BRICKHILL AJ:
Introduction
[1] This is an application for leave to appeal against the order and judgment that I
delivered in this matter on 2 September 2025. The facts are set out in my main
judgment and I do not repeat them.
[2] The main matter involved three applications, namely (i) an application by Tirhani
Travel & Tours (Pty) Ltd (“Tihrani Travel”) to have the arbitration award handed
down by Cassim SC on 18 November 2021 made an order of court in terms of
section 31(1) of the Arbitration Act 42 of 1965; (ii) a counter-application by
SAMWU to review and set aside the arbitration award; and (iii) a further counter-
application by SAMWU to review and set aside the Service Level Agreement
concluded by the parties on or around 29 June.
[3] I granted Tirhani Travel’s main application to make the arbitration award an order
of court and dismissed SAMWU’s two counter-applications, ordering SAMWU to
pay the costs.
[4] Although the application for leave to appeal delivered by SAMWU is framed in
the usual language of seeking leave in respect of the “whole judgment and
orders”, on the face of them the grounds of appeal set out in the application relate
to the main application to have the arbitration award made an order of court.
[5] The grounds for leave to appeal set out in SAMWU’s application for leave to
appeal for the most part concern its primary argument advanced to oppose the
main application. They rely on an order made by Mohammed AJ (as she then
was), after the arbitration award was handed down, setting aside as an irregular
step a notice of withdrawal of the action instituted in this court by Tirhani Travel
against SAMWU in respect of the same claim.
[6] The grounds of appeal all relate to that issue and the order of Mohammed AJ,
and are all in the nature of legal arguments. Without restating the full facts, which
are more fully set out in my main judgment, it is helpful to recall the sequence of
material events relating to this court order:
a. Tirhani Travel originally instituted action proceedings in this court.
b. It reconsidered its position and instituted arbitration proceedings in terms of
its agreement with SAMWU. It delivered a notice of withdrawal of the High
Court action but did not tender costs in the notice.
c. SAMWU delivered a notice of irregular step.
d. SAMWU enrolled the irregular step application in this court and the
arbitrator initially postponed the arbitration proceedings.
e. When the application was not heard on the set-down date, the arbitrator
informed the parties that he would conduct the arbitration unless any party
obtained a court order interdicting him from doing so. SAMWU did not seek
an interim interdict.
f. The arbitration proceedings ran, notwithstanding SAMWU’s objection, and
the arbitrator delivered an arbitration award.
g. After the award was delivered, SAMWU obtained an order from Mohammed
AJ on the unopposed roll setting aside the notice of withdrawal of the action
as an irregular step on the basis that it did not include a tender of costs.
[7] The grounds of appeal set out in the application for leave to appeal are as follows:
a. First, that the court erred in holding that the order of Mohammed AJ had no
effect on the arbitration proceedings in light of the facts and having regard
to section 165 of the Constitution;
b. Second, that the court erred in holding that the order of Mohammed AJ had
no effect on the arbitration award;
c. Third, that the court erred when “separating the arbitration award from the
order of Mohammed AJ and making it [the order] a toothless document”;
d. Fourth, that the court misunderstood the basis for the order of Mohammed
AJ and its content;
e. Finally, that the court erred because the arbitrator was aware that the Rule
30 application was pending, the arbitrator had “directed that a court order
must be obtained” and the arbitrator therefore acted against his own
directive.
[8] There is substantial overlap in the five grounds of appeal and SAMWU does not
address the grounds separately in its heads of argument, treating them rather as
all part of a composite argument in support of leave to appeal. It is nevertheless
appropriate to address each ground in turn before considering them
cumulatively.
First ground of appeal
[9] The first ground of appeal is that the court erred in holding that the order of
Mohammed AJ had no effect on the arbitration proceedings, despite the
communications of the arbitrator to the parties.
[10] SAMWU does not contend that any of the facts set out in the judgment entail an
error of fact. The first ground of appeal appears to be based on an argument that
the order of Mohammed AJ had legal effect on the arbitration proceedings which
the arbitrator and this court ignored.
[11] SAMWU does not address its central difficulty on the facts, namely that the
arbitration proceedings were already concluded and the arbitration award issued
before Mohammed AJ made the Rule 30 order setting aside Tirhani Travel’s
notice of withdrawal of the High Court action. The order of Mohammed AJ did
not exist when the arbitrator conducted the arbitration and delivered the award.
