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[2026] ZAGPJHC 1001
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Shell Retailer Council v Shell Downstream South Africa (Pty) Ltd ( (2023/132537) [2026] ZAGPJHC 1001 (31 August 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
CASE
NO:
2023/132537
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
In the matter between:-
SHELL
RETAILER
COUNCIL
Applicant
and
SHELL
DOWNSTREAM SOUTH AFRICA (PTY) LTD
Respondent
IN RE:
THE
ACTION BETWEEN:
SHELL
RETAILER
COUNCIL
Plaintiff
and
SHELL
DOWNSTREAM SOUTH AFRICA (PTY) LTD
Defendant
LEAVE TO APPEAL
(JUDGMENT)
ALLEN AJ
INTRODUCTION
[1]
This is an application for leave to appeal
against the whole of my judgment and orders handed down on 26 May
2026. Applicant seeks
leave to appeal to the Supreme Court of Appeal,
alternatively, the Full Bench of this Court.
[2]
In my judgment the applicant's main action
for dispute resolution was stayed and the disputes between the
parties were referred
to dispute resolution by way of arbitration in
terms of
Section 6
of the
Arbitration Act, 42 of 1965
.
BACKGROUND
[3]
The grounds of appeal are that I erred
and/or misdirected myself in fact or law in one or more of the
material respects set out
in the application for leave to appeal.
[4]
In this application applicant alleges
numerous grounds for the said application and raised seventeen (17)
grounds of appeal and
thirty-eight (38) points wherein I failed to
find, erred and/or misdirected myself. Nothing new has been raised by
the applicant,
I have dealt with most, if not all, of the issues
raised by the applicant and it is not necessary for me to repeat
those in full.
[5]
This application is against my judgment and
order in terms of
section 17
(1)(a)(i) and
17
(1)(a)(ii) of the
Superior Courts Act, 10 of 2013
. It is applicant's case that there
are inherent constitutional, judicial, legal, industry and wide
public interest and importance
in the claims and the relief that form
the subject matter of the applicant's action and “that another
court
may
come to a different conclusion to the one reached by the court of
first instance.
”
(Own emphasis).
[6]
For the sake of completeness, I will deal
briefly with some of the points raised.
DISCUSSION
[7]
The
order under appeal is an interlocutory order made in the exercise of
my discretion under
Section 6(2)
of the
Arbitration Act
[1]
.
In addition, my judgment rests on more than one independent and
self-standing ground and applicant should demonstrate a reasonable
prospect of success on each such ground to disturb the result. The
relief is pursued representatively at the instance of applicant’s
members.
[8]
Some
of the points are that respondent breached its identified statutory
obligations, the mandatory orders directing respondent
to make the
disclosure the legislation requires, declarations that the specified
standard for contractual terms are in conflict
with the Consumer
Protection Act(“CPA”)
[2]
,
alternatively unfair, unreasonable or unjust (considering the
provisions of the Petroleum Products Act (“PPA”)
[3]
and are consequently void, invalid, unenforceable, severed or deleted
at the instance of the relevant member. It is also to interdict
respondent from relying upon or enforcing the impugned terms and
conduct and from including such terms in any franchise agreement
concluded, renewed or extended in future.
The Test
[9]
The traditional test in deciding whether
leave to appeal should be granted was whether there is a reasonable
prospect that another
court may come to a different conclusion to
that reached by me, as averred by applicant. This approach has now
been codified in
the
Superior Courts Act.
[10
]
In terms of
Section 17
of the
Superior Courts Act, 10 of 2013
:
“
(1) Leave to
appeal may only be given where the judge or judges concerned are of
the opinion that-
(a)
(i) the appeal would have a reasonable
prospect success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments
on the matter under consideration;
(b)
…. “
[11]
The word
“would” in
Section 17(1)(a)(i)
of the
Superior Courts Act
was
discussed in the matter of
Mont
Chevaux Trust v Tina Goosen & 18 Others
[4]
as per
Bertelsman J,
held
as follows: “I
t
is clear that the threshold for granting leave to appeal against the
judgement of a high court has been raised in the new Act.
…The
use of the word “would” in the new statute indicates a
measure of certainty that another court will differ
from the court
whose judgment is sought to be appealed against
.”
[5]
[12]
T
he
learned judge in the
Mont
Chevaux Trust
matter,
supra, indicated that the word “would” should include and
be interpreted as a "measure of certainty”
that another
court could come to another conclusion. “Measure of certainty”
should not be interpreted that another
court will come to a
different
conclusion
as a probability of success.
[6]
[13]
The
courts as far back as 2013 in the
Mgezeni
Gasbat Nxumalo v The National Bargaining Council for the Chemical
Industry (NBCCI) and Others
[7]
summarized
the approach one should follow in determining whether to allow an
application for leave to appeal having due regard to
the wording of
Section 17(1)(a)(i)
of the
Superior Courts Act:
“
>
[12]…[3]
The traditional formulation of the test that is applicable in an
application such as the present requires the court
to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the
judgement that is
sought to be taken on appeal. As the respondents observe, the use of
the word “would” in
section 17(1)(a)(i)
are indicative of
a raising of the threshold since previously, all that was required
for the applicant to demonstrate was that
there was a reasonable
prospect that another court might come to a different conclusion.”
[14]
“
Reasonable prospect of success
”
was discussed in the matter of
MEC for
Health, Eastern Cape v Mkhitha and Another
(1221/2015)
[2016] ZASCA 176
(25 November 2016)
at
para 17
:
“
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.”
[15]
The statutory prerequisite derived from
section 17(1)(a)(i)
of the
Superior Courts Act, is
the prompt
resolution of disputes where there is a reasonable prospect that the
factual matrix could receive a different treatment
or where there is
some legitimate dispute of law which would allow another court to
come to a different conclusion.
[16]
In
Ramakatsa
and Others v African National Congress and Another
(724/2019)
[2021] ZASCA 31
(31 March 2021)
at
para 10 the court expressed itself as follows on “reasonable
prospects of success” as provided for in
Section 17(1)(a)
of
the
Superior Courts Act:
“…
.
