Latest / Spartan Caselaw Podcast / 24 June 2026 – Arbitration review

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24 June 2026 – Arbitration review · Spartan Caselaw Podcast

• 0:00
  [SPEAKER_00]: Welcome to the case law podcast on Wednesday 24th of June.
• 0:05
  [SPEAKER_00]: arbitration, interesting one here, Feta Gomo to butse municipality versus Kip Consulting Engineers.
• 0:13
  [SPEAKER_00]: So Feta Gomo, municipality appointed Kip Consulting in 2018, pursuant to tender processes.
• 0:20
  [SPEAKER_00]: Now this is engineering services for two road projects.
• 0:25
  [SPEAKER_00]: Unfortunately, the relationship to theory
• 0:30
  [SPEAKER_00]: and KIP preferred the dispute to arbitration under the FSA, and the parties agreed to conduct the proceedings under the FSA rules for expedited arbitration.
• 0:40
  [SPEAKER_00]: Now, during the arbitration, KIP amended its statement of claim to include additional claims for provisional fees.
• 0:48
  [SPEAKER_00]: Now, the arbitrator directed the municipality to file an amended defense within stipulated timeframes.
• 0:54
  [SPEAKER_00]: Seems this arbitrator was rather strict, and warned that failure would result in exclusion from the proceedings, is that drastic or is it fair?
• 1:02
  [SPEAKER_00]: The municipality failed to comply and the arbitrator ruled that the municipality had four footed its right to participate, and a final award was awarded against the municipality.
• 1:14
  [SPEAKER_00]: Now the municipality approaches the high court for review under the section 331B of the arbitration act and the court considers the nature of gross irregularity which is required because courts don't really like to interfere in arbitration awards unless there has been a gross irregularity emphasizing that it concerns the method of proceedings rather than the outcome.
• 1:38
  [SPEAKER_00]: Now, it arises where a party is denied a fair hearing.
• 1:42
  [SPEAKER_00]: It recognises that parties are entitled to determine their own arbitration procedures, including adopting the F. Sir rules, but such autonomy is subject to public policy and constitutional standards.
• 1:53
  [SPEAKER_00]: Now while the rules permitted the arbitrator to impose sanctions for uncompliance, they had to be applied in a manner consistent with fairness and proportionality.
• 2:03
  [SPEAKER_00]: Now the municipalities say that exclusion from the entire arbitration was disproportionate and consistent with the agreed separate issues.
• 2:12
  [SPEAKER_00]: So the court held that the arbitrator committed a gross irregularity by imposing an automatic total and permanent expulsion of the municipality from all aspects of the arbitration including its counterclam, without undertaking a proportionality assessment.
• 2:28
  [SPEAKER_00]: The sanction was disproportionate to the procedural default and failed to consider less drastic alternatives.
• 2:34
  [SPEAKER_00]: The arbitrator
• 2:37
  [SPEAKER_00]: By treating the municipality's failure to file an amended defense, as extinguishing its right to participate in unrelated, separated issues.
• 2:46
  [SPEAKER_00]: The reliance on the Afso rules could not override the constitutional right to fear hearing, and an interpretation permitting total exclusion without assessing fairness was contrary to public policy.
• 2:58
  [SPEAKER_00]: So the arbitrator's method of decision making was fundamentally flawed, resulting in the municipality being denied a fear hearing.
• 3:05
  [SPEAKER_00]: The arbitrator's ruling and final award are reviewed and set aside.
• 3:09
  [SPEAKER_00]: And the municipalities' exclusion from the arbitration said aside, so the matter is remitted to officer for the termination before a different arbitrator.
• 3:19
  [SPEAKER_00]: Now from the SCA, City of Johannesburg versus Bentham, its eviction and spoliation, all of a sudden internet and locus stand-eye.
• 3:28
  [SPEAKER_00]: Now the City of Johannesburg appealed against a high court order, which had granted relief to Bentham and a group of alleged unlawful occupiers of municipal land.
• 3:37
  [SPEAKER_00]: Now, we're getting quite a few cases lately about occupation and demolishment and eviction on municipal land.
