The Lawyer

22/09/2015

Launching business rescue applications in liquidation proceedings – (successfully) flogging a dead horse?

Richter v Absa Bank Limited (SCA) (unreported case no 20181/2014, 1-6-2015) (Mhlantla, Leach, Pillay JJA, Fourie and Dambuza AJJA)

A potentially far-reaching decision regarding the launching of business rescue proceedings in liquidation proceedings was handed down on 1 June 2015 in the Supreme Court of Appeal in Richter v Absa Bank Limited (SCA) (unreported case no 20181/2014, 1-6-2015) (Mhlantla, Leach, Pillay JJA, Fourie and Dambuza AJJA).

The appeal was concerned with the issue as to whether it is competent to apply for business rescue in terms of s 131 of the Companies Act 71 of 2008 (the Act) after a final liquidation order has been granted against a company. The appellant appealed against the decision of the court a quo, which found that it was not competent to apply for business rescue after a final winding-up order had been issued. In deciding this issue, the court’s primary focus was on the interpretation of ‘liquidation proceedings’ within the context of s 131(6) of the Act, which interpretation would ultimately determine the outcome of the appeal.

Sub-sections 131(1) and (6) of the Act provide that:

‘(1) Unless a company has adopted a resolution contemplated in section 129, an affected person may apply to a court at any time for an order placing the company under supervision and commencing business rescue proceedings.

…

(6) If liquidation proceedings have already been commenced by or against the company at the time an application is made in terms of subsection (1), the application will suspend those liquidation proceedings until –

(a) the court has adjudicated upon the application; or

(b) the business rescue proceedings end, if the court makes the order applied for.’

In interpreting the concept ‘liquidation proceedings’, the court placed significance on the fact that s 131(1) of the Act entitles affected persons to apply to court for an order placing a company under supervision and commencing business rescue proceedings at any time. The court then extrapolated on this by pointing out that s 131(7) also empowers the court, when considering an application for business rescue, to grant orders provided for in subs 131(4) and (5) at any time during the course of liquidation proceedings.

The court then turned its attention to the meaning of ‘liquidation’. It pointed out that ‘[g]enerally, in law and in business, liquidation is the exhaustive process by which a company is brought to an end, and the assets thereof, if any, are redistributed’.

The court continued by pointing out that the position on the granting of a final order of liquidation is that the company continues to exist; it is merely the control of its affairs that is transferred from the director(s) to the liquidator(s). In terms of s 348 of the Companies Act 61 of 1973, liquidation by the court commences on presentation to it of the application for the winding-up, and continues until the affairs of the company have been finally wound up and the Master’s certificate to that effect is published in the Government Gazette, thus dissolving the company.

The gist of the court’s thinking is contained in para 12: ‘I do not think the phrase “liquidation proceedings” in any way alters the significance of what is meant by liquidation. In terms s 136(4) of the Act if liquidation proceedings have been converted into business rescue proceedings, the liquidator is regarded as a creditor of the company to the extent of any outstanding amounts owing to him or her for any remuneration due for work performed, or compensation for expenses incurred before the commencement of business rescue proceedings. Under s 1(1) and sch 5(9) of the 1973 Act, which applies to liquidation of insolvent companies, the definition of “liquidator” includes a provisional liquidator and a final liquidator. Consequently, the conversion of liquidation to business rescue even after a final liquidation order has been granted, was clearly envisaged by s 136 (4)’.

In discussing the practicalities of its decision, the court then formed the view that it would be fairly easy to contemplate instances, after the issue of the final winding-up order, which could lead to circumstances where the company improves drastically, to the point where it would become profitable, should it be allowed to trade. It sights examples of the company being awarded a contract previously tendered for, securing of funding for future projects and the subordination of claims by major creditors. Accordingly, the court remarked that ‘… in the scheme of things, where, during liquidation, evidence becomes available that business rescue proceedings will yield a better return for shareholders and creditors and jobs will be retained, there could be no reason to deny business rescue only because a company is in final liquidation. Indeed, to allow it to do so would fall into the very scheme of business rescue envisaged by the Act and fulfil the objectives of providing for revival of a financially distressed company with all its attendant social benefits’.