The test of reasonable prospects of success postulates a
dispassionate decision based on the facts and the law that a court
of
appeal could reasonably arrive at a conclusion different to that of
the trial court. In other words, the appellants in this
matter need
to convince this court on proper grounds that they have prospects of
success on appeal. Those prospects of success
must not be remote, but
there must exist a reasonable chance of succeeding. A sound rational
basis for the conclusion that there
are prospects of success must be
shown to exist”
.
[17]
I
n the case of
S v Smith
2012
(1) SACR 567 (15 March 2011)
Plasket AJA
(Cloete JA and Maya JA concurring) held as follows
at para 7:
“
What the test of reasonable prospects of
success postulates is a dispassionate decision, based on the facts
and the law, that a
court of appeal could reasonably arrive at a
conclusion different to that of the trial court. In order to succeed,
therefore, the
appellant must convince this court on proper grounds
that he has prospects of success on appeal and that those prospects
are not
remote but have a realistic chance of succeeding. More is
required to be established than that there is a mere possibility of
success,
that the case is arguable on appeal or that the case cannot
be categorised as hopeless. There must, in other words, be a sound,
rational basis for the conclusion that there are prospects of success
on appeal”.
[18]
In the
judgment of
Notshokovu
v S
[8]
at para 2 the SCA remarked that an appellant now faces a higher and a
more stringent threshold, in terms of the
Superior Courts Act 10 of
2013
compared to that under the provisions of the repealed Supreme
Courts Act 59 of 1959.
[19]
I agree that there must be sound, rational, and compelling reasons
that there are prospects of success on appeal before
leave to appeal
can be granted.
Applicant’s case is that
another court may come to a different conclusion.
[20]
In
Songono v
Minister of Law and Order
1996
(4) SA 384
(E)
it was stated at
385F-386B:
“
I am not aware of any
judgment dealing specifically with grounds of appeal as envisaged by
Rule 49(1)(b); however, Rule 49(3) is
couched in similar terms and
also requires the filing of a notice of appeal which shall specify
'the grounds upon which the appeal
is founded'. In regard to that
subrule it is now well established that the provisions thereof are
peremptory and that the grounds
of appeal are required, inter alia,
to give the respondent an opportunity of abandoning the judgment, to
inform the respondent
of the case he has to meet and to notify the
Court of the points to be raised. Accordingly, insofar as Rule 49 (3)
is concerned,
it has been held that
grounds of appeal are bad if they are so widely expressed that it
leaves the appellant free to canvass every
finding of fact and every
ruling of the law made by the court a quo, or if they specify the
findings of fact or rulings of law
appealed against so vaguely as to
be of no value either to the Court or to the respondent, or if they,
in general, fail to specify
clearly and in unambiguous terms exactly
what case the respondent must be prepared to meet
- see, for example,
Harvey v Brown
1964 (3) SA 381
(E)
at 383;
Kilian v Geregsbode, Uitenhage
1980 (1) SA 808
(A)
at 815 and Erasmus Superior Court Practice B1-356-357 and the various
authorities there cited.
“
It
seems to me that, by a parity of reasoning,
the
grounds of appeal required under Rule 49(1)(b) must similarly be
clearly and succinctly set out in clear and unambiguous terms
so as
to enable the Court and the respondent to be fully and properly
informed of the case which the applicant seeks to make out
and which
the respondent is to meet in opposing the application for leave to
appeal
.
Just as Rule 49(3) is peremptory in that regard, Rule 49(1)(b) must
also be regarded as being peremptory. In my view the lengthy
and
rambling notice of appeal filed in casu falls woefully short of what
was required. Mr Bursey suggested that grounds of appeal
could be
gleaned from the notice but that is not the point -
the
point is that the notice must clearly set out the grounds and it is
not
for
the Court to have to analyse a lengthy document in an attempt to
establish what grounds the applicant intended to rely upon
but did
not clearly set out. On this basis alone the application seems to me
to be fatally defective and must be dismissed.
”
[9]
(Emphasis added)
[21]
In the instant case the lengthy application also fell short of what
was required.
[22]
In
Doorewaard
and Another v S
(CC33/2017)
[2019]
ZANWHC 25
(23
May 2019)
,
prolixity in grounds of appeal was deprecated where Hendricks J (as
he then was) said:“
[3]
The
law governing a notice of appeal (and also notice of application for
leave to appeal) is trite. The grounds of appeal in a notice
of
application for leave to appeal must be clearly and succinctly set
out in unambiguous terms so as to enable the Court and the
respondent
to be fully and properly informed of the case which the applicant
seeks to make out and which the respondent is to meet
in opposing the
application for leave to appeal
.
The notice should not contain arguments. Therefore heads of argument
must also be filed and served in which the points to be argued
will
be set out in much more detail.”
(Emphasis
added)
[23]
In
Hing and
Others v RAF
2014 (3) SA 350
(WCC)
the following was stated on
page 353:
“
[4] The explanation is
unacceptable.
The application for leave
to appeal had listed 65 grounds on which the judge a quo was alleged
to have 'erred and misdirected himself'
.
As the respondent's counsel justifiably observed,
a
number of those grounds were so vaguely formulated as to be of little
or no assistance in meaningfully defining the bases of the
intended
appeals.
In any event it should have
been apparent to the appellants that the learned acting judge could
not possibly have intended his
words to be taken literally. The
effect of the notice of application for leave to appeal was to
suggest that he had misdirected
himself at every turn in making any
findings adverse to their claims. In the context of his detailed and
fully reasoned judgment,
it could not reasonably have been assumed by
the appellants or their legal representatives that by granting leave
to appeal in
the terms he did, the judge meant to be understood to be
acknowledging that such wide-ranging error and misdirection on his
part
might reasonably be established on appeal.
On
the contrary, the manifestly indiscriminate formulation of the
grounds on which the application for leave to appeal was brought
brings to mind the observation of a US Appeals Court judge that when
he sees 'an appellant's brief containing seven to ten points
or more,
a presumption arises that there is no merit to any of them
”.(Emphasis
added)
[24]
In the instant case I failed to find, erred
and/or misdirected myself on 38 points.
[25]
Grounds 1 to 5 and 14 contend that
respondent failed to meet the jurisdictional requirements of
Section
6(1)
of the
Arbitration Act. In
my judgment, I exercised my
discretion under
Section 6(2)
to stay the proceedings to the extent
that if the
Section 6(1)
requirements were not met, clause 29, the
CPA, the PPA,
Section 6(2)
and my discretion under
Rule 41A
and the
Compulsory Mediation Directive of this Court made it in the interests
of justice to stay the action pending the outcome
of the arbitration
proceedings.