• 3:45
  [SPEAKER_00]: Now, Bentham claimed to act on behalf of a community that took occupation of the property in September 23, due to socio-economic hardship and alleged prior promise of housing.
• 3:56
  [SPEAKER_00]: He alleged repeated unlawful demolitions of their dwellings by the city without court orders supported by photographs and limited conformatory effort David.
• 4:07
  [SPEAKER_00]: Now, in the high court, Bantam and their occupiers sought relief based on the mandament von Spolier, in an internet preventing eviction without a court order, alleging dispossession.
• 4:17
  [SPEAKER_00]: Now, a key point was that the second respondents were cited as owl and lawful occupiers without proper identification.
• 4:24
  [SPEAKER_00]: Now, despite these disputes, the high court clients had relived, declared the evictions and lawful, ordered restoration of occupation, and interdicted future evictions.
• 4:38
  [SPEAKER_00]: Now, the issue here, the SCA, concerned whether the respondents had indeed established local stand-eye and possession sufficient for slowly age relief.
• 4:47
  [SPEAKER_00]: The high court relied on conformatory affidavits and a power of attorney to identify occupiers, and accepted that they were in possession, the SCA, however, emphasized that the owners rested on applicants to establish their identity occupation and entitlement to relief.
• 5:02
  [SPEAKER_00]: particularly in disputes involving widespread land invasions.
• 5:07
  [SPEAKER_00]: It criticized the evidentiary deficiencies in bathrooms case including vague allegations in consistent list of occupiers, unauthenticated photos and defective confirmatory affidavits.
• 5:18
  [SPEAKER_00]: According to Hells that their respondents had actually failed to establish who they were, their relationship to the property, although they were in position and had been unlawfully dispossessed.
• 5:27
  [SPEAKER_00]: The reliance on vague hearsay, conformatory affidavits, and in consistent evidence did not discharge the owners of proof.
• 5:34
  [SPEAKER_00]: The High Court earned by attempting to cure these defects by compiling its own list of occupiers and granting relief to an unverified group without giving
• 5:45
  [SPEAKER_00]: The proper approach required dismissal of the application, so the appeal is upheld, the order of the high court is set aside and substituted with the application is dismissed.
• 5:56
  [SPEAKER_00]: Now also from the S.E.A.
• 5:58
  [SPEAKER_00]: that very interesting case of the former president of the Zambia and a burial at the Lungu versus the government of Zambia.
• 6:05
  [SPEAKER_00]: It's a bad judge for appeal,
• 6:07
  [SPEAKER_00]: Now, the appeal concerns a barrel dispute following the death of the former Xambian President Mr. Lungu in South Africa.
• 6:14
  [SPEAKER_00]: This is back in 2025.
• 6:15
  [SPEAKER_00]: We have family led by Esther Lungu.
• 6:18
  [SPEAKER_00]: Opposed the Xambian government's claim to repatriate his remains for a state funeral in Xambia, the family relied on the deceased expressed wishes that the current Xambian President should not participate in his funeral.
• 6:31
  [SPEAKER_00]: So while the Xambian government sought to accord him a state burial in Xambia,
• 6:36
  [SPEAKER_00]: The dispute arose after unsuccessful negotiations between the parties, following his death.
• 6:41
  [SPEAKER_00]: The Zambian government brought urgent proceedings in the High Court seeking authority to repatriate the body, which the High Court granted leading to this appeal.
• 6:50
  [SPEAKER_00]: Now the inquiry focused on whether a conflict of laws arose, whether the Zambian government established any rights to override the family.
• 6:58
  [SPEAKER_00]: It's an interesting conflict here, because he was a family man and also he was the former president.
• 7:04
  [SPEAKER_00]: It was accepted that South African law governs, both because the parties were within South Africa and because no expert evidence was accused to prove Xambian law.
• 7:13
  [SPEAKER_00]: Now, the Xambian government's reliance on its own attorney general's opinion was insufficient.
• 7:17
  [SPEAKER_00]: The dispute was thus resolved under South African constitutional and common law principles.
• 7:22
  [SPEAKER_00]: The common law recognises that burial decisions based on the next of kin and this alliance with the constitutional right to dignity and privacy and family autonomy.
