Neil Harvey & Associates (Pty) Ltd v Medscheme Holdings (Pty) Ltd and Others

Neil Harvey & Associates (Pty) Ltd (NHA) was the claimant in an arbitration against Medscheme Holdings (Pty) Ltd and certain of its executives concerning alleged misuse of NHA’s confidential software and unfair competition. During the arbitration, disputes arose between NHA and ITQ Business Solutions (Pty) Ltd, a third party and key witness, regarding compliance with subpoenas and a separate Confidentiality Agreement regulating access to documents. Without notice to Medscheme, NHA engaged the same arbitrator to facilitate a meeting with ITQ to address implementation of that Confidentiality Agreement. Medscheme applied to the South Gauteng High Court under s 13(2)(a) of the Arbitration Act 42 of 1965 for the removal of the arbitrator, alleging a gross irregularity and a reasonable apprehension of bias. The High Court granted the application, and NHA appealed to the Supreme Court of Appeal.

The appeal was upheld with costs (including the costs of two counsel). The order of the High Court removing the arbitrator was set aside and replaced with an order dismissing the application for removal with costs.

The case clarifies the threshold for removing an arbitrator under s 13(2)(a) of the Arbitration Act and reinforces judicial restraint in interfering with arbitral proceedings. It confirms that not every procedural misstep or unilateral interaction constitutes a gross irregularity or gives rise to apparent bias; actual or realistic prejudice must be shown.