[26]
In the matter of
Crompton
Street Motors CC t/a Wallers Garage Service Station v Bright Idea
Projects 66 (Pty) Ltd t/a All Fuels
2022 (1) SA 317
(CC)
it was said:”
[33]
A special plea for arbitration is one of several dilatory pleas and
can be included in pleadings. Generally, when a special
plea is
raised, all the defences on which the defendant intends to rely must
be raised at the same time. This is so because, should
the special
plea fail, there would be no further opportunity to plead over on the
merits. There is no objection to pleading a special
defence in the
course of the plea, with or without a special heading.
[34]
Therefore, the inclusion of the request for a stay of proceedings in
the applicant's conditional counter-application and as
part of the
answering affidavit did not render the application defective. The
High Court erred when it considered the first option
and omitted to
consider the second one as set out in
PCL Consulting.
[35]
Fortunately for the applicant, the High Court did not regard its
finding that the application did not comply with
s 6(1)
as the end of
the matter, as it went on to consider the merits of the stay
application in terms of
s 6(2).
Therefore, what must now be
considered is the scope of the High Court's discretion when
considering whether to grant a stay pending
arbitration and whether
the High Court in this matter exercised that discretion judicially.
[41]
Section 6(2)
of the
Arbitration Act allows
a court to stay
proceedings 'if [upon application in terms of
s 6(1)]
the court is
satisfied that there is no sufficient reason why the dispute should
not be referred to arbitration in accordance with
the agreement'. The
language of
s 6(2)
directs a court acting under that section to stay
proceedings where such an application is made unless sufficient
countervailing
reasons exist for the dispute not to be referred to
arbitration. The words 'no
sufficient
reason
why the dispute
should
not
be
referred to arbitration' denote that the standard position is that a
stay should be granted upon request. The onus of satisfying
the court
that the matter
should
not
be
referred to arbitration and instead heard by the High Court is on the
party who instituted the legal proceedings.
[10]
In
Universiteit
van Stellenbosch
[11]
the then Appellate Division held that, when a court is faced with a
stay application, the discretion to refuse arbitration
in the
circumstances should be exercised judicially, and only when a 'very
strong case' has been made out.
[12]
This high threshold for refusal is because the party who does not
want the matter referred to arbitration 'is seeking to
deprive the
other party of the advantage of arbitration to which the latter is
entitled'.
[64] This matter is a
cautionary tale to both retailers and wholesalers in the petroleum
industry to approach the Controller without
undue delay once a party
suspects that there are unfair or unreasonable contractual practices.
In this case, while the High Court's
analysis failed to consider the
importance of the
s 12B
arbitral process in light of
Business
Zone
, it cannot be said that the High Court's exercise of
discretion fell outside the ambit of
s 6(2)
of the
Arbitration Act
and
the 'sufficient reasons' requirement, such that the discretion
was not exercised judicially. It is not for this court to say whether
the High Court came to a right or wrong conclusion when exercising
its discretion, but whether it was influenced by wrong principles
of
law or fact. The High Court used the 'sufficient reasons' test in
s
6(2).
It considered countervailing factors based on the facts before
it, which in its assessment amounted to sufficient reasons to refuse
a stay. The countervailing factors were sufficient. Accordingly,
there is no basis to set aside the decision of the High Court
to
refuse the stay application. It follows that the appeal must be
dismissed.”
[27]
In
my judgment, I found that applicant had not discharged its onus under
Section 6(2)
why the disputes ought not to be referred to
arbitration.
[13]
[28]
Ground 6 is that I erred in not finding
that there was no privity of contract between applicant and
respondent, applicant enjoyed
no benefits, rights or obligations
under the franchise agreements, “was not a party” to the
relevant arbitration provisions
contained in the franchise
agreements, was not litigating in a “representative capacity”
and was litigating in its
own name in terms of its constitutional
mandate and accompanying election/discretion.
[29]
In
my judgment, I relied on applicants' particulars of claim,
constitution and members' resolutions.
[14]
Applicant brought the action in a representative capacity and a
mandate authorizing it to conduct arbitration and litigation
proceedings
against respondent. This is not inconsistent with
Section
1
of the
Arbitration Act which
defines a party to include a
representative recognized by law of a party to an arbitration
agreement. Applicant elected to sue
in a representative capacity and
the duty to arbitrate is also in terms of its mandate. Applicant's
right to litigate is asserted
in the contractual arbitration
provisions which bounds applicant as a representative litigant on
behalf of its members.
[30]
Grounds
7 and 9 contend that respondent took another step in the proceedings
with its reply to the
Rule 41A
notice and its
Rule 7
notice and
thereby disqualifying it from the relief it sought. The
Rule 41A
notice is a separate dispute resolution mechanism. Applicant's notice
was in any event inadequate and irregular and a reply thereto
cannot
be a step advancing litigation.
[15]
[31]
The
Rule 7
notice deals with the authority
of applicants' attorneys and not the merits or correctness of the
court proceedings. In my judgment
I found that even if the respondent
has not complied strictly with
Section 6(1)
it does not preclude
reliance on my discretion exercised in terms of
Section 6(2).
[32]
In
the matter of
Universiti
Malaya v ESA Jurutera Perunding SDN BHD
[2026]
5 MLRA 1,
a Civil Appeal No: 01(i)-20-07-2024(W) of 14 May 2026, Federal Court
of Malaysia, an application was also brought for a stay of
court
proceedings pending arbitration. In this matter the taking of other
steps in the proceedings was also considered and more
specifically a
request for an extension of time to file a defence and a notice to
produce documents. The court held:”
[131] …
.
Guided
by the principles laid down in
Yeo
Eng Lam
,
a necessary but peripheral application or action that does not touch
on the merits of the substantive dispute does not constitute
a step
in the proceedings. The Notice to Produce Documents cannot be
classified as pleadings within the ambit of limb (b) of
Sanwell
.
[16]
Rather, it falls within limb (c) of
Sanwell
.
Additionally, the nature of a Notice to Produce Documents is to
enable the inspection of documents referred to in the pleadings.