It therefore could never affect the arbitration proceedings at that time.
[12] Could the order of Mohammed AJ be argued to retrospectively affect the
arbitration proceedings?
[13] The order of Mohammed AJ did nothing more than set aside Tirhani Travel’s
notice of withdrawal of the action in the High Court, and only on the basis that it
had not tendered costs. The order was not directed at the arbitration proceedings
or award at all, either as an interdict or review. It could therefore not have any
retrospective effect directly on the arbitration proceedings or award.
[14] In the c ircumstances, there is no reasonable prospect of success on the first
ground.
Second ground of appeal
[15] The second ground of appeal is that the court erred when concluding the order
of Mohammed AJ had “no impact on the arbitration award”. The second ground
of appeal largely restates the first ground of appeal. SAMWU again invokes the
communications between the arbitrator and the parties, in particular his
statement advising, “Please obtain a court order if any party desires to avoid a
hearing”. SAMWU also refers to section 165(5) of the Constitution, which vests
the judicial authority of the state in the courts.
[16] SAMWU appears to contend that the arbitrator, by proceeding with the arbitration
despite SAMWU informing him of pending Rule 30 proceedings to set aside the
notice of withdrawal, violated section 165 of the Constitution and that this
impugns the arbitration award.
[17] The arbitrator informed SAMWU that it should interdict the proceedings, failing
which he would proceed. It did not do so and instead absented itself. There was
no court order preventing the arbitrator from proceeding and he bore a statutory
duty to discharge his functions as arbitrator.
[18] For these reasons and the reasons given in relation to the overlapping first
ground of appeal, this ground also has no reasonable prospect of success.
Third ground of appeal
[19] The third ground of appeal is framed as the court having erred, SAMWU argues,
in ‘separating’ the arbitration award from the order of Mohammed AJ. SAMWU
argues under this ground that the order of Mohammed AJ, though made after the
arbitration award, had the effect of reversing the entire process of withdrawal of
the High Court action and reviving the action proceedings. SAMWU argues that
the order of this court then created an impression that court orders are not
binding or can be flouted with impunity. This, SAMWU argues, threatens the rule
of law and the “future of the judiciary”.
[20] The argument is meritless. The order of Mohammed AJ was made after the
arbitration award was handed down, and was therefore not ignored by the
arbitrator. Further, all that the order did was to set aside Tirhani Travel’s notice
of withdrawal of the action, and only on the basis that it had not tendered costs.
[21] SAMWU signed a valid agreement committing to refer disputes with Tirhani
Travel to arbitration. SAMWU does not challenge that finding in its application for
leave to appeal, therefore accepting (correctly) that Tirhani Travel had the right
to refer the dispute to arbitration, as it did.
[22] The hyperbolic claims that the order of this court threatens the rule of law and
the very future of the judiciary take matters no further. This is not a matter in
which a prior court order has been ignored by the parties. It is entirely
distinguishable from the authorities on which SAMWU relied, Pheko
1 and
Tasima.2 Pheko involved an application to hold the respondent municipality and
its officials in contempt of an earlier order made by the Constitutional Court.
Tasima, similarly, involved alleged non-compliance with an earlier court order
directing that administrative action be implemented. It has no application in the
current context where the court order was made after the arbitration award. It
was not ignored by the arbitrator, nor by Tihrani Travel, because it did not exist
when the arbitration proceedings were conducted and the arbitration award was
handed down.
[23] In any event, it is worth restating that the order of Mohammed AJ did not affect
the arbitration proceedings at all. It did not interdict or set aside the arbitration
process or outcome, and did not decide that the dispute must be litigated in the
process or outcome, and did not decide that the dispute must be litigated in the
High Court. All it did was to set aside a notice of withdrawal of action because
1 Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2) [2015] ZACC 10; 2015 (5) SA 600
(CC).
2 Department of Transport and Others v Tasima (Pty) Ltd [2016] ZACC 39; 2017 (2) SA 622 (CC).
costs were not tendered. At most, it revived SAMWU’s procedural entitlement to
seek its wasted costs of the abandoned High Court proceedings.
[24] SAMWU developed this argument further in argument, contending that once an
order setting aside an irregular step has been set aside, the other party may take
no further steps until it has rectified the irregularity. SAMWU argues further that
Tirhani Travel took a further step by instituting the application to have the
arbitration award made an order of court, ignoring the Rule 30 order. In response,
Tirhani Travel submitted that the principle under Rule 30( 5) applies to taking
further steps in the same proceedings, in this matter in the High Court action and
that in any event the application to have the arbitration award made an order of
court was instituted before Mohammed AJ made the order.
