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[2026] ZAGPPHC 509
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South African Police Service Medical Scheme v Batsumi Management Solutions (Pty) Ltd and Others (2025-008858) [2026] ZAGPPHC 509 (20 May 2026)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2025-008858
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
DATE
20/5/2026
SIGNATURE
In the matter between:
SOUTH
AFRICAN POLICE SERVICE MEDICAL SCHEME
Applicant
and
BATSUMI
MANAGEMENT SOLUTIONS (PTY) LTD
THE
ARBITRATION FOUNDATION OF SOUTH AFRICA
MYRNA
GERICKE
RETIRED
JUSTICE SANDILE NGCOBO
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
JUDGMENT
VAN
DER WESTHUIZEN, J
[1] The
applicant applied, under the principle of Legality, for the review
and the setting aside of
the second respondent’s refusal to
accept the applicant’s notice of appeal against an award by the
fourth respondent.
The applicant contended that such refusal to
accept the notice of appeal was a breach of the second respondent’s
mandate
to administer the applicant’s appeal.
[2] The
first respondent was the party participating in the arbitration
proceedings and the third
respondent was the registrar of the second
respondent who allegedly made the impugned decision.
[3] The
applicant and the first respondent referred a contractual dispute,
emanating from a service
level agreement entered into between them,
to arbitration in accordance with the commercial rules of the second
respondent. Any
disputes that arose from that service agreement would
be subject to arbitration in accordance with the Domestic Commercial
Rules
of the Arbitration Foundation of South Africa.
[4] The
crux of the matter relates to whether the applicant and the first
respondent concluded an
agreement in writing that the award of the
arbitrator appointed would be the subject of an appeal.
[5] The
provisions of Article 22(1) of the AFSA Commercial Rules provides as
follows:
“
Where the parties have,
whether in terms of the arbitration agreement or otherwise, in
writing agreed that an interim award or the
final award of an
arbitrator or arbitrators shall be subject to a right of appeal the
following rules shall, save to the extent
otherwise agreed by them in
writing, apply.”
[6] It
is important to note that clause 25.9 of the Service Level Agreement
provides as follows:
“
Subject to the finalisation
of any review or appeal proceedings permitted under the rules of ASA,
the decision or award resulting
from the arbitration shall be final
and binding, and may be made an order of any court of competent
jurisdiction at the instance
of either Party to the Dispute. With
effect from the date of the arbitral award or, in case of the
settlement, neither Party shall
have any further right and/or claim
(including, without limitation, any right pursuant to subrogation)
against the other Party
in connection with or relating to the Dispute
in question.”
[7] The
applicant further relied upon the provisions of Article 22.8 which
provides as follows:
“
The nature of the appeal and
cross-appeal, and the powers of the appeal arbitrator of arbitrators
shall, save to the extent that
the written agreement between the
parties or this article 22 provides otherwise, be the same as if it
were a civil appeal and cross-appeal
to the Appellate Division of the
Supreme Court of South Africa.”
[8] The
applicant contended that the modern dispute resolution is
characterised by the principle of
party autonomy. Premised upon that
notion, the contention was that where the parties agreed in writing
in the Service Level agreement
to arbitrate any dispute thereunder,
they had agreed to an appeal process which included the process
provided for in Article 22
of the AFSA Rules. Accordingly, it was
contended by the applicant that AFSA was bound to administer that
process, and the latter’s
refusal to comply therewith,
constituted unlawful interference with the principle of party
autonomy and consequently the contractual
freedom to design their own
dispute resolution mechanism.
[9]
Clause 25 of the Service Level Agreement recorded the parties’
consent to private arbitration.
The provisions of that clause defined
the scope of private arbitration. The scope so agreed upon, related
to the application of
the AFSA Commercial Rules in respect of the
arbitration. The parties consented to the AFSA Rules applying when an
appeal against
the arbitration award would be permitted.
[10] Further in this
regard, the provisions of articles 12.10 and 22.1 of the AFSA Rules
find application. The
provisions of article 22.1 are recorded
earlier. Article 12.10 provides, in the relevant part thereof, that,
unless the parties
have in the arbitration agreement or otherwise
agreed that the award shall be subject to an appeal, the award shall
be final and
not subject to an appeal.
[11] From the
foregoing it is apparent that an arbitration award would be final and
bounding, unless the parties
had in writing agreed to an appeal
procedure in the arbitration agreement or otherwise.
[12] It is to be
noted that the first respondent in its request for arbitration to the
second respondent, included
a wish that the appeal procedure would be
included in the arbitration agreement. The second respondent, in its
acceptance of the
request for arbitration, drew the first
respondent’s attention to the provisions of article 28 of the
Arbitration Act that
both parties were obliged to agree in writing to
an appeal procedure to be included in the arbitration agreement. The
second respondent
thereafter forwarded the request for arbitration it
received from the fist respondent, including the correspondence
between it
and the first respondent, to the applicant. The latter did
not respond to the communication. At the required pre-arbitration
meeting
held, both the applicant and the first respondent confirmed
that the AFSA Rules would apply to the arbitration.
