REPUBLIC OF NAMIBIA SPECIAL INTEREST HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT Case No: HC-MD-CIV-MOT-GEN-2020/00147 In the matter between: NAMIBIA ROAD PRODUCT AND SERVICES (PTY) LTD APPLICANT and THE ROADS AUTHORITY OF NAMIBIA 1ST RESPONDENT SCHALK BURGER 2ND RESPONDENT Neutral citation: Namibia Road Products and Services (Pty) Ltd v The Roads Authority of Namibia (HC-MD-CIV-MOT-GEN-2020/00147) [2021] NAHCMD 485 (21 October 2021) Coram: PARKER AJ Heard: 14 & 20 April, 24 June, and 30 August 2021 Delivered: 21 October 2021 Flynote: Arbitration – The award – Review of –Grounds in cases falling within s 33 (1) of the Arbitration Act 42 of 1965 – Grounds upon which court will set aside award very narrow. Held, the word ‘misconduct’ not extending to bona fide mistake by arbitrator as to fact or law. 2 Held, gross irregularity in the conduct of the arbitration must be an irregularity so serious that it resulted in the aggrieved party not having his or her case fully and fairly determined. Held, an arbitrator exceeds his or her powers if he or she arrogates to himself or herself powers to which he or she has no right in terms of the arbitration agreement or the Arbitration Act 42 of 1965. Held, an arbitration award has been improperly obtained as a result of some dishonest or morally reprehensible conduct on the part of a party to the arbitration or that party’s witness, because, for instance, they placed before the arbitration tribunal false evidence that is material and it influenced the arbitration tribunal in its decision. Held, award of a dispute adjudication board (DAB) in terms of the arbitration agreement binding but not final where a Notice of Dissatisfaction of the award has been issued by any party; and the DAB award must be complied with even if disputes were referred to arbitration. Summary: Contractor applicant entered into contract for works with first defendant employer – Contract based on the Fédération Internationale des Ingénieurs Conseils (FIDIC) as modified by the Particular Conditions of Contract – Disputes between parties referred first to a dispute adjudicating board (DAB) for adjudication in terms of the arbitration agreement – Parties issued Notices of Dissatisfaction with award – Disputes thereafter referred to arbitration – In founding affidavit applicant relying on statements and conclusions thereanent in attempt to establish that arbitrator guilty of all the stipulated prohibited acts prescribed by s 33 (1) of the Arbitration Act 42 of 1965 – Court finding that applicant failed to prove arbitrator guilty of the charges in terms of s 33 (1) of the Act – Consequently, court dismissing applicant’s prayer to review and set aside the arbitration award – Court enforcing the DAB monetary award. ___________________________________________________________________ ORDER ___________________________________________________________________ 1. The application is dismissed to the following extent: (a) The relief that the final award of the arbitrator published on 9 March 2020 be set aside is refused. 3 (b) The relief that first respondent pay the costs of the arbitration proceedings is refused. (c) The relief that first respondent pay applicant N$ 17 232 584,75 (made up of the amounts in paras 3.1, 3.2 and 3.3 of the notice of motion) is refused. (d) The relief that ‘the remaining issues….’ be referred to a new arbitration tribunal is refused. 2. The application succeeds to the following extent: First respondent shall pay to applicant N$ 4 898 294, plus interest at the rate of 20 per cent per annum calculated from 1 August 2015 to date of full and final payment. 3. There is no order as to costs. 4. The matter is finalized and removed from the roll. ___________________________________________________________________ JUDGMENT ___________________________________________________________________ PARKER AJ: Background to the matter [1] In the present application, applicant, represented by Mr Heathcote SC (with him Mr Schickerling), seeks an order in the following terms: 1. That the final award of the arbitrator published on 9 March 2020 is set aside. 2. That the first respondent is ordered to pay the costs of the arbitration proceedings. Such costs to include the costs of one instructing and two instructed counsel, including the costs of any expert employed by the applicant. 3. That the first respondent shall pay the following amounts to the applicant: 3.1 Payment in the am

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