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Arbitrator’s award considered nothing but an irrelevant opinion…

5 August 2020

Recently we were involved in a matter where adjudication proceedings were instituted against our client under a subcontract whereby our client’s opponent (the Contractor) sought to recover amounts that an arbitrator had decided the Contractor was liable for in arbitration proceedings that took place under the main contract. In other words, the Contractor sought to recover amounts it was liable for to the Employer per the arbitration award from its Subcontractor (our client).

We successfully defended these proceedings on behalf of our client. The Adjudicator dismissed the Contractor’s claim. In doing so, the Adjudicator determined that the finding of the arbitrator is nothing but an irrelevant opinion, relying on established case law to make this determination.

The case law relied on is an old English judgment dating back to 1943 that was adopted into South African law many years ago but is still applied by our courts today, so we thought to provide a refresher on the principle. The case law relied on is an old English judgment dating back to 1943 that was adopted into South African law many years ago but is still applied by our courts today, so we thought to provide a refresher on the principle.

Hollington v F Hewthorne & Co[1] arose out of a collision between two cars on a highway. The driver of the defendant’s car was convicted of the criminal charge of careless driving. The plaintiff’s car had been damaged by the collision and the plaintiff sought damages against the defendant in subsequent civil proceedings. However, before the hearing, the plaintiff’s driver (his only witness) died. The plaintiff sought to use the conviction of the defendant to establish a case against the defendant for damages. The court determined that the judgment of the criminal court is an “irrelevant and inadmissible opinion” in later civil proceedings. This principle has been adopted in several jurisdictions but has also been excluded by several, having faced a lot of criticism for being prejudicial to litigants.

So how is this judgment relevant to arbitration and adjudication proceedings? Our courts have determined that it is. In the case of Graham v Park Mews Body Corporate[2], the High Court determined that the Hollington rule applied in a matter where the previous proceedings were arbitration proceedings. The High Court held that there seems to be a general rule that findings of another tribunal cannot be used to prove a fact in a subsequent tribunal and held that there is no logical reason why this rule cannot be extended to the findings, orders and awards of other tribunals.

Several South African legal scholars have argued for the abolition of this rule, but our superior courts have yet to develop our law to this effect. 


[1] [1943] 2 ALL ER 35.

[2] 2012 (1) SA 355 (WCC).

Author: Kelly Meijers, Senior Associate