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Wadeville (Pty) Ltd [2024] ZAGPJHC 1025 (2 October 2024)). For its part, JC
Impellers has referred to arbitration a dispute about whether Wadeville was entitled to terminate its lease, together with a claim for damages JC Impellers says it has suffered as a result of being spoliated of its electricity supply.
2 Wadeville now approaches me on an urgent basis for an interdict restraining
JC Impellers, and the second respondent, AFSA, from proceeding with the arbitration until the eviction application and the appeal against the spoliation
order have been finalised. At the hearing I formed the prima facie view that
the matter may be urgent, and I allowed the parties to address me on the merits. On mature reflection, however, I have decided that the matter is not
urgent after all. These are my reasons for reaching that conclusion.
3 Because it had already instituted proceedings for JC Impellers’ eviction at the
time JC Impellers referred a dispute to arbitration, Wadeville objects to the jurisdiction of the arbitrator to determine the validity of its termination of JC Impellers’ lease. It also fears that an arbitral award that directs it to pay damages flowing from the termination of JC Impellers’ electricity supply may ultimately be contradicted by an appeal judgment in its favour on the question
of whether it spoliated JC Impellers’ electricity supply. Wadeville worries about whether it will be able to challenge any arbitral award for damages against it that predates such an appeal judgment.
4 Wadeville has chosen to approach me after the disputes have been referred
to arbitration but before an arbitrator has weighed-in on whether they have jurisdiction to entertain the disputes referred, and on whether the disputes
should be postponed pending either of the proceedings presently before this
3
court. It is plain from the arbitration agreement that the arbitrator has such
powers. The arbitration agreement appears at clause 48 of the lease. That clause is a “separate, divisible agreement” from the rest of the lease (clause 48.11), and provides the arbitrator with the “fullest and freest discretion with regard to the [arbitration] proceedings” – including the right to determine their own jurisdiction, and “to raise matters . . . as if the dispute was heard before a
Judge in the High Court” (clause 48.7).
5 The arbitration agreement accordingly provides the arbitrator with all the tools
needed to address Wadeville’s concerns. The arbitrator is entitled to decide whether they have the jurisdiction to decide the lease termination dispute. The arbitrator is also, as far as I can see, perfectly entitled to postpone the arbitration – or that part of it concerning JC Impellers’ claim for damages – pending the outcome of the appeal or the eviction proceedings Wadeville is
currently pursuing. There is a range of other alternatives open to the arbitrator ,
the appropriateness of which will depend on the proper construction of the arbitration agreement in light of the lease of which it forms a part.
6 It is a curious feature of the lease in this case that it permits a dispute
concerning “the termination or purported termination of or arising from the termination of” the lease to be referred to arbitration (clause 48.1.4) while also permitting Wadeville to approach a court for an eviction order (clause 48.9.2), notwithstanding the referral of a lease termination dispute to arbitration. In contested commercial eviction proceedings, there is likely to be a substantial overlap between the question of whether the lease has been validly terminated, and the question of whether the lessor is entitled to an eviction
4
order. This obviously creates jurisdictional problems for any arbitrator seized
with a lease termination dispute against the backdrop of a pending High Court ejectment application. However, it seems to me that it is, at least in the first instance, for the arbitrator, rather than the urgent court, to unscramble that egg.
7 Wadeville asks me to pre-empt all of this, because it considers that JC
Impellers is using the arbitration process merely to delay the eviction proceedings, and because Wadeville thinks that it is more convenient, given that there are already two cases involving the lease currently before the court,
for the arbitration to be stayed pending the determination of those cases.
8 The obvious answer to this contention is that there is nothing preventing
Wadeville from making those arguments to the arbitrator . But a more
fundamental answer involves the importance of holding the parties to their arbitral bargain. Courts will not lightly interfere with the implementation of arbitration agreements freely struck. Save where there is a challenge to the validity of the arbitration agreement itself, respect for contractual autonomy generally requires that a party submit to arbitration where a referral is properly made on an arbitral agreement.
9 Mr. Carstens, who appeared for Wadeville, relied on the decision of the
Supreme Court of Appeal in Canton Trading 17 (Pty) Ltd v Hattingh NO 2022
(4) SA 420 (SCA) (“Canton ”) to argue that I have the power and the duty to
prevent a meritless referral to arbitration being used to waste time and obstruct Wadeville’s pursuit of its lawful remedies in this court. But I do not think Canton
applies here. The issue in Canton was whether the parties had actually agreed
6
Caselines, and by publication of the judgment to the South African Legal Information
Institute. The date for hand-down is deemed to be 3 March 2025.
HEARD ON: 25 February 2025
DECIDED ON: 3 March 2025
For the Applicant: JC Carstens
Instructed by Martin Attorneys
For the First Respondent: B Manentsa
B Ndlovu
Instructed by Mota Africa Attorneys