It
is, though not an application, purely peripheral to the substantive
disputes between the parties and does not advance the merits
of the
case in any manner. As made clear by the Defendant in its letter
dated 8 December 2022 and
Affidavit
in
Reply affirmed on 4 January 2023 in response to the Plaintiff ’s
Affidavit
in
Reply, some documents referred in the Statement of Claim were not in
the Defendant’s possession. In our view, the Defendant’s
Notice to Produce Documents is reasonable and necessary, and was
issued and served in good faith. Therefore, we are of the considered
view that the serving of Notice to Produce Documents by the
Defendant’s solicitors does not indicate an intention to waive
arbitration rights.
[132]
In
The Londonderry Port and Harbour
Commissioners v. W S Atkins Consultants Ltd and Charles Brand Ltd
[2011] NIQB 74
, it was held that a
request for discovery of documents referred to in the Statement of
Claim did not constitute a step in the proceedings.
Weatherup J
observed as follows:“[25]
Similarly
in the present case I am satisfied that the 1st defendant was
investigating the nature and terms of the contractual arrangement
between the parties. The request for discovery related to matters
referred to in the Statement of Claim and included the contractual
documents relied on by the plaintiff.
The
discussion of a timetable for delivery of the 1st defendant’s
defence was in the course of the ongoing exchange about
the
contractual documents
. There was no
unequivocal representation that the matter would proceed in Court and
no election to waive any right to proceed by
way of arbitration. The
1st defendant’s actions were consistent with the investigative
measures being undertaken to ascertain
the terms of engagement
between the plaintiff and the 1st defendant. While it would have been
desirable if the 1st defendant had
stated expressly in correspondence
that the right to apply for a stay was reserved while the contractual
arrangements were being
investigated, that was not essential in order
to maintain the right to make the application for the dispute to be
determined by
arbitration.
[26]
Accordingly I am satisfied that the
arbitration clause was incorporated into the contractual arrangements
between the plaintiff
and the 1
st
defendant and that the actions taken by the 1st defendant did not
constitute steps in the proceedings to answer the substantive
claim.
I am satisfied that the order should
be made on behalf of the 1st defendant staying the proceedings and
referring to arbitration.”
[Emphasis Added]
[133]
Similarly, in the Singapore High Court decision in
Amoe
Pte Ltd v. Otto Marine Ltd
[2014]
1 SLR 724
(HC)
, Lee Seiu Kin J
observed at p 729 as follows:“[14] In my view,
if
a party files and serves a notice to produce under O 24 r 10 of the
ROC for inspection of documents referenced in pleadings,
and had done
so to ascertain the nature of the claim before it to see if
arbitration was an option, this act by itself is not a
step in the
proceedings,
even without an express
reservation of the right to seek a stay.”
[Emphasis
Added]”
[17]
[33]
In
grounds 8 and 9 I erred to not find that respondent was non-suited in
its application because it has not raised, identified or
articulated
a genuine arbitral dispute capable of being appropriately and
competently referred to arbitration and failed to make
out its case
in its founding affidavit for the relief sought. Furthermore, that I
erred and/or misdirected myself failing to articulate
and/or identify
the issues in dispute and applicant relied on the “
PLC
case”
[18]
in this regard.
[34]
In the
PCL
case
it was said:”
[7] The mere fact that parties have agreed that disputes between them
shall be decided by arbitration does not mean that court
proceedings
are incompetent. If a party institutes proceedings in a court despite
such an agreement, the other party has two options:
It
may apply for a stay of the proceedings in terms of
s 6
of the
Arbitration Act 42 of 1965
; or it may in a special plea (which is in
the nature of dilatory plea) pray for a stay of the proceedings
pending the final determination
of the dispute by arbitration.
The
definitive statement of the law in this regard is to be found in
Rhodesian
Railways Ltd v Mackintosh
[19]
where
Wessels ACJ said:'All that
sec 6(1)
lays
down is that you cannot adopt the cheaper and speedier procedure
therein provided when once you have delivered pleadings or
taken any
other step in the proceedings. If you have taken any step in the
proceedings, then you can no longer adopt the speedier
and less
costly procedure of applying to the Court to stay proceedings but you
must file your pleadings in the ordinary way. In
pleading, however,
you can raise the defence that the case ought to be decided by
arbitration; this can be done by a special preliminary
plea.' In the
present proceedings, the defendant has simply pointed out that the
lease contains an arbitration clause in wide terms.
That is not
sufficient. The defendant was obliged to go further and set the terms
of the dispute. As Didcott J succinctly pointed
out in
Parekh
v Shah Jehan Cinemas (Pty) Ltd and Others
:
[20]
'Arbitration is a method for resolving disputes. That alone is its
object, and its justification. A disputed claim is sent to
arbitration so that the dispute which it involves may be determined.
No purpose can be served, on the other hand, by arbitration
on an
undisputed claim. There is then nothing for the arbitrator to decide.
He is not needed, for instance, for a judgment by consent
or default.
All this is so obvious that it does not surprise one to find
authority for the proposition that a dispute must exist
before any
question of arbitration can arise. It includes
Re
Carus-Wilson and Greene
(1887)
18 QBD 7
(CA);
London
and Lancashire Fire Assurance Co v Imperial Cold Storage and Supply
Co Ltd
(1905)
15 CTR 673;
King
v Harris
1909
TS 292.'
The passage just quoted was approved by this court in
Telecall
(Pty) Ltd
G
v
Logan
[21]
and
Plewman JA went on to say: '[12] I conclude that before there can be
a reference to arbitration a dispute, which is capable
of proper
formulation at the time when an arbitrator is to be appointed, must
exist and there cannot be an arbitration and therefore
no appointment
of an arbitrator can be made in the absence of such a dispute. It
also follows that some care must be exercised
in one's use of the
word ''dispute''. If, for example, the word is used in a context
which shows or indicates that what is intended
is merely an
expression of dissatisfaction not founded upon competing contentions
no arbitration can be entered upon.' I would
merely emphasise that a
failure to pay does not without more imply that there is a dispute as
to liability.”(Own emphasis)
[35]
Respondent, as the other party,
acted in terms of the first option.
[36]
Furthermore, an articulated and identified
dispute must exist before arbitration proceedings can be pursued.
Respondent has identified
the nine disputes in its founding affidavit
which are the same as the nine pleaded claims in applicant’s
summons. The disputes
and the claims are the same, word for word.