[13] Neither the
Service Level Agreement, nor the arbitration agreement, record in
writing an agreement between
the parties that the arbitration award
would be subject to an appeal process. All that either of those
documents contain is a recordal
that an appeal would only lie when
the parties had in writing so agreed. On the contrary, both
documents record that the
arbitration award would be final, and that
at the request of either party, it could be made an award of court.
[14] When the
applicant lodged its request for an appeal, the second respondent
requested, through the third respondent,
the documentation in which
the parties agreed in writing to an appeal process following on an
arbitration award from the applicant.
The applicant responded by
providing a copy of clause 25.9 of the Service Level Agreement which
is recorded earlier. The first
respondent responded by pointing out
that clause 25.9 of the Service Level Agreement was no agreement in
writing to have an appeal,
and further that no such document existed.
[15] The third
respondent advised the parties that, in the absence of an agreement
in writing to the right of
an appeal, the award was final and
binding.
[16] It follows from
all the foregoing, that the applicant had no right of appeal in
respect of the award. The
applicant’s request to the second
respondent for the management of an appeal, was ill founded and of no
consequence.
[17] The applicant
contended that the decision by the third respondent not to register
the request for the management
of an appeal, constituted a decision
in terms of PAJA, and thus reviewable. There is no merit in that
contention for what follows.
[18] When the
applicant enquired who took the decision not to register the appeal,
the third respondent advised
that no formal decision was made and
that she would on receipt of a formal request, direct such request to
the Secretariat. No
such formal request was received from the
applicant.
[19] It is important
to note that, when requested to provide documentation proving the
written agreement to a
right of appeal, none was forthcoming.
Furthermore, the relevant provisions in that regard, as recorded
earlier, clearly indicate
as a pre-requisite for a right to appeal an
arbitration award, was a written agreement to that effect. The
absence of such written
agreement required no “decision”
to be taken. It followed in law that no agreement existed for a right
of appeal.
[20] Consequently,
there is no decision to be reviewed in terms of the provisions of
PAJA. The application fails
on that basis.
[21] On a second
string to its bow, the applicant relied upon the principle of
Legality. That contention is premised
upon the ground that the
applicant was denied a fair process, which included an appeal process
as allegedly agreed upon in terms
of the arbitration agreement. In
that regard, the applicant misapprehends the specific wording of the
arbitration agreement, as
well as the AFSA Rules in that regard.
Applying the canons of construction and interpretation of the
agreements and the provisions
of the AFSA Rules, that contention is
unfounded and without merit.
[22] The applicant
further relies on the contention that AFSA performs a public function
and that the impugned
decision directly impacts upon the applicant’s
rights in terms of section 34 of the Constitution. There is no merit
in this
contention. AFSA performs a private function when it provides
an arbitration function. Its decisions do not constitute
administrative
action as defined in PAJA. Consequently, no rights of
the applicant in terms of section 34 of the Constitution have been
affected
or impacted upon to warrant an enquiry of Legality.
[23] It is to be
noted that the recordal by the third respondent that no appeal lies
as no agreement to that effect
was recorded in writing, is clearly a
clerical function, not an administrative function.
[24] It follows that
the applicant’s application for a review stands to be
dismissed.
[25] The first
respondent filed a counter application for an order that the
arbitration award of the fourth respondent
be made an order of court.
From what is recorded earlier, the parties agreed that the award of
the arbitrator could be made an
order of court at the instance of
either party. There is no reason why the first respondent’s
counter application in that
regard should not be granted.
[26] There remains
the issue of costs. There is no reason why the costs should not
follow the event. The first
respondent sought costs on a punitive
scale, such costs to include the costs consequent on the employment
of two counsel where
so employed. This matter was of sufficient
complexity to warrant the employ of two counsel. The second and third
respondents sought
costs on a party and party scale.
I grant the following order:
1. The
application for review is dismissed;
2. The
arbitrator’s award dated 24 October 2024 by the fourth
respondent, Honorable Justice Sandile
Ngcobo is made an order of
court;
3. The
applicant is to pay the costs of the first respondent, which include
the costs of the counter application,
on the scale of attorney and
client, such costs to include the costs consequent on the employment
of two counsel where so employed;
4. The
applicant is to pay the cost of the second and third respondents on a
party and party basis, such
costs to be taxed on Scale C of the
Uniform Rules of Court.
C J VAN DER WESTHUIZEN
JUDGE OF THE HIGH COURT
PRETORIA
On
behalf of Applicant:
C H J
Badenthorst SC
Instructed
by:
Maluleke
Inc.
On
behalf of First Respondent:
P G
Cilliers SC
M
Davids
Instructed
by:
Johan
van de Vyver Attorneys
On
behalf of Second and Third Respondents:
M
Mbikwa
Instructed
by:
Mkhabela
Huntly Attorneys
Date
of hearing:
12
March 2026
Date
of Judgment:
20
May 2026