Judicial Review of Arbitration Awards

• Jurisdiction: South Africa
• Date: 16 August 2019
• Citation: (2014) 25 Stell LR 247
• Published date: 16 August 2019
• Author: FDJ Brand
• Pages: 247-264

247

JUDICIAL REVIEW OF ARBITRATION AWARDS

FDJ BRAND

SC BA LLB LLM (Stell) LLD (hc) (UFS)

Judge of the Supreme Court of Appeal of South Africa; Extraordinary Professor of

Private Law, University of the Free State; Honorary Professor of Private Law, University

of Stellenbosch*

1 Introduction

David Butler and I shared a law class at Stellenbosch between 1968 and

1972. The photograph of our nal year r eveals that, apa rt from David, t he

class produced a number of professors. The photogr aph also reveals that at the

time the law faculty consisted of ve members only. And it is clearly a tribute

to those ve teachers that they instilled i n most of us a n afnity for the law

in general and a devotion to the academic study of the law in particular. Two

of the later professors were Gerhard Lubbe and Max Loubser. While I joined

Gerhard and Max as members of the Stellenbosch law faculty immediately

after we qualie d at the end of 1972, David went into practice as an attorney.

When I joined the Cape bar some years later, David returned, more or less

at the same time, to the faculty as a teacher. So I lost the privilege of ever

practising with David.

I speak of a lost privilege deliberately becau se I met with David’s reputation

as one of the most able young attorneys in Cape Town immediately upon

my arrival at the bar. One of the biggest cases running at the time was the

Mitchell’s Plain arbitration. David acted for one of the parties. His leading

counsel was Werner Vivier SC who soon thereafter took an appointment to

the Cape bench. Since Werner lectu red to us in civil procedure and conti nued

to do so after I joined the faculty, I knew him quite well when I joined the

bar. Moreover, we later became colleagues and close friends i n Bloemfontein.

The point of the story is that Werner consistently maintained right through

the duration of our lengthy association that David was the best attorney from

whom he ever received instructions. Coming from Werner, who had been

instruct ed by numerous attorneys, and who had de servedly held the reputation

of setting the highest standards for both himself and those who worked with

him, that was inde ed high praise.

Yet there are two further points to the story. The rst is that as a ver y busy

and successful young attorney David plainly did not return to academic life

for the money. One can only infer that he must have done so for the love

of researching and teaching the law. But whatever his reasons and whatever

the  nancial wisdom of his choice, the facult y and h is many st udents have

* I express my sinc ere thanks to M s Rosalind Elphick, a r esearcher at the SCA, fo r her valuable assist ance,

not only in prep aring this ar ticle but also in maki ng some helpful sugges tions with regard t o content and

formulation

(2014) 25 Stell LR 247

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over the years enjoyed the benet of his decision. This tends to indicate that

although his decision resulted i n a loss to the legal profession, it was the right

one after all. The second point brings me closer to my topic. It is this. Since

David spent a large part of his career as an attorney in conducting a large

and complex arbitration, he knew arbitrations from a practical angle before

he started his research and writings on the subject. Or, in the parlance of our

national sport, he cou ld closely observe a ru gby match being played before he

started to study the ru les of the game. That must have played a signi cant role

in David becoming one of the leadi ng authorities in this eld.

By contrast I never had a lucrative arbitration practice. In fact, I had no

arbitration practice at all. With hindsight, it seems that I spent the most part

of my career at the bar with David de Villiers QC in resolving the problems

of Kubus – a well-known company in the mil k industry in those days – and i n

unsuccessfully defending the director of that company on criminal charges.

My r st real encou nter with the law of arbitration was on the bench of the

Cape H igh Court. I n fact, one of my ver y rst reported judgme nts, when I

was still an acti ng judge, was Bester v Easigas (Pty) Ltd1(“Bester”).It was an

application for the setting aside of an ar bitration award. It so happens that one

of my very last reported jud gments in the Cape before I came to Bloemfontein,

Kolber v Sourcecom Solut ions (Pty) Ltd2 (“Kolber”), was on the same subject.

While Bester was fairly well received by academic writers, including Butler

and Finsen,3 the only academic reference to Kolber I have come across was by

David in his contribution to LAWSA.4 What is more, none of my judgments

on the subject in the Supreme Cour t of Appeal5 were regarded as even worthy

of reporting in any of our many series of law reports. So again two points

seem to arise. First, that I should learn to quit while I’m ahead and, secondly,

that my knowledge of the subject is on the decline. Nonetheless, my choice of

topic – judicial review of arbitration awards – was dictated by my interest in

this eld of David’s undoubted expertise. Judicial review of arbitrat ion awards

is a broad area. I intend to limit my focus to the role of the courts in relation

to arbitration undertaken voluntarily, as opposed to imposed by statute, and

domestically, as opposed to arbitrat ion arising out of international comme rcial

agreements and other i nternational relationships.

Arbitration voluntarily undertaken is a consensual process in that the

primary source of the arbitrator’s jurisdiction is the arbitration agreement,

akin to any other contract, between the parties. The arbitration agreement

allows parties to choose their arbitrator and tailor the procedure to their

specic needs; Landman J aptly described it as “ individualized justice”.6

In consequence, a rbitration can offer signicant savi ngs in time and costs

1 1993 1 SA 30 (C)

2 2001 2 SA 1097 (C)

3 D Butler & E Finsen Ar bitration in Sout h Africa: Law and Pra ctice (1993) 291-294

4 DW Butler “Arbitration” i n WA Joubert, JA Faris & LTC Harms (ed s) LAWSA 1 2 ed (2003) paras 557, 574,

598, 600-603, 605 a nd 611

5 See for example Gu tsche Family Investmen ts v Mettle Equity Grou p (115/211) 2012 ZASCA 4 (8 March

2011) S AFLII <http://www saflii org/za/case s/ZASCA/2012/4htm l> (accessed 19-06-2014)

6 Eskom v Hiemst ra NO 1999 20 ILJ 2362 (LC) par a 21

248STELL LR 2014 2

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