During argument, the respondent raised various concerns with what it termed a ‘liberal interpretation’ of s 131(1) of the Act. The concerns included repetitive disruptions and uncertainly resulting from various affected parties launching business rescue proceedings (even at different times), a company’s capacity (or lack thereof) to conduct effective business and conclude and implement contracts under final winding-up conditions and the revision of business control to the very directors who may have caused the company’s financial distress (thereby putting the proverbial rabbit in charge of the lettuce).

The court conceded that these concerns are valid, but was not persuaded to revert to what it termed ‘an unduly restrictive approach’ in interpreting the Act. It dealt with these concerns thus: ‘The simple answer is that a court can dismiss any application for business rescue that is not genuine and bona fide or which does not establish that the benefits of a successful business rescue will be achieved.

‘There is no sensible justification for drawing the proverbial “line in the sand” between pre and post final liquidation in circumstances where the prospects of success of business rescue exist. The legislature did not do so and to restrict business rescue to those cases in which a final winding up order has not been granted is inimical to the Act’.

On a cursory reading the judgment may tend to offend the insolvency practitioner; surely it could not have been the intention of the legislature to allow for applications for business rescue to be made at any time before the dissolving of a company? Surely such a state of affairs can only harm the self-evident legal belief that interpretations of statutes should lead to, or at the very least advance, legal certainty? Where can we find any certainty in liquidation proceedings if any Joe Soap can apply to place a company under supervision at any (even an advanced) stage of being wound-up?

However, one must keep in mind that it is not the purpose of the courts to clarify what it believes the thinking of the legislature ought to have been. If the wording of the Act is clear and unambiguous, it must be interpreted as such. Should it perceive its mandate to extend further than that, the judiciary will run the risk of meddling in another sphere of government. That, and the unavoidable allegations of disregarding the separation of powers that accompany such meddling, is something that the judiciary should best avoid.

27/08/2015

Music Creators: Playback Time is Payback Time.

Do you compose music of any kind, write lyrics, perform vocals or play instruments in studio and help record music? Congratulations! You’re a Music Creator!

Music creators are the group of people who play a role in making the amazing, moving, thoughtful, powerful works that SAMRO vigilantly watches over. A lot of people play a role in bringing great music to the public and SAMRO protects the rights of everyone involved in the creation of musical works. This includes composers, authors, lyricists and music publishers.

As long as your musical works are active – which means they have been commercially recorded or performed in public, or broadcast on television or radio, you might qualify for SAMRO membership.

Composers:

Composers make magic out of musical notes. We’re talking anything from composing music for songs to those soundtracks you hear on movies or jingles – all the way up to orchestral symphonies. If you pour your heart into writing and creating original music - you’re a composer!

As a composer, you hold a number of different rights to your music. SAMRO administers what is known as Performing Rights, which control what happens when your music is performed in public. Mechanical Rights are another form of music right that come into play when your music is reproduced mechanically. In South Africa Mechanical Rights are administered by the Composers, Authors & Publishers Association (CAPASSO). From 2014 onward, composers need to join CAPASSO as members in order to enjoy the benefits from their Mechanical Rights.

Want to know more? We’ll break down the types of Music Creators and the different rights that apply to you.

Lyricist / Author:

Lyrics give meaning to music. If you weave words into melodies and create lyrics that accompany music – it makes you a music author and you’re entitled to be paid royalties whenever your music is used/ is active.

Like Composers, SAMRO looks after the Performing Rights of Authors, while an organisation called CAPASSO now handles your Mechanical Rights. That means from 2014, Authors need to register to become members of CAPASSO to receive the benefit of their Mechanical Rights.

SAMRO administers the music copyright related to Performing Rights and collects licence fees which are then distributed as royalties on your behalf. Which means if someone wants to use your words either to perform in public or to play or broadcast it – they need a usage licence.

What is a Music Publisher?

Music Publishers team up with the guys who make music to get their works out to the big wide world. They might use songs in an advert, or as part of a movie. Or as part of another recording – such as when a DJ samples a chorus line from a song. They usually create a contract with the artist who produced the music – and both parties reap the benefits – and the profits.

To be a SAMRO approved Music Publisher you must have a catalogue of music works that have been commercially published or recorded. And the author/s of the music works you have made use of must be members of SAMRO or one of our international partners.

Recording Artists:

Recording Artists are the talent in the recording studio that brings it all together. The music we enjoy wouldn’t be possible without the vocalists, musicians and others who help record the song. Recording Artists also enjoy protection and rights as Performers’ Organisation of South Africa (POSA) Trust Members.

