rights are strictly reserved.” I can find of no clearer outside manifestation of the applicant’s intention not to relinquish its right to take the point of the appeal having lapsed. I am of the view that there is no merit in the submission that the applicants have waived this right. [36] Having regard to the totality of what I have already state herein above, I am of the view that the applicants are entitled to the order that they seek. The only remaining issue is the question of cost. It is trite that the costs follow the event. There is no reason to depart from this principle.
[37]
In the premises it is hereby ordered :
1.
That it is declared that any right of appeal which the
First, Second and or the Third Respondents may have had
against the award made by retied Spoelstra J in the
arbitration between the parties on 22 June 2005 has lapsed;
2. That the said award is hereby made an order of the Court in the following terms: 2.1. That from the time the shares in the City Lake Marina (Pty) Ltd were transferred to respectively Yunnan Construction Engineering CC (60 % shares) and Chater Developements (Pty) Ltd (40% shares) they became the beneficial owners of the shares registered in their respective names and remain the shares in that capacity until Chater Developemnts (Pty) Ltd was provisionally liquidated. 2.2. The parties involved in the above issues bear their own costs.
3.
The First Respondent, Second Respondent and the Third
Respondent , jointly and severally the one paying absolving
the others, are ordered to pay the cost of this application.
N.M. MAVUNDLA
JUDGE OF THE HIGH COURT
HEARD ON THE: 09/06/2006
DATE OF JUDGMENT: 09/06/06 APPICANT`S ATT: C VAN EETVELDT APPLICANT`S ADV: JHA SAUNDERS DEFENDANT`S ATT:J MEMAMED DEFENDANT`S ADV:K W LUDERITZ |