[25] Tirhani Travel did not take any further steps in the High Court action following
Mohammed AJ’s order. There is accordingly no basis for this additional complaint
by SAMWU.
[26] There is no reasonable prospect that a court on appeal could find differently on
this ground.
Fourth ground of appeal
[27] The fourth ground of appeal largely restates the third ground. SAMWU argues
that this court misunderstood the basis and content of the order of Mohammed
AJ, which SAMWU argues “revived the entire process and not the issue of costs”.
[28] The unstated premise of SAMWU’s argument appears to be that, once Tirhani
Travel instituted proceedings in the High Court, it could not withdraw and refer
the dispute to arbitration. There is no authority for such a proposition. The other
unstated premise appears to be that the order of Mohammed AJ, reinstating the
action proceedings as SAMWU would have it, retrospectively invalidates the
arbitration award that had in the meantime been handed down. SAMWU does
not explain how reviving the action proceedings has any legal effect on an
arbitration award already handed down.
[29] Could the order be argued to provide a legal obstacle to this court making the
arbitration award an order of court? SAMWU has not identified any section of the
Arbitration Act that would preclude making the arbitration award an order of court
in the circumstances.
[30] Even assuming, for the sake of SAMWU’s argument, that the order of
Mohammed AJ retrospectively revived the action proceedings, so that in law the
action in this court was pending when the arbitration proceedings ran, it does not
follow that SAMWU was entitled to insist that the arbitration be abandoned or
stayed and that the dispute be decided in the High Court. SAMWU had agreed
to arbitration and does not challenge that finding in this application for leave to
appeal. A party is not entitled as of right to a stay based on a plea of lis alibi
pendens. The court (or in this case, arbitrator) has a discretion to stay the
proceedings or not, and may allow the action to proceed if it is just and equitable
and the balance of convenience favours it.
3
[31] Here, where the parties had agreed to a rbitrate their disputes, the High Court
proceedings were at the early stages of pleading, and the claimant confirm ed
that they had abandoned those High Court proceedings, it would not have been
just and equitable for the arbitrator to stay the arbitration and insist that the
parties return to this court. In any event, those are not the facts. The High Court
action had been withdrawn when the arbitration ran and Tirhani Travel had
unambiguously conveyed its election to arbitrate the dispute and aba ndon the
court action.
[32] This ground of appeal, too, lacks prospects of success.
Fifth ground of appeal
[33] The fi fth ground of appeal is effectively that the arbitrator ignored his own
directive. In its heads of argument, SAMWU relied on an e-mail from the arbitrator
on 12 August 2021 in which he stated, “the parties must resolve the High Court
matter”.
on 12 August 2021 in which he stated, “the parties must resolve the High Court
matter”.
3 Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC 2013 (6) SA 499 (SCA) para 36.
[34] SAMWU appears to read this directive as a final determination by the arbitrator
that the parties must resolve the Rule 30 application, failing which he would not
conduct the arbitration. There is no basis on the facts to understand this to have
been the arbitrator’s decision. It is clear that he initially postponed to enable
SAMWU to move the Rule 30 application but without making any final
determination or ‘directive’ that he would suspend the arbitration proceedings
indefinitely until the Rule 30 application was decided.
[35] There is also no plausible argument that the arbitrator acted unlawfully. The
arbitrator at that stage afforded SAMWU an opportunity to have its Rule 30
application decided and postponed the proceedings. When its Rule 30
application was not heard and instead was removed from the roll because it had
been set down on the incorrect roll, the arbitrator resumed and concluded the
arbitration proceedings. His conduct in doing so was lawful, reasonable and
indeed appropriate in light of the duties of an arbitrator under the Arbitration Act.
[36] On 28 October 2021, the arbitrator informed the parties to “obtain a court order
if any party desires to avoid a hearing”, conveying that unless interdicted, he
would now conduct the arbitration proceedings. This is a common and
appropriate approach of an arbitrator, enjoined by the Arbitration Act or another
law to conduct and complete arbitration proceedings, who informs parties that
they should secure an interdict if they wish to stay the proceedings.
[37] To the extent that SAMWU invokes this later ‘directive’ of 28 October 2021, the
arbitrator also clearly did not act against it. To the contrary, he did exactly what
this statement indicated: in the absence of a court order interdicting the
arbitration, he conducted the arbitration proceedings.