For more info. . . [email protected]

25/08/2015

Vicarious liability - three relationships

Vicarious liability is where a party can be held liable for the wrongful acts of another on the basis of the particular relationship that exists between the parties. Three relationships demonstrating vicarious liability are the relationship between an employer and employee, a principal and an agent and a motorcar owner and motorcar driver.

Where an employee commits a wrongful act whilst acting within the course and scope of his employment, the employer can be held fully liable for the damage caused by the employee. This is a form of vicarious liability as fault is not a requirement for the employer to be held liable. There are three requirements that must be met in order for an employer to be held liable for the actions of the employee.
1. There must be an employer - employee relationship at the time when the wrongful act is committed by the employee.

2. The employee must have committed a delict (a wrongful and culpable act which causes harm to another).

3. The employee must act within the course and scope of his employment when the delict is committed.
Principal - agent

If an agent commits a delict whilst executing tasks on the authority of his principal, the principal can be held fully liable for any damage caused by the agent. In order for a principal to be held delictually liable for the actions of an agent, the following three requirements must be met:
1. A principal - agent relationship must exist at the time when the delict is committed.

2. The agent must commit a delict.

3. The agent must have acted within the scope of his authority when the delict was committed.
Motorcar owner - motorcar driver

Vicarious liability will attach to an owner of a motor vehicle for the actions of the driver of that motor vehicle if, whilst driving the vehicle the driver causes harm to another. In order for a motorcar owner to be held liable for the actions of a motorcar driver, the following three requirements must be met:
1. The owner must request the driver to drive the vehicle or supervise the driver's driving.

2. The vehicle must be driven in the interests of the owner. The interests may include a patrimonial or social interest.

3. The owner must retain a right (power) of control over the manner in which the vehicle was driven. It is not physical control, which is important but the right to control the manner of the driver's driving.

It is important to be aware of the circumstances under which you can be held liable for the actions of another so that proper precautions can be taken to ensure that those under your control, or who act on your authority, always act with the utmost care and in accordance with all of the provisions of the law.

--- The Lawyer is based in Sharpeville, Vereeniging and may be contacted on [email protected] ----

21/08/2015

Legal Compliance

Every business will face potential prosecution for not being compliant with the law. Non-compliant companies face risks including penalties imposed on the business and executives, jail time, negative publicity, operational suspension, decreased productivity and increased liabilities.

Legally compliant businesses may however find themselves in a healthier financial state by avoiding losses incurred through non-compliance.

It is vital for companies to prioritise legal compliance if they want to stay out of trouble with the law, Companies need an overview of their position in terms of legal compliance to any Act, standard or best practices. To keep ahead, businesses need insight into all relevant legislation pertaining to their operation but more importantly, they need to know when legislation changes rather than referring to outdated legislature.”

20/08/2015

Interpretation of s 133(1) of the Companies Act 71 of 2008 – the principle of moratorium re-defined under business rescue

Cloete Murray and Another NNO v FirstRand Bank Ltd t/a Wesbank 2015 (3) SA 438 (SCA)

The enactment of the Companies Act 71 of 2008 (the Act) brought about s 7, envisaging the purpose and application of the Act, inter alia, subs k ‘provide for the efficient rescue and recovery of financially distressed companies, in a manner that balances the rights and interests of all relevant stakeholders, and introduces business rescue proceedings for financially distressed companies.

The Act entrenched these provisions under ch 6 of the Act – ss 128 to 156. Section 128(1)(b) defines business rescue as ‘proceedings to facilitate the rehabilitation of a company that is financially distressed by providing for –

(i) the temporary supervision of the company, and of the management of its affairs, business and property;

(ii) a temporary moratorium on the rights of claimants against the company or in respect of property in its possession; and

(iii) the development and implementation, if approved, of a plan to rescue the company by restructuring its affairs, business property, debt and other liabilities, and equity in a manner that maximises the likelihood of the company continuing in existence on a solvent basis or, if it is not possible for the company to so continue in existence, results in a better return for the company’s creditors or shareholders than would result from the immediate liquidation of the company.’

Section 133(1) of the Act – temporary moratorium

For the purposes of this article, focus will be on s 128(1)(b)(ii) of the Act – the temporary moratorium on the rights of claimants against the company or in respect of property in its possession during business rescue proceedings.