• 7:32
  [SPEAKER_00]: However, this ambient government invoked public interest and who boon to arguing that national interests should prevail, but the distinction between private family disputes and state interference was decisive.
• 7:46
  [SPEAKER_00]: So the state's reliance on President concerning community interest and foreign custom failed.
• 7:51
  [SPEAKER_00]: The Zambian government in the end failed to establish any legal rights to control the burial, the benefits act that relied on afforded no such right and there was no admissible evidence proving Zambian law or custom granting the state authority.
• 8:05
  [SPEAKER_00]: The common law and constitutional framework vested in the decision in the family, whose rights to dignity on autonomy required protection against state interference, rightly so.
• 8:16
  [SPEAKER_00]: the deceased washer, particularly his objection to the involvement of the president, who were accepted on the evidence, and aligned with the family's position.
• 8:24
  [SPEAKER_00]: The riots on Ubuntu did not overjustify, overriding these rights and constitutional values, supported respecting the wishes of the deceased.
• 8:34
  [SPEAKER_00]: The appeal is upheld, including the cost of to cancel in the order of the High Court, said aside, and replaced with an order
• 8:43
  [SPEAKER_00]: So then, have a look at this one.
• 8:45
  [SPEAKER_00]: Interesting one.
• 8:45
  [SPEAKER_00]: Solidarity on behalf of Benjamin versus the Department of Correctional Services, Employment Equity Plan.
• 8:52
  [SPEAKER_00]: Now, this has been a bone of contention, whether your equity numbers apply nationally or just only provincially, because
• 8:58
  [SPEAKER_00]: For example, in the Western Cape, there's certain groups which are more represented than in other areas and it's always differences between provinces.
• 9:07
  [SPEAKER_00]: So would that be fair to impose national equity targets on a certain province?
• 9:12
  [SPEAKER_00]: Now solidarity acting on behalf of Miss Benjamin, sought to review an arbitration award.
• 9:17
  [SPEAKER_00]: Benjamin had applied for promotion.
• 9:20
  [SPEAKER_00]: and she was strongly recommended for appointment by the selection panel on the basis of merit and experience or wish we would have merit and experience in our government.
• 9:30
  [SPEAKER_00]: However, the delegated authority refused to appoint her, stating that all recommended candidates were not aligned with the employment equity targets and that the post to be re-advertised.
• 9:41
  [SPEAKER_00]: Benjamin contended that she acted in the post was a best candidate and that the regional
• 9:50
  [SPEAKER_00]: The post was later discontinued now, the matter came before the labor court as a review of the arbitrator's decision which had dismissed Benjamin's unfair labor practice.
• 10:00
  [SPEAKER_00]: The arbitrator accepted that the department's defense that had applied its employment equity plan focusing on national targets which indicated overrepresentation of colored females.
• 10:11
  [SPEAKER_00]: So the court applied the case law.
• 10:14
  [SPEAKER_00]: And some of these required fairness and rational implementation of affirmative action measures without rigid reliance on numerical targets.
• 10:23
  [SPEAKER_00]: The evidence showed that Benjamin met all the requirements, was strongly recommended and the regional equity data reflected underrepresentation of her group.
• 10:32
  [SPEAKER_00]: So you can't really paint the whole country with the same brush, I mean this is why we have different provinces.
• 10:38
  [SPEAKER_00]: The apartment relied on national numerical targets which were disputed and not supported backlier evidence.
• 10:45
  [SPEAKER_00]: The delegated authority who made the decision did not testify.
• 10:48
  [SPEAKER_00]: So the court held that the arbitrator's conclusion was unreasonable and untenable.
• 10:53
  [SPEAKER_00]: Benjamin established a prima-farky case of unfair labor practice by showing that she was the best candidate and that the panel of the HR supervisors supported her appointment.
• 11:02
  [SPEAKER_00]: The department failed to show that the delegated authority properly considered these factors, or balanced equity targets with merit.
• 11:11
  [SPEAKER_00]: The evidence suggested an overreliance on numerical targets, without assessing whether a suitable candidates from underrepresented groups existed.
• 11:19
  [SPEAKER_00]: This rendered the decision irrational capricious and unfair.
• 11:23
  [SPEAKER_00]: The court found that the arbitrator should have concluded that the Department committed an unfair labor practice.
