1 JUDGM ENT
IN THE HI GH COURT OF SOUTH AFR ICA
GAUTENG DIV ISION. JO HANNESBURG
CASE NO: 099928 /2024
In the matter between
DATE : 26.08.2026
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES :NO
(3) REVISED
-SIGNATURE DATE 26 August 2026
10 PAUL'S HOMEMADE (PTY} LTD
and
App licant
LET'S DO ICE CREAM AND OTHERS Respondents
J U D G M E N T EX TE MPORE
WILSON J : In this matter, the app licant approaches me to
make an award issued by Mr Aucamp , sitting as an
arbitrator , made an order of th is court. That award was for
the payment of approximately R62 000 , be ing the
respondent's share of arbitration fees due in terms of an
20 arbitrat ion in it iated by the app licant under a franch ise
agreement between the parties.
When the applicant first referred the d ispute to
arbitrat ion , the respondent sought to object to the
arbitrator's jurisdict ion on the bas is that the arb itrator had
no power to determine certa in matters of importance to the
099928 /2024 _26082026 I jhk
JUDGMENT
099928/2024_ 26082026 / jhk
2
respondents and arguments the respondents wished to
make arising under the Consumer Protection Act 68 of 2008 .
The respondents took a fairly uncompromising view ,
in that they declined even to pa y the share of the fees that
they would have been required to pay under the arbitration
agreement. In order to address that stance, the applicant
applied to the arbitrator for a ruling on 30 September 2022.
The arbitrator purported , in response to that application , to
apply Clause 5.2 of the AFSA Domestic Rules for Expedited
Arbitration , which entitles the arbitrator to exclude from
10
arbitration any party that has not paid their share of the
arbitration fees . Having so ordered, the arbitrator then, on
19 October 2022, granted the applicant an order for the
payment of the respondents ’ share of the arbitrator' s fee.
That award is now sought to be made an order of court .
The respondents opposed the application to make the
award an order of court on the basis that the power the
arbitrator purported to exercise on 30 September 2022 was
in fact no power at all. The respondents say that the
arbitration agreement and the referral to arbitration bound
20
the parties on to AFSA's Domestic Arbitration Commercial
Rules – not to the Expedited Rules . This is also recorded in
Paragraph 2 of the arbitrator's 19 October 2022 award.
There is no serious dispute that the 19 October 2022
award was granted in the respondents’ absence, the
JUDGMENT
099928/2024_ 26082026 / jhk
3
respondents having been excluded from participation in that
leg of the arbitration in terms of the arbitrator's 30
September 2022 ruling . The respondents complain that the
power to exclude them from that leg of the arbitration
arises, if it arises at all, under Clause 5.2 of the Expedited
Ru les , not the Commercial Rules, and that is was the
Commercial Rules rather than the Expedited Rules that
were incorporated into the arbitration agreement.
In the absence of clause 5.2 of the Expedited Rules ,
the respondents say, the arbitrator had no jurisdiction to
10
exclude them from the leg of the arbitration leading up to
his 19 October 2022 award. The arbitrator having no
jurisdiction, the respondents say, his award should be
treated as void.
The applicable Supreme Court of Appeal authority in
this case draws a distinction between void and voidable
awards (see Vidavsky v Body Corporate of Sunninghill Villas
2013 (6) SA 345 (SCA) , paragraph 15) . An award made in
the absence of any jurisdiction to make it, whether in terms
of the Arbitration Act, the arbitration agreement or the rules
20
the parties agreed to, would, in my view, be an award that
is void from the outset and not merely voidable on
application. I think it also follows that, since the Expedited
Rules were of no application to the referral made in this
case, the power to exclude one of the parties or any of the
4 JUDGMENT
part ies from the arb itrat ion for non-payment of the
arbitrator's fees does not form part of the su ite of powers
that the arb itrator was entitled to exercise.
The 19 October 2022 award was made d irectly as a
result of the 30 September award , wh ich the arbitrator had
no jur isdiction to ma ke . I th in k it follows log ically that if the
arbitrator has no jurisdic tion to exclude one of the part ies
from the proceed ings before h im but nonetheless does so
and the n makes an second award in the ir absence, that
10 second award is also beyond the arbitrator's jurisd iction. In
those c ircumstances , I am requ ired to treat the second
award as void. If the award is treate d as vo id , it cannot be
made an order of this court.
For the reasons I have g iven , I conclude that the 19
October 2022 award is void and may not be made an order
of COLI rt.
Accord ingly , I will ma ke the follow ing order.
1. The applicat ion is d ismissed.
2. The appl icant will pay the costs of the appl icat ion ,
20 inc luding the costs of counsel , wh ich may be taxed on
Scale B.
099928 /2024 _26082026 I jhk
I
-WILSON, J
JUDGE OF THE HIGH COURT
26 August 2026