The temporary moratorium against a company under business rescue is effective on commencement of business rescue proceedings. There is an automatic and general moratorium (or stay) on legal proceedings or ex*****ons against the company, its property, assets and on the exercise of the rights of creditors of the company (FHI Cassim (managing ed) Contemporary Company Law 2ed (Cape Town: Juta 2012) at 878).

The Supreme Court of Appeal (SCA) in the recent judgment of Cloete Murry at para 14, Fourie AJA held that it is generally accepted that a moratorium on legal proceedings against a company under business rescue, is of cardinal importance since it provides the crucial breathing space or a period of respite to enable a company to restructure its affairs and that, it was aptly described moratorium is a cornerstone of all business rescue procedures.

The temporary moratorium referred to above in terms of s 128(1)(b)(ii) has been enacted by means of s 133(1). Section 133(1)(a) – (b) under the heading ‘[g]eneral moratorium on legal proceedings against company’ provides that – ‘[d]uring business rescue proceedings, no legal proceeding, including enforcement action, against the company, or in relation to any property belonging to the company, or lawfully in its possession, may be commenced or proceeded with in any forum, except –

(a) with the written consent of the practitioner;

(b) with the leave of the court and in accordance with any terms the court considers suitable; … .’

Interpretation of s 133(1) as held in the Cloete Murry matter

The appeal was heard by Fourie AJA (Navsa ADP, Ponnan and Zondi JJA and Schoeman AJA concurring) dealing with the interpretation of s 133(1), whether once business rescue proceedings under the Act have commenced, the creditor of a company under business rescue can unilaterally cancel an extant instalment sale agreement (agreement) that it had concluded with the company prior to the company being placed under business rescue. FirstRand Bank Ltd t/a Wesbank (Wesbank) entered into an agreement with Skyline Crane Hire (Pty) Ltd (Skyline) in terms of which Wesbank sold and delivered movable goods to Skyline, Wesbank retaining ownership in the goods until the purchase price had been paid in full.

Skyline was placed under business rescue, and had already been in arrears in respect of the monthly instalments payable to Wesbank under the agreement. Wesbank, subsequently dispatched a letter of cancellation of the agreement to Skyline due to failure to pay the monthly instalments, and advised it would repossess the goods; it would value and sell same; and credit the proceeds to the relevant accounts and to claim damages. The business rescue practitioner appointed in terms of the Act to oversee the proceedings consented to the repossession and selling of the goods.

The business rescue, by order of court was discontinued and Skyline was placed in liquidation. The liquidators challenged Wesbank’s cancellation of the agreement and alleged that it was contrary to the provision of s 133(1), and of no force or effect. The application was dismissed in the court a quo (Gauteng Local Division, Pretoria, Jordaan J sitting as court of first instance).

The SCA was faced with the issue of determining the proper meaning of
s 133(1), particularly the correct interpretation of the term ‘… no legal proceeding, including enforcement action, against a company [under business rescue] may be commenced.’

Therefore, the cancellation of the agreement by Wesbank was alleged to be interpreted to constitute an ‘enforcement action’ as meant in s 133(1) by the liquidators and thus the absence of the written consent by the business practitioner or leave of the court in terms of subs (1)(a) and (b) meant that the cancellation was of no force or effect. In contrast, Wesbank submitted that the cancellation did not constitute ‘enforcement action’ as envisaged by the section, thus no consent or leave by the court was required to cancel the agreement.

Fourie AJA, held that an interpretation of s 133(1) called for, the crisp issue being whether the cancellation of the agreement constituted ‘enforcement action’ as meant in s 133(1) of the Act?

The Act places a moratorium on ‘legal proceedings’ and ‘enforcement action’, which definition of the said terms is not contained in the Act.

‘Legal proceeding’

It was held at para 31 that this term is well-known in South Africa legal parlance and usually bears the meaning of a lawsuit or ‘hofsaak’, in the Afrikaans translation. Therefore cancellation of an agreement does not constitute a legal proceeding in terms of s 133(1).

‘Enforcement action’

Fourie AJA at para 32 accepted that in our legal parlance, ‘enforce’ or ‘enforcement’, usually refers to the enforcement of obligations. Evaluating the context of s 133(1), reference is made to ‘no legal proceeding, including enforcement action’ as such, inclusion of the term ‘enforcement action’ under the generic phrase ‘legal proceeding’ was held to indicate that:
◦‘enforcement action’ is considered to be a species of ‘legal proceeding’; or,
◦at least, is meant to have its origin in the legal proceedings.