• 11:28
  [SPEAKER_00]: The subsequent abolition of the post was irrelevant to the assessment of fairness.
• 11:33
  [SPEAKER_00]: So the arbitration award is set aside and substituted with an award that the Department committed an unfair labor practice by failing to promote Benjamin.
• 11:41
  [SPEAKER_00]: And it's ordered to pay the regiment compensation equivalent to 12 months from uneration.
• 11:46
  [SPEAKER_00]: Very nice when they're.
• 11:49
  [SPEAKER_00]: And now from our concord, it's fascinating case.
• 11:52
  [SPEAKER_00]: Like tax is not often interesting, but this one's really interesting on the definitions.
• 11:56
  [SPEAKER_00]: It's all about gold refining and that.
• 11:59
  [SPEAKER_00]: It's the way even metals versus the commission of SARS.
• 12:02
  [SPEAKER_00]: So, the way even is a vat vendor engaged in the trading and refining of gold.
• 12:06
  [SPEAKER_00]: including secondhand or recycled gold.
• 12:09
  [SPEAKER_00]: Now that's where it all went wrong.
• 12:11
  [SPEAKER_00]: It acquired scrap gold.
• 12:13
  [SPEAKER_00]: Can they be such a thing?
• 12:14
  [SPEAKER_00]: Refined it through ran refinery into gold bars, of at least 99.5% purity and supplied these bars to Epsobank, a prescribed purchase under that act.
• 12:26
  [SPEAKER_00]: Now, for years, Louis haven't treated these suppliers as zero rate had allowing it to deduct input that.
• 12:31
  [SPEAKER_00]: I wonder what Absor does with these bars.
• 12:33
  [SPEAKER_00]: Now, following an audit, the commissioner determined that the gold had previously undergone manufacturing processes, and therefore did not qualify for zero rating, so it's like not a raw material.
• 12:45
  [SPEAKER_00]: The dispute concerned whether recycled gold, refined and supplied in prescribed form, qualified for zero rating,
• 12:55
  [SPEAKER_00]: Now, release them and sort the Clarity Relief and permitting zero-a-racing of refined gold, supplied and prescribed form, irrespective of prior manufacturing processes.
• 13:05
  [SPEAKER_00]: I mean, doesn't really matter where the gold comes from once you melt it down, while it does matter to SARS.
• 13:11
  [SPEAKER_00]: Now, it continued that the second shouldn't require only that the gold be supplied to
• 13:18
  [SPEAKER_00]: and that prior processes were irrelevant once the gold was refined.
• 13:23
  [SPEAKER_00]: So, it's also posed this, arguing that the section excludes gold that is undergone any prior manufacturing process other than refining or manufacture into prescribed forms.
• 13:32
  [SPEAKER_00]: So, it doesn't have to come straight from the gold mine.
• 13:35
  [SPEAKER_00]: So, the court considered the proper interpretation of the section, of course, that famous case, Natal Joint Municipal Pension Fund versus Indibany Municipality, we should all know that section of by-hot.
• 13:47
  [SPEAKER_00]: requiring a unitary analysis of text.
• 13:51
  [SPEAKER_00]: Now, do we even argue that the provision focus on the final state of the gold at the refinery in a redicates prior forms, rendering a recycled gold eligible for zero racing?
• 14:02
  [SPEAKER_00]: It also relied on the broader VAT scheme.
• 14:04
  [SPEAKER_00]: Now, Siles contended that the provision imposes a third requirement.
• 14:08
  [SPEAKER_00]: The gold must not have undergone disqualifying prior manufacturing processes.
• 14:13
  [SPEAKER_00]: So the core exam on the statutory language and held that section 111 if it poses three cumulative requirements.
• 14:22
  [SPEAKER_00]: The supplier must be to a prescribed purchaser.
• 14:24
  [SPEAKER_00]: The gold must be in the prescribed form.
• 14:27
  [SPEAKER_00]: And the gold must not have undergone any manufacturing process other than refinering or manufacture into prescribed forms.
• 14:34
  [SPEAKER_00]: Now the third requirement excludes gold that is previously been
• 14:40
  [SPEAKER_00]: Refining does not erase the historical fact of prior manufacturing, so Louis Evans interpretation would render the exclusionary phrase superfluous and was inconsistent with the text.