[37]
In
ground 10 I have erred and/or misdirected myself to have due and
proper regard to applicant's notice of intention to amend whereby
challenging the validity and enforceability of respondent’s
arbitration provisions in its franchise agreements, specifically
clause 29. Applicant relies in this regard on the decision of
North
East Finance (Pty) Ltd
.
[22]
It is to be noted that in the
North
East Finance case
the arbitration clause could not be invoked while under challenge as
a result of a case that turned on fraud, distinguishable from
the
papers before me. Respondent's unilateral election to make use of
clause 29 cannot result that a deduction can be made of fraud.
[38]
On the papers before me, the amendment was
only a proposed amendment and not perfected yet. I am bound by the
pleadings before me
and the respondent's franchise agreement as is.
[39]
In the case of
Canton
Trading 17 (Pty) Ltd t/a Cube Architects v Hattingh NO
2022
(4) SA 420
(SCA)
it was said:”
[34]
Two approaches have been adopted by the courts so as to assist in
deciding challenges to arbitration that are brought by a
litigant at
the commencement of a dispute. The first approach is based on
separability. Ordinarily, the parties enter into a contract
that
contains an arbitration clause. If the challenge is that the contract
is invalid, unenforceable, or, as here, the contract
never came into
existence, then it may appear logical that the arbitration clause
must fail, if the contract falls to be impugned.
But, that is not
inevitably so. The arbitration clause may give expression to the
intention of the parties that the question of
validity,
enforceability or, indeed, the very existence of the main contract,
is to be submitted to arbitration. If that is how
the arbitration
clause is properly interpreted, then the court may be inclined to
conclude that the parties concluded an arbitration
agreement that is
separate from the main agreement. What the parties consented to was
that the arbitrators should determine the
question of the validity or
the existence of the contract, and the court should then give effect
to their consent. Absent a direct
challenge to the validity or
existence of the arbitration clause, the court will in these
circumstances require the parties to
submit the existence or validity
dispute to arbitration.
[35] The other approach
is based on the principle of competence-competence, also known as
'
kompetenz-kompetenz
'
(referring to its German origins), or the principle of '
compétence
de la compétence
'.
[23]
This
principle has a positive and a negative aspect. The positive aspect
is largely uncontroversial. Arbitrators enjoy the
competence to rule
on their own jurisdiction and are not required to stay their
proceedings to seek judicial guidance. The negative
aspect of the
principle may be formulated as follows. Where the dispute has already
been referred to an arbitrator, the court will
not rule upon the
validity, existence or scope of the arbitration agreement, but will
leave these questions of jurisdiction for
the arbitrator to decide,
at least initially. But, even if the dispute has not yet been
referred to arbitration, the court may
be disinclined to decide the
question of jurisdiction, unless the arbitration agreement is
manifestly void. Once the arbitrator
has ruled and rendered an award,
the courts may finally decide any issue of jurisdiction, if the award
is brought on review or
its enforcement is sought. In this
formulation, the principle of competence-competence gives effect to
the principle of judicial
restraint. The jurisdiction that has most
plainly adopted negative competence-competence is the French Code of
Civil Procedure
[24]
“.
[40]
The arbitrator in the first instance is to
rule on the scope and validity of the very clause conferring
jurisdiction and the principle
of competence-competence is recognized
in this jurisdiction.
[41]
In grounds 11, 11.1 to 11.5, I additionally
erred and/or misdirected myself. It was contended the relief
respondent seeks under
Sections 48, 52 and 72 of the CPA and Section
12B of the PPA falls outside the jurisdiction of any arbitrator. The
stay was granted
under clause 29.1 of the franchise agreement which
deals with private consensual arbitration. Section 12B of the PPA
deals with
statutory arbitration under clause 29.2 of the franchise
agreement.
Section 40
of the
Arbitration Act extends
the Act to every
arbitration under any law and neither the CPA nor the PPA excludes
its application.
[42]
In the case of
Mfoza
Service Station (Pty) Ltd v Engen Petroleum Ltd and Another
2023
(6) SA 29
(CC)
it was said:”
[37] In sum, the features of the s 12B
arbitral system reflect a mechanism that is limited in its scope and
application. It is confined
to dealing only, with contractual
practices that are alleged to be unfair or unreasonable and then to
correct those practices.
The jurisdiction of the High Court is not
ousted by s 12B, and what emerges are parallel systems whose scope
and reach may differ,
but share a common adjudicative standard. It is
within this context that I proceed to deal with the interpretation of
s 12B(4)
(a)
.
[40]
Section 12B(4)
(a)
requires
an arbitrator to establish whether the alleged contractual practices
are unfair or unreasonable and, if so, to correct
such practice by
the making of an award. It follows that all that an arbitrator is
required to do is to make a determination whether
a contractual
practice is unfair or unreasonable. There is no power or requirement
for the arbitrator to go beyond that and matters
of fault, causation,
loss or damage fall outside of the enquiry. Once an arbitrator has
made a determination that a contractual
practice is unfair or
unreasonable then the arbitrator has wide powers, but they are
confined to correcting the practice. One must
therefore distinguish
the limited nature of the determination that an arbitrator is
required to make and the wide powers of redress
following such a
determination. The purpose of making the award is that it must
be
necessary
to correct such practice.
The arbitration model is a creation of statute and the power of the
arbitrator is derived from the PPA. It is a power that
must be
exercised within its lawful parameters and for the purpose it has
been given.
[25]
”
[43]
It
therefore confirms parallel jurisdiction and not exclusive
jurisdiction and does not render the pleaded contractual complaints
incapable of arbitral determination. No substance was proffered that
the disputes fell outside an arbitrator's power. Applicant
also
relies on the
Steinberg
case
[26]
that statutory arbitration provisions are not mandatory. The
Steinberg
case
dealt with the CPA and its Regulations and validity of a single
franchisee's franchise agreement not signed by the franchisor,
para
25. The case, furthermore, also dealt with Section 1 and 7 of the CPA
and did not deal with Section 12B of the PPA, Section
70 of the CPA,
or whether statutory arbitration is compulsory or elective.