This conclusion was further held to be strengthened by the wording of s 133(1), which ‘provides that no legal proceeding, including enforcement action, “may be commenced or proceeded with in any forum” (my emphasis). A “forum” is normally defined as a court or tribunal (see the Concise Oxford Dictionary 12 ed (2011)) and its employment in s 133(1) conveys the notion that “enforcement action” relates to formal proceedings ancillary to legal proceedings, such as the enforcement or ex*****on of court orders by means of writs of ex*****on or attachment’.

Therefore, Fourie AJA held at para 33 that the concepts of ‘enforcement’ and ‘cancellation’ are traditionally regarded as mutually exclusive. ‘Cancellation’ connotes the termination of obligations between parties to an agreement and cannot be interpreted to mean enforcement action as envisaged under s 133(1), as such the correct interpretation of
s 133(1) was held to contextually be understood to refer to enforcement action by way of legal proceedings.

Conclusion

Therefore, a creditor of a company under business rescue proceedings may cancel a contract if such company is in breach of the agreement, this cannot, according to s 133(1) be regarded as an enforcement action falling under the notion of moratorium. The court concluded that ch 6 of the Act provides for safeguard provisions to prevent the disastrous result foreshadowed by the liquidators (ss 136(2); 154(2) of the Act).

19/08/2015

18/08/2015

The lawyer is running a "free of charge" campaign about advising clients and correcting their signed contracts.

If you know that you are about to sign or have signed a contract contact the lawyer and we will advise you accordingly and if the contract is prejudicial to you, we will cancel it, even if you signed.

Please note that you may reach me on [email protected] all communication is treated as confidential.

14/08/2015

Happy lawyers make more money. Broke lawyers don’t do anyone any good…least of all their clients, their family or themselves.

14/08/2015

Effect of arbitration agreement:

The facts in Stieler Properties CC (Registration number 2003/014057/23) v Shaik Prop Holdings (Pty) Ltd (Registration number 2001/028696/07) [2015] 1 All SA 513 (GJ) were as follows:

The applicant, Stieler, purchased immovable property situated in a Johannesburg residential estate from the first respondent, Shaik. Transfer of the property was delayed due to the requirement that the estate’s homeowners’ association had to approve the sub-division of the property.

Stieler applied for a declaration that the contract was void ab initio due to impossibility of performance, occasioned by inability to sectionalise and effect tra-ns-fer. In the alternative, Stieler sought an order that it had validly cancelled the agreement. Shaik contended that it was not a requirement for the validity of a contract for the sale of land, that transfer take place on the date of sale, and that the inability to effect transfer on the date of sale, did not constitute impossibility of performance. It contended that Stieler was always aware of the process, and that Stieler had brought the application prematurely. It, therefore, sought a stay of proceedings so that the dispute could be resolved by means of arbitration as provided for in clause 16 of the agreement.

In considering the application, Mosikatsana AJ held that the allegation of impossibility of performance was not sustainable. The alleged impossibility was subjective, and not absolute. It, therefore, did not render the contract void ab initio, but possibly voidable.

There is no automatic right of cancellation of a contract on the basis of the debtor’s mora. Cancellation is an extraordinary remedy. Restitution is not part and parcel of the act of rescission, but a consequence of it.

The court held that the application was brought prematurely, and that the dispute should have been referred to arbitration. Stieler’s application for a stay of proceedings, pending arbitration, was granted. The court made no order as to costs.

Formalities: In Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and Another 2015 (2) SA 118 (SCA) the court confirmed that e-mails generally have the same legal status in law as paper-based documents and conventional ‘pen on paper’ signatures.