• 14:50
  [SPEAKER_00]: I think this is outcome is going to have an absolutely massive financial impact on them.
• 14:55
  [SPEAKER_00]: The contextual and purposeive considerations did not displace the tier textual meaning.
• 15:01
  [SPEAKER_00]: Codingly, recycled, or secondhand gold, does not qualify for zero rate, now they can't go any higher.
• 15:07
  [SPEAKER_00]: This is the apex court, our constitutional court talking about that and gold, seeing as it's now the apex court.
• 15:15
  [SPEAKER_00]: So the high court's interpretation was correct, and New Haven's arguments were rejected, unfortunately.
• 15:21
  [SPEAKER_00]: Now all 14 cases today in the today's update are so interesting, have a look at an investing bank versus Georgia, it's an unsolvency.
• 15:29
  [SPEAKER_00]: And in this publication, the sequestration of the respondents's state, the console aptly described the case during his argument at the hearing as one with a morass of information.
• 15:41
  [SPEAKER_00]: This assessment is correct the judge notes, who matters characterised by the substantial and complex body of information.
• 15:48
  [SPEAKER_00]: The respondent described himself as a well-known businessman who controls a vast empire property asset worth billions of rent.
• 15:57
  [SPEAKER_00]: However, he's up for sequestration now.
• 16:00
  [SPEAKER_00]: The matter therefore does not concern an unsophisticated litigant and familiar with complex commercial transactions.
• 16:07
  [SPEAKER_00]: The respondent was represented throughout by a highly experienced legal team.
• 16:11
  [SPEAKER_00]: The litigation was extensive.
• 16:14
  [SPEAKER_00]: Oral argument lasted about seven days for full-in-fair opportunity granted to the Respondent to make his case.
• 16:21
  [SPEAKER_00]: The Respondent raised various defenses, and Judge Oppomir and tackles them in this lengthy and interesting judgment.
• 16:27
  [SPEAKER_00]: The judge finds that the applicant has established a liquidated claim, primafarky and solvency, and advantage to creditors.
• 16:34
  [SPEAKER_00]: The Respondent has failed to raise in the end after this really serious battle.
• 16:40
  [SPEAKER_00]: Any bona fide air reasonable defense in the circumstances a provisional sequestration order is warranted Now we've had some practitioners being crowned upon by the courts in recent cases and I have a look at Vuzzo Muzzi versus Department of Correctional Services
• 16:57
  [SPEAKER_00]: Here the judge was concerned with the handling of the court file which was removed from the court building of the art permission.
• 17:03
  [SPEAKER_00]: The applicant's legal representative stated that he was very busy during the week in question and this regard lists several matters for which he was responsible and which on the role during the week in question.
• 17:16
  [SPEAKER_00]: This explanation can be disposed of easily.
• 17:18
  [SPEAKER_00]: The courts have long since held that it is no excuse for a practitioner to contend that he is too busy to afford a matter for which he is responsible, the care and diligence it deserves.
• 17:29
  [SPEAKER_00]: Now the second component of the explanation found an expression in an attempt by the applicant's legal representative to shift the blame onto his assistants, including the candidate attorney.
• 17:40
  [SPEAKER_00]: That's really not nice to throw your CA under the bus.
• 17:44
  [SPEAKER_00]: Now again, this explanation is not acceptable.
• 17:47
  [SPEAKER_00]: If the applicant's legal representative was in charge of the file, while she has entitled to delegate certain functions to subordinates and staff underneath him, he cannot delegate his professional responsibility.
• 17:58
  [SPEAKER_00]: What was required was for the applicant's legal representative to properly supervise the persons in his office.
• 18:04
  [SPEAKER_00]: to whom he had delegated tasks, an exercise professional oversight.
• 18:08
  [SPEAKER_00]: The shifting of blame onto underlings is ordinarily regarded as an aggravating factor.
• 18:14
  [SPEAKER_00]: And what follows for this attorney is that costs all day, day, bonus, properties.
• 18:19
  [SPEAKER_00]: And we'll see you tomorrow for more case law.