IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION , BLOEMFONTEIN 1
Reportable / Not reportable
Case no: 4250/2024
In the matter between
PROFESSIONAL MOBILE MAPPING (PTY) LTD APPLICANT
and
MAT JHABENG LOCAL MUNICIPALITY RESPONDENT
Neutral citation: Professional Mobile Mapping (Ply) Ltd v Matjhabeng Local
Municipality (4250/2024)
Coram: Mpama AJ
Heard: 31 OCTOBER 2024
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be 07 February 2025 at 1 SH00
Summary :
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ORDER
1. The respondent's first special plea is dismissed .
2. The respondent's second special plea is upheld.
3. No costs order is made.
JUDGMENT
MPAMAA J
[1] This is an application in terms of s 31 of the Arbitration Act 42 of 1965 (the Act) for
an arbitration award (the award) to be made an order of the court. The applicant and the
respondent concluded arbitration proceedings and an award was granted in favour of the
applicant. The applicant now applies for an order confirming the award and the respondent
opposes the application and has raised points in limine.
(2] The applicant is a company duly registered in terms of the company laws of South
Africa with domicilium executandi at 36 Radloff Street, Wilkoppies, Klerksdorp. The
respondent is an organ of the state in terms of s 2 of the Local Municipal Systems Act 32
of 2000 with a domicilium citandi et executandi at 319 Stateway, Welkom.
(3) The applicant and the respondent concluded a written Service Level Agreement
(SLA) in terms of which the applicant would develop a web-based document management
solution over a period of 36 months and for the amount of R9 936 000.00 for the
respondent. A dispute arose between the applicant and the respondent over the payment
of an amount of R5 464 800.00. The dispute resolution procedure provided for in the SLA
was the referral of the dispute to arbitration, that such hearing be held at Welkom and in
accordance with the rules of AFSA.
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[4] The applicant and the respondent agreed to refer the dispute to arbitration as it is
provided for in the SLA. Advocate Lance Friedman was appointed as an arbitrator.
[5) On 12 March 2024, a pre-arbitration meeting (the meeting) was convened virtually.
The respondent, despite being notified and having confirmed its availability for the meeting,
did not attend. There was no explanation for non-attendance. The minutes of the meeting
were sent via email to the respondent. It had been agreed at the meeting that the hearing
of the arbitration , as a cost-cutting measure, will be held virtually. The applicant furnished
the arbitrator and the respondent with the statement of claim. Nothing was forthcoming
from the respondent as it failed to deliver its statement of defence.
[6] The arbitration hearing took place virtually on 24 April 2024, as agreed in the
meeting. Once again, there was no appearance by and for the respondent, with no
explanation proffered. The arbitration hearing proceeded and an award was made in favour
of the applicant by default. The award was signed and published by the arbitrator in
Johannesburg on 13 May 2024.
[7] The applicant, armed with the award, approached this court and sough_t the
following relief:
'That an arbitration award made on 13 May 204 by arbitrator, Adv Lance Friedman in respect of
arbitration proceedings between the above stated parties, is made an order of the court in terms of
section 31 of the Arbitration Act 42 of 1965'.
[8] The respondent opposed the application . In the opposing affidavit the respondent ,
inter alia, raised two points in limine: first, that this court has no jurisdiction to confirm an
award obtained and issued in Johannesburg and, second, since there is a pending review
matter against this award, this court is precluded from hearing this application. The parties
agreed that the court should first decide the points in limine before dealing with the merits
of the application.
[9] The applicant asserted in its replying affidavit that the arbitrator was in
Johannesburg when he signed off and published the award. However, that alone cannot
be interpreted to mean the award was made in Johannesburg . The applicant averred that
the parties agreed in the SLA that the seat of any arbitration hearing shall be Welkom and
the situation was not altered by where the award was signed.
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(1 0] The facts of this matter are largely common cause between the applicant and the
responden t. It is not in dispute that:
(i) The arbitration hearing was conducted virtually, the respondent failed to attend the
hearing and by default an award was made in favour of the applicant.