The two parties, Wilberry and Spring Forest, entered into several agreements in terms of which Spring Forest leased from Wilberry its Mobile Dispensing Units for use in its car wash business. At stake was the validity of the cancellation, of a number of agreements between the parties, by exchange of e-mails. The agreements contained clauses providing that the agreements may only be cancelled in writing and signed by the parties. Spring Forest was not able to meet its rental commitments and the parties met and agreed orally to cancel their agreements. The terms of the cancellation were recorded in a subsequent e-mail exchange where the names of the parties appeared at the foot of each e-mail. Spring Forest then entered into an agreement with another entity to conduct the same business. In response, Wilberry instituted proceedings to interdict Spring Forest from continuing its business on the grounds that this was in breach of their agreements. It alleged Spring Forest was in breach because the amendments (which were only recorded in e-mail exchanges) did not satisfy the non-variation clause requirement that amendments are only valid if ‘in writing and signed’ by both parties. Wilberry also claimed that only ‘advanced’ electronic signatures referred to in s 13(1) of the Electronic Communications and Transactions Act 25 of 2002 (the ECT Act) can satisfy a signature requirement where the parties to an agreement require a signature for something to be valid.

Section 13(1) of the ECT Act provides that where a signature is required by law and the law does not specify the type of signature to be used, this requirement is met only if an ‘advanced electronic signature’ is used. Wilberry thus argued that the reference in s 13(1) to ‘required by law’ is not limited to statutory law, but also includes where parties require a signature in terms of a contract.

Cachalia JA held that where parties to an agreement require amendments to be made ‘in writing and signed’, e-mail does satisfy the ‘writing’ requirement and a party’s name at the foot of an e-mail may qualify as a signature.

The test is whether the method of the signature used fulfilled the function of a signature to authenticate the identity of the signatory. Where the parties to an electronic transaction require a signature, but they have not specified the type of electronic signature to be used, the requirement is met if a method is used to identify the person and to indicate the person’s approval of the information communicated.

The typewritten names of the parties at the foot of the e-mails, which were used to identify the users, constituted ‘data’ that was logically associated with the data in the body of the e-mails – as envisaged in the definition of an ‘electronic signature’. They therefore satisfied the requirement of a signature, and had the effect of authenticating the information contained in the e-mails.

Finally, the court held that s 13(1) – which deals with ‘advanced’ e-signatures – is only applicable where a signature is required by statutory law, not by contract.

The appeal was accordingly upheld with costs.

05/08/2015

Just to remind all those people who want Business Plans / register their businesses, that now they can contact me and see if we can arrange for consultations.

Reach me on: [email protected]

Please include your contact numbers.

04/08/2015

Reward Ventures 01 CC v Walker (946/12) [2013] ZASCA 207 (05 December 2013)

The Supreme Court of Appeal handed down judgment this day in an appeal from the South Gauteng High Court, Johannesburg.

The appellant had sold the respondents a restaurant in 2008 in terms of a written agreement. After a dispute over whether or not the agreed sum included Value Added Tax (VAT), the appellant commenced arbitration proceedings against the respondents, claiming payment of the VAT portion of the sale price. The arbitrator decided the matter in the appellant’s favour.
The respondents then took this arbitration award on review before the high court, claiming that the arbitrator neither gave reasons for his findings nor addressed their counterclaims that mainly denied that the owed the appellant the VAT portion of the sale price. The high court dismissed the review application. On appeal before a full court, the respondent’s review application was upheld and the arbitration award was set aside.

The appellant appealed this finding with the special leave of this court. The issues before this court were whether the full court exceeded the ground on which the court of first instance granted leave to appeal; whether the arbitrator’s decision was final; and, if not, whether the arbitrator was guilty of gross misconduct in the conduct of the arbitration.

The appellant argued that the full court should have confined its adjudication to the question whether the arbitrator granted a final order, and further that the judgment of the court of first instance – which found that the arbitrator had committed no irregularity or misconduct – was correct. The respondents countered that the question whether or not the award was final is intertwined with the question whether the arbitrator, in making the award as he did, committed a gross irregularity, and thus that once the full court found that the award was not final, it was competent for it to consider whether the arbitrator committed a gross irregularity in the conduct of the arbitration and whether the award should be set aside.
This court assumed without deciding that the full court acted within its appeal powers and held that the arbitration award itself makes it clear that the arbitrator had not ignored the respondents’ counterclaims as they are set out in full before the finding is made. Accordingly, this court found that no other inference but that the arbitrator considered the respondents’ counterclaims and found them wanting can be drawn from these facts. As such, the arbitrator executed his mandate in accordance with the agreement of sale between the parties and did not breach any provisions of the Arbitration Act 42 of 1965, and the arbitration award therefore not liable to be set aside.
In the event, the appeal was upheld with costs.