Naidoo v EP Property Projects (Pty) Ltd and Others

The dispute concerned ownership of an undeveloped coastal property. EP Property Projects (Pty) Ltd acquired the property in 1980. After EP’s shares were sold in 1990 to interests controlled by the Stevenson family trust, Alex and Gary Stevenson acted as EP’s directors for many years. In 2005, the former owner Blignaut purported to act for EP despite a court order barring him from doing so. In breach of that order, Blignaut purported to sell and transfer the property to Reginald Tobias Marais in 2006. EP challenged the transfer. By agreement, and with consent, the High Court ordered the dispute to be referred to arbitration before Hodes SC. The arbitrator found the deed of sale relied on by Tobias to be fraudulent and held that EP remained the true owner. Tobias sought to review and set aside the award under s 33 of the Arbitration Act and opposed its confirmation as a court order. EP also sought a costs order against Tobias’s litigation funder, Ms Naidoo, who had taken cession of Tobias’s rights under a pactum de quota litis.

The appeal was dismissed with costs, including the costs of two counsel. The arbitration award remained valid and enforceable, and the costs order against the funder was upheld.

The case reaffirms the finality of arbitration and the limited scope of judicial interference under s 33 of the Arbitration Act. It underscores that parties who participate in arbitration without objection submit to jurisdiction and cannot later raise tactical challenges. It is also significant for confirming that commercial litigation funders who control proceedings may be held liable for adverse costs.