(ii) The award was signed and published in Johannesburg by the arbitrator on 13 May
2024 and
(iii) The award in question is a subject to review in an application filed by the
respondent in the Gauteng Division of the High Court, Johannesburg. The respondent is
applying for the review and for the setting aside of the award as well as for the arbitration
hearing to start de novo. The application in terms of s 31 of Act 42 of 1965 was brought
whilst the review proceedings are pending.
Points in Limine
A. Jurisdiction of this court in terms of s 31 of Act 42 of 1965:
(12] '(1) An award may, on the application to a court of competent jurisdiction by any other
party to the reference after due notice by the other party or parties, be made an order of the court.'
(i) The wording of this section indicates that the court has the discretion to refuse to
make an award an order of the court.
(ii) Jurisdiction is the power vested in a court to adjudicate upon, determine and
dispose of a matter. This power is territorial and conferred to the court by s 21 of the
Superior Courts Act 1 0 of 2013, which provides:
'Persons over whom and matters in relation to which Divisions have jurisdiction.
(1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes
arising and all offences triable within, its area of jurisdiction and all other matters of which it may
according to law take cognizance" and has the power-.. .'.
(iii) The arbitrator did not seat in Welkom at any time during the arbitration processes
including the hearing. The applicant sat in its place of business at Klerksdorp during the
arbitration hearing. The arbitration award was signed and published at Johannesb urg.
Nothing connected the arbitration hearing and the award to Welkom.
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(iv) The applicant waited for the proverbial shoe to drop and now seeks to convenient ly
bet its bottom dollar on the dispute resolution arrangement provided for in the SLA.
(v) The dispute between the parties arose within the jurisdiction of this Court (not in
dispute), however the dispute has been decided and put to rest by the arbitrator. It is for
this reason that the facts that arose to the dispute are not an issue before the court. The
court must decide whether to confirm or not to confirm the award. The gist of these
proceedings is no longer a dispute between the parties, however an arbitration award
made by the arbitrator. My view is that the power of this court cannot be extended to the
subject matter that occurred beyond its territorial jurisdiction. This point in limine must be
upheld.
B. The application and the pending review of the arbitration award
(13] (i) The applicant argued that this court must confirm the arbitration award
despite the pending review application. The applicant's view is that it may take a year to
finalize the review application and the applicant cannot be held at ransom by the
respondent's review.application . The applicant labelled the respondent's conduct an abuse
of process, a delaying tactic and referred the court to the case of Diamond Mines (Pty) Ltd
and Others v Government of the Rebublic of South Africa.1
(ii) The respondent contended that the court is precluded from hearing this
application whilst there is pending review application. It referred the court to the following
decision amongst other decisions: Blue Marine (Pty) Ltd V CCMA and Others2 where it
was held:
'[15] It is. important to realise that once the award is made an order of the court the award, from
which such order was made, falls away. In other ~ords, the two instruments cannot co-exist
alongside each other. Therefore, upon an award being made an order of the court, there can be
no question again of application of review, aimed at reviewing and setting aside the same award.
By then, the award no longer exists. Any party who feels aggrieved by the award can then only
look for remedy to challenge the court order and not the award.'
(14] An unavoidable consequence of s 31 of the Act is that should the application
succeed, the award will be elevated to a court judgment and the award ceases to exist.
The court is not automatically excluded from confirming an award in terms of s 31 of the
1 Diamond Mines (Ply) Ltd and Others v Government of the Rebublic of South Africa 1999 (2) SA 279 (T).
2 Blue Marine (Ply) Ltd V CCMA and Others [2003] 9 BLLR 853 (LC).
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Act by a pending review application. The court has a discretion to either proceed with the
application or postpone the application pending the finalisation of the review application
and in so doing, consider potential prejudice .to either of the parties. My view that this point
in limine must be dismissed.
[15] In the circumstances I order as follows:
1. The respondent's first special plea is dismissed
2. The respondent's second special plea is upheld.
3. No cost order is made.
Appearances
For the Applicant:
Instructed by:
For the Respondent:
Instructed by: Adv N Jagga
JM Inc
Klerksdorp
c/o Phatsoane Henney Inc
Westdene
Bloemfontein
Mr Voyi
Voyi Inc Attorneys
Midrand
c/o EG Cooper Majiedt Inc
Westdene
Bloemfontein