[44]
Applicant
also contends that I failed in finding that Section 70 of the CPA
[27]
does not empower nor authorize an alternative dispute resolution
agent to determine or adjudicate upon a dispute. In my judgment
it is
stated that applicant elected to also not make use of this
alternative remedy, a non-exhaustion of available alternative
remedies.
[45]
In grounds 11.6 to 11.9 applicant contends
that I failed to find that the nature of the issues raised and claims
articulated in
applicant's particulars of claim are complex, systemic
and constitutionally impacted, matters of public policy, public
importance
and statutory rights, and implicates public policy, which
by their very nature are not arbitrable and an arbitrator cannot
develop
the common law. Furthermore, it was constitutionally,
procedurally and practically improper for respondent to demand that
the applicant's
collective and complex case be determined in private
and split and pursued in multiple statutory and/or private
fora
.
[46]
The claims pleaded are contractual and
statutory complaints about provisions of the respondent’s
franchise agreement and its
products agreement which falls within the
ambit of clause 29.1 of respondent’s franchise agreement. In my
judgment, only
the nine disputes were referred to arbitration and the
action stayed pending the outcome.
[47]
This is not inconsistent with clause 29 of
the franchise agreement regulating the commercial relationship
between the parties. In
the case of
Cosco Shipping
Specialized Carriers Co, Ltd v PT OKI Pulp & Paper Mills and
Others
[2024] SGCA 50
it was said by the Singapore
Court of Appeal:”4 In other words, the inquiry
does not
start with any presumption that the parties must have intended
for all their competing claims to be decided in the same forum,
because
that would depend on the nature of the competing claims and
the express language of the agreement as rightly observed by the
Judge
below. For this reason, we emphasise that care should be
exercised to avoid over-reliance on any presumption that parties must
have intended that
all
disputes are to be heard together.
After all, forum fragmentation is a fact of life with dispute
resolution agreements, and one
must not overstate the strength of the
“one-stop shop” presumption articulated in
Fiona Trust
& Holding Corporation and others v Privalov and others
[2007] UKHL 40
;
[2008]
1
Lloyds Rep 254
(“
Fiona Trust
”) where
Lord Hoffmann explained (at [13]) that: [T]he construction of an
arbitration clause should start from the assumption
that the parties,
as rational businessmen, are likely to have intended any dispute
arising out of the relationship into which they
have entered or
purported to enter to be decided by the same tribunal. The clause
should be construed in accordance with this presumption
unless the
language makes it clear that certain questions were intended to be
excluded from the arbitrator’s jurisdiction.
5 As we observed
in
Rals International Pte Ltd v Cassa di Risparmio di Parma e
Piacenza SpA
[2016] 5 SLR 455
(“
Rals
International
”) at [34]:… the rule of construction
formulated in
Fiona Trust
is
not to be applied irrespective
of the context in which the underlying agreement was entered into or
the plain meaning of the words
. Where there are compelling
reasons, commercial or otherwise, that may displace any assumed
intention of the parties that claims
of a particular kind are to fall
within the scope of an arbitration clause, the court should be slow
to conduct the exercise of
contractual construction from that
starting point. [emphasis added] If upon examining the text of the
agreement and the nature
of the competing claims, a claim is not
within its ambit, then forum fragmentation is inevitable and the
courts should not steer
away from that outcome: see this court’s
recent decision in
Asiana Airlines, Inc v Gate Gourmet Korea Co,
Ltd and others
[2024] SGCA(I) 8 at [88].”
[48]
In grounds 12, 12.1 to 12.4, it was said
that respondent did not raise nor rely on considerations or arguments
of prematurity nor
alternative remedies in its founding affidavit and
thereby deprived applicant of its right in terms of Section 34 of the
Constitution
to a fair hearing and an opportunity to be heard
thereon. Applicant misconstrued my judgment for reasoning on this in
the alternative.
[49]
Applicant’s
answering affidavit and heads of argument canvassed the existence and
non-exhaustion of alternative statutory
remedies under the CPA and
the PPA. Section 34 was also dealt with in the case of
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another
2009
(4) SA 529
(CC)
where it was said:“
[216]
If we understand s 34 not to be directly applicable to private
arbitration, the effect of a person choosing private arbitration
for
the resolution of a dispute is not that they have waived their
rights under s 34. They have instead chosen not to exercise
their
right under s 34. I do not think, therefore, that the language
of waiver used by both the European Court of Human Rights
in
Suovaniemi
and
by the Supreme Court of Appeal in
Telcordia
is
apt. Indeed, it may not be apt in relation to constitutional rights
at all,
[28]
but that is
a topic for another day.
The
relevance of the Constitution to the terms of arbitration agreements
[219]
The decision to refer a dispute to private arbitration
is a choice which, as long as it is voluntarily made, should be
respected
by the courts.
Parties are entitled to determine what
matters are to be arbitrated, the identity of the arbitrator, the
process to be followed
in the arbitration, whether there will be an
appeal to an arbitral appeal body and other similar matters.”
(Own emphasis)
[50]
In ground 13, I erred and/or misdirected
myself in finding that a referral of the disputes to arbitration will
not necessarily exclude
the development of the common law and that
applicant was required to plead the development of the common law in
circumstances where
the relief it seeks in its action indubitably
requires the development of the common law. In my judgment I stated
that this issue
was not pleaded and would not necessarily be excluded
by a referral to arbitration. The issue of the common law development
is
left undetermined and in a vacuum. The common law can be developed
after the arbitration is over.
[51]
Furthermore, Section 12B of the PPA is a
statutory arbitration mechanism the legislator created to extend
contractual intervention
and advance the PPA's transformative
purpose. A rule that made transformative claims non-arbitrable would
place them beyond the
reach of the mechanism enacted to give effect
to that purpose.
[52]
In ground 14, I erred and/or misdirected
myself in failing to judicially exercise my discretion by failing to
find that there are
good and sufficient reasons for a court to
determine applicant's claims and the relief it seeks in its action.
Applicant’s
claims were stayed pending the outcome of the
interim relief sought. It was not before this court to make a finding
on applicant’s
claims and relief in its action.
[53]
In grounds 15 to 17 applicant relied on
Section 17(1)(a)(ii) and the consequences of my judgment and orders.
I have dealt with the
Lufuno case,
therefore applicant's averment that it
is deprived of its Section 34 constitutional right is ill-conceived
and cannot be regarded
as a compelling reason.