[38] The arbitrator did not make any directive binding himself not to proceed and did
not breach any of his own directives as argued by SAMWU. This ground of
not breach any of his own directives as argued by SAMWU. This ground of
appeal has no prospects of success.
Cumulative assessment
[39] The test for leave to appeal is governed by section 17 of the Superior Courts Act
10 of 2013. SAMWU seeks leave on the basis both that the appeal would have
a reasonable prospect of success in section 17(1)(a)(i) and on the basis that
there are compelling reasons to grant leave under section 17(1)(a)(ii). The court
“may only” grant leave if of the opinion that these jurisdictional facts are present,
namely that the appeal “would” have a reasonable prospect of success or that
there is another compelling reason why the appeal should be heard.4 I need not
decide whether the introduction of ‘would’ in the Superior Courts Act introduced
a stricter test than previously applied under the Supreme Court Act 59 of 1959.5
Nothing turns on it.
[40] In a recent judgment in this division, Friedman AJ held:
Of course, it is human nature to cling to the correctness of one’s
views. But if rational humans could not be persuaded by argument,
the whole system of litigation would be pointless. It is a duty of a judge
(or acting judge) when deciding whether to grant leave to appeal to
have the humility to realise when his or her findings are subject to
reasonable disagreement, and to approach the matter as objectively
as possible. Good judges, in a sensible legal system, should easily be
able to identify which points are arguable and which are not. Just as,
I dare say, good people, in a sensible society, should be able to take
a position while recognising the reasonableness (or
unreasonableness) of the differing views of others.6
[41] I have borne this salutary injunction in mind. I have given the application for leave
to appeal careful consideration, assessing each ground of appeal in its best light
and considering their cumulative effect with a view to assessing the possibility
that another court could come to a different conclusion.
4 See Mont Cheveux Trust (IT) v Tina Goosen, unreported decision of the Land Claims Court, case no
LCC14R/2014 dated 3 November 2014 and see Van Loggerenberg Erasmus: Superior Court Practice
RS 5, 2025, D-103 to D-105 and the cases cited at fn 8.
RS 5, 2025, D-103 to D-105 and the cases cited at fn 8.
5 MEC for Public Works, Eastern Cape v Ikamva Architects CC 2023 (2) SA 514 (SCA) para 3.
6 Baphalaborwa 72 Construction and Civil Engineering CC v T and L C ivil Electrical Contractors CC
[2024] ZAGPJHC 1046 para 3.
[42] Equally, however, judges bear a duty not to grant leave to appeal if a matter
bears no reasonable prospect of success, as doing so benefits neither the parties
nor the administration of justice.
[43] I conclude that there is no ground advanced by SAMWU on which the appeal
would have a reasonable prospect of success. Nor is there any other compelling
reason to grant leave. SAMWU has not referred the court to any conflicting
judicial decisions or other compelling reason to grant leave.
[44] The parties voluntarily concluded an arbitration agreement, the validity of which
is not challenged in this application for leave to appeal. Tirhani Travel was
entitled to refer the dispute to arbitration and to abandon the High Court claim
that it had initiated in preference for arbitration under that agreement. SAMWU’s
only remaining potential entitlement was to wasted costs in the High Court , an
issue that is not before me. Setting aside the notice of withdrawal of the High
Court action for failure to tender costs, after the arbitration award was made,
provided no basis retrospectively to undo the arbitration award.
[45] Costs appropriately follow the result, and I grant those costs on the same scale
as in the main matter, being Scale B, for the reasons given in the main judgment.
[46] The following order is granted:
1. The application for leave to appeal is dismissed.
2. The applicant is ordered to pay the respondent’s costs including the
costs of counsel on Scale B.
___________________________
J BRICKHILL
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
This judgment is handed down electronically by circulation to the parties or their legal
representatives by email, by uploading it to the electronic file of this matter on Caselines, and
by publication of the judgment to the South African Legal Information Institute. The date for
hand-down is deemed to be 21 November 2025.
DATE OF HEARING: 28 October 2025
JUDGMENT SUBMITTED FOR DELIVERY: 21 November 2025
APPEARANCES:
For the Applicant: Mr A Mayet (attorney with rights of appearance)
Instructed by Mayet Attorneys Inc
For the Respondent: Adv BM Khumalo, instructed by Dlamini Legal Inc