IN THE CONSTITUTIONAL COURT REPUBLIC OF SOUTH AFRICA
Case No.:
In the matter between:
LUFUNO MPHAPHULI & ASSOCIATES (PTY) LTD Applicant and
NIGEL A ANDREWS First Respondent
BOPANANG CONSTRUCTION CC Second Respondent
NOTICE OF APPLICATION FOR LEAVE TO APPEAL
1. BE PLEASED TO TAKE NOTICE THAT the applicant makes application for leave to appeal to the Constitutional Court of South Africa against the whole judgment granted by the Supreme Court of Appeal on 22 November 2007 (per Ponnan JA writing on behalf of unanimous court) in which the applicant’s case was dismissed with costs.
2. BE PLEASED TO TAKE NOTICE FURTHER THAT the appeal is
based on the following constitutional issue:
2.1. The Supreme Court of Appeal held that the only grounds for setting aside an arbitrator’s award are those contained in the Arbitration Act.
2.2. The non-observance of the principles of natural justice generally and the audi alteram partem rule in particular do not constitute a basis on which an arbitrator’s award can be set aside.
2.3. Section 34 of the Constitution guarantees all litigants, including those in an arbitration, the right to a fair hearing in an impartial tribunal and this, implicitly, would include their right to receive natural justice more generally and audi in particular.
2.4. The Supreme Court of Appeal has interpreted the law in a manner that is inconsistent with the guarantee afforded to litigants in the Bill of Rights.
2.5. The Common Law should be developed in order to cure this inconsistency.
3. KINDLY TAKE NOTICE FURTHER THAT the applicant seeks an order in the following terms:
3.1. That the decision of the Supreme Court of Appeal be reversed/overturned;
3.2. That the costs of this application be costs in the appeal;
3.3. The granting of further and/or alternative relief.
4. KINDLY TAKE NOTICE THAT the accompanying affidavit of Lufuno Herman Mphaphuli will be used in support of this application.
5. KINDLY TAKE NOTICE FURTHER THAT a copy of the Supreme Court of Appeal’s judgment is also attached to the application.
6. KINDLY TAKE NOTICE FURTHER THAT the applicant/appellant has appointed Knowles Husain Lindsay Inc (No 2 Maude Street, The Forum, Fourth Floor, Sandown, Sandton; Ref: Mr Alex Eliott) as the address at which it will accept notice and service of all process in these proceedings.
7. KINDLY TAKE NOTICE FURTHER THAT within 10 (ten) days of the lodging of this application, the respondents may respond hereto in writing and in which they:
7.1. Indicate whether or not they consent to the granting of leave to appeal, and if not, the grounds upon which they oppose the application; and
7.2. Appoint an address at which they will accept notice and service of all documents in these proceedings.
DATED AT SANDTON ON THIS THE 13TH DECEMBER 2007.
KNOWLES HUSAIN LINDSAY INC Applicant’s attorneys
Docex 42, Sandton Square Tel: (110 669-6000 Fax: (011) 669-6299
C/O FRIEDLAND HART INCORPORATED 201 Van Der Stel Building
179 Pretorius Street
Pretoria Ref: Mr A Eliott
To:
THE REGISTRAR OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA
And To:
BARNARD INC
First Respondent’s Attorney
Shop 2 Saambou Building Received copy hereof this Lower Ground Level ___ day of December 2007 227 Andries Street
Pretoria ___________________________
Tel: (012) 664 0704 for: First Respondent’s Attorney Ref: WB/cl/QB0025
And To:
SHULZ LEWIS INCORPORATED Second Respondent’s Attorney C/O NEUHOFF ATTORNEYS
62 Bronkhorst Street Received copy hereof this
Groenkloof ___ day of December 2007
Pretoria
Tel: (012) 460 9360 ____________________________
Ref: Mr Schulz for: Second Respondent’s Attorney