[54]
In ground 15.2, the constitutional
development of the common law is not precluded as averred and the
reasoning appears from my judgment.
[55]
In ground 15.3, the constitutional and
inherent supervisory jurisdiction of the court to develop the common
law is not ousted as
averred.
[56]
In ground 15.4 the averment that applicant
is required to split and pursue different claims and different relief
in different
fora
is misconstrued. Applicant's claims and relief in the particulars of
claim are stayed (all in one
fora
)
and the disputes in respondent’s application is referred to
arbitration.
[57]
In ground 16 it is averred that my judgment
is in conflict with the legal precedent in “
North
East Finance, PLC Consulting, Mfoza, and Tammy Taylor Nails”
cases. The
Tammy Taylor Nails case
did not deal with arbitration at all and the other three cases are
distinguishable.
[58]
In ground 17 it is averred that an inherent
constitutional-, judicial-, legal-, industry-, and wide-public
interest and importance
in the claims and relief that form the
subject matter of applicant's action and the relief sought by
applicant may impact on respondent’s
franchisees who are not
its members and also the broader petroleum industry. The franchisees
are unknown and not disclosed. Applicant
is confined to the disputes
raised as a matter of contractual construction and confined to those
disputes, including the agreed
procedure to resolve those disputes.
[59]
The interlocutory proceedings to stay applicant’s
action pending the outcome of the arbitration does not take away any
substantive
right of applicant, but fixes the forum in which those
rights and associated disputes are to be decided in accordance with
the
parties’ contractual choice. The court's powers of
supervision and intervention is not excluded by this election between
the parties.
In the instant case nothing was raised to disturb
the result.
CONCLUSION
[60]
I am not persuaded that the issues raised
by the applicant in this application for
leave to appeal are
issues in respect of which another court is likely to reach
conclusions different to those reached by me. I
am therefore of the
view that there are not reasonable prospects or compelling reasons of
another court making factual findings
and coming to legal conclusions
at variance with my factual findings and legal conclusions and leave
to appeal should not be granted.
Costs are to follow the result.
ORDER
[61] In the
circumstances, the following order is made:
1. The application
for leave to appeal is dismissed.
2. The applicant is
to pay the costs of this application on scale C.
JP
ALLEN AJ
ACTING JUDGE OF THE HIGH
COURT,
GAUTENG DIVISION
JOHANNESBURG
This
judgment was prepared by Acting Judge Allen. It is handed down
electronically by circulation to the parties or their legal
representatives by email, by uploading 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 31 August 2026.
HEARD
ON:
21 August
2026
DECIDED
ON:
31 August 2026
For
the Applicant:
Adv. G.W. Amm SC
Instructed
by:
Lanham-Love
Inc.
For
the Respondent: Adv. H. Louw
Instructed by:
Cliffe Dekker Hofmeyr
Inc.
[1]
Section
6
of the
Arbitration Act 42 of 1965
reads as follows:
”
Stay
of legal proceedings where there is an arbitration agreement
(1)
If
any party to an arbitration agreement commences any legal
proceedings in any court (including any inferior court) against
any
other party to the agreement in respect of any matter agreed to be
referred to arbitration, any party to such legal proceedings
may at
any time after entering appearance but before delivering any
pleadings or taking any other steps in the proceedings, apply
to
that court for a stay of such proceedings.
(2)
If
on any such application the court is satisfied that there is no
sufficient reason why the dispute should not be referred
to
arbitration in accordance with the agreement, the court may make an
order staying such proceedings subject to such terms and
conditions
as it may consider just.”
[2]
Act
68 of 2008
[3]
Act
120 of 1977
[4]
Case No LCC14R/2014, dated 3 November 2014 at para [6]
[5]
Daantjie
Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and
Another
(75/2008)
2015 JDR 1534 (LCC)
at para 3.
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance In Re: Democratic Alliance v Acting National
Director of
Public Prosecutions and Others
(19577/09)
[2016] ZAGPPHC 489 (24 June 2016)
at para 25
[6]
Van
Zyl v Steyn
(83856/15)
[2022] ZAGPPHC 302 (3 May 2022)
at
para 11
[7]
JR1170/2013
[2016] ZALCJHB 212 (15 June 2016)
[8]
Notshokovu v S
(157/2015)
[2016] ZASCA 112
(7 September 2016).
[9]
The decision in
Songono
was
approved by the Full Court in
Xayimpi
and Others v Chairman Judge White Commission (formerly known as
Browde Commission) and Others
[2006]
2 All SA 442
(E)
and has been consistently followed in various divisions of the High
Court.
[10]
Kathmer
Investments (Pty) Ltd v Woolworths (Pty) Ltd
1970
(2) SA 498 (A)
at
504H;
Metallurgical
and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd
1971
(2) SA 388
(W)
at
391C – E; and
Rhodesian
Railways
above
n33 at 361.
[11]
Universiteit
van Stellenbosch v JA Louw (Edms) Bpk
1983
(4) SA 321
(A)
.
[12]
Id
at 327C – D. See also
Transasia
above
n36 para 19, where the High Court said:
'Where
a party to an arbitration agreement commences legal proceedings
against the other party to that agreement,
the defendant is entitled
either to apply for a stay of the proceedings pursuant to
s 6
of the
Arbitration Act 42 of 1965
or to deliver a special plea relying upon
the arbitration clause.
Whichever
course it adopts the onus then rests on the claimant to persuade the
court to exercise its discretion to refuse arbitration.
This
requires a very strong case to be made out
.'
[Emphasis added.]
[13]
See
also
Nick’s
Fishmonger Holdings (Pty) Ltd v De Sousa
2003
(2) SA 278
(SE)
at paras 17 to 24
[14]
In
Majola
and Another v Country Cloud Trading 221 CC and Others
2019
(5) SA 195
(KZP)
on page 203 it was said: “[23] The appellants never entered
into any contract with the respondents and their rights need
to be
protected, particularly as the property is mortgaged for the entire
value of the property.
The
court has the power to decide on legal issues not pertinently raised
in the affidavits, where it is satisfied that all the
relevant facts
have been canvassed in the affidavits, so that none of the parties
is prejudiced
.
The issue relating to the common intention of the parties, which has
been raised by the appellants, though not pertinently raised
in the
appellants' papers, arises, however, out of the established facts.
