Johannesburg — THE Constitutional Court yesterday expressed concern that an Eskom contractor who lost an arbitration award had not raised any constitutional issue.

Lufuno Mphaphuli & Associates, which was Eskom's main contractor in an electrification project, lost an arbitration award to Bopanang Construction, a company it had subcontracted to do a portion of the work.

Lufuno failed in its application to the high court and the Supreme Court of Appeal to have the award set aside on the grounds of procedural unfairness.

SA's courts have always deferred to the principle of party autonomy in arbitration proceedings.

Judge Sandile Ngcobo said the appeal concerned the proper interpretation of the arbitration agreement between the parties and whether what the arbitrator did was permitted by the agreement. Ngcobo also said no constitutional issues were raised by Lufuno in the high court and the appeal court.

"Why is it in the interests of justice that this court must deal with the matter?" Ngcobo asked Gilbert Marcus, who was representing Lufuno.

"This is not purely a private matter. An enforcement of an award (by the courts) affects the administration of justice," Marcus said. Lawyers for Bopanang and arbitrator Nigel Andrews argued Lufuno did not raise any constitutional issue on appeal.

The court reserved judgment.