This issue may be considered by the court and may form
the basis of
its judgment. I do not see how the consideration of common intention
would prejudice the respondents, as it is related
to the
interpretation of the provisions of s 4(1) of the Act. Section 39(2)
of the Constitution is also applicable to the interpretation
of
legislation, like s 4(1) of the Act, which should not be used to
achieve an unconstitutional end.” (Emphasis added)
[15]
Rule
41A of the Uniform Rules of Court reads:” Mediation as a
dispute resolution mechanism
(1) In this rule—
“dispute” means the subject matter of litigation between
parties, or an aspect thereof. “mediation”
means a
voluntary process entered into by agreement between the parties to a
dispute, in which an impartial and independent person,
the mediator,
assists the parties to either resolve the dispute between them, or
identify issues upon which agreement can be
reached, or explore
areas of compromise, or generate options to resolve the dispute, or
clarify priorities, by facilitating discussions
between the parties
and assisting them in their negotiations to resolve the dispute.
(2) (a) In every new
action or application proceeding, the plaintiff or applicant shall,
together with the summons or combined
summons or notice of motion,
serve on each defendant or respondent a notice indicating whether
such plaintiff or applicant agrees
to or opposes referral of the
dispute to mediation.
(b) A defendant or
respondent shall, when delivering a notice of intention to defend or
a notice of intention to oppose, or at
any time thereafter, but not
later than the delivery of a plea or answering affidavit, serve on
each plaintiff or applicant or
the plaintiff’s or applicant’s
attorneys, a notice indicating whether such defendant or respondent
agrees to or opposes
referral of the dispute to mediation: Provided
that in urgent applications, the court or a judge may dispense with
compliance
with paragraphs (a) and (b).
(c) The notices referred
to in paragraphs (a) and (b) shall be substantially in accordance
with Form 27 of the First Schedule
and shall clearly and concisely
indicate the reasons for such party’s belief that the dispute
is or is not capable of being
mediated.”
[16]
Sanwell
Corp v Trans Resources Corp Sdn Bhd & Anor
[2002]
2 MLJ 625 (FC)
[17]
See
also
Tomolugen
Holdings Ltd and Another v Silica Investors Ltd and other Appeals
[2015]
SGCA 57
at paras 29 and 57 to 59.
[18]
PCL
Consulting (Pty) Ltd t/a Phillips Consulting SA v Tresso Trading 119
(Pty) Ltd
2009
(4) SA 68
(SCA)
[19]
1932
AD 359
at 370-371.
[20]
1980
(1) SA 301
(D)
at 304E-G.
[21]
[2000] ZASCA 97
;
2000
(2) SA 782
(SCA)
in para 11.
[22]
North
East Finance (Pty) Ltd v Standard Bank of South Africa Ltd
2013
(5) SA 1 (SCA)
[23]
“
Kompetenz-kompetenz
is
a jurisprudential doctrine whereby a legal body, such as a court or
arbitral tribunal, may have competence, or jurisdiction,
to rule as
to the extent of its own competence on an issue before it. Regarding
its German origin, see P Landolt 'The Inconvenience
or Principle:
Separability and
Kompetenz-Kompetenz
'
Journal
of International Arbitration
30
No 5 (2013) 511 – 30 at 513 fn 4:
'This
German name for the principle has established itself in English
usage. In its original German usage, it
designated not the general
notion of the arbitral tribunal's powers to come to a determination
on its own jurisdiction but a
more specific notion, ie, a variant of
the general notion.'
Furthermore,
E Gaillard & J Savage (
Fouchard,
Gaillard and Goldman on International Commercial Arbitration
)
(Kluwer Law International, The Hague, 1999) at 396 – 7)
explain:
'German legal terminology lends a
meaning to the expression which differs substantially from that
which the
expression is intended to convey when used in
international arbitration. If one were to follow the traditional
meaning of the
expression in Germany, "kompetenz-kompetenz"
would imply that the arbitrators are empowered to make a final
ruling
as to their jurisdiction, with no subsequent review of the
decision by any Court. Understood in such a way, the concept is
rejected
in Germany, just as it is elsewhere. From a substantive
viewpoint, the paradox is all the more marked for the fact that in
Germany
the question of whether the courts should refuse to examine
the jurisdiction of an arbitral tribunal until such time as the
arbitrators
have been able to rule on the issue themselves (the
negative effect of the competence-competence principle), has never
been accepted.'”
[24]
“
Article
1458 of the French New Code of Civil Procedure (1981) reads as
follows:
'Whenever a dispute submitted to an
arbitral tribunal by virtue of an arbitration agreement is brought
before
a court of the state, such court shall decline jurisdiction.
If the arbitral tribunal has not yet been seized of the matter, the
court should also decline jurisdiction unless the arbitration
agreement is manifestly void.'”
[25]
Minister
of Public Works v Haffejee NO
1996
(3) SA 745 (A)
([1996]
4 All SA 355
;
[1996] ZASCA 17)
para
11.
[26]
Steynberg
v Tammy Taylor Nails Franchising No 45 (Pty) Ltd
(23655/2021)
[2023] ZAGPPHC 537 (3 July 2023)
[27]
70.
Alternative dispute resolution
(1) A consumer may seek
to resolve any dispute in respect of a transaction or agreement with
a supplier by referring the matter
to an alternative dispute
resolution agent who may be-
(a)
an
ombud with jurisdiction, if the supplier is subject to the
jurisdiction of any such ombud;
(b)
an
industry ombud accredited in terms of section 82 (6), if the
supplier is subject to the jurisdiction of any
such ombud;
(c)
a
person or entity providing conciliation, mediation or arbitration
services to assist in the resolution of
consumer disputes, other
than an ombud with jurisdiction, or an accredited industry ombud; or
(d)
applying
to the consumer court of the province with jurisdiction over the
matter, if there is such a consumer
court, subject to the law
establishing or governing that consumer court.
(2) If an alternative
dispute resolution agent concludes that there is no reasonable
probability of the parties resolving their
dispute through the
process provided for, the agent may terminate the process by notice
to the parties, whereafter the party
who referred the matter to the
agent may file a complaint with the Commission in accordance with
section 71.
(3) If an alternative
dispute resolution agent has resolved, or assisted parties in
resolving their dispute, the agent may-
(a)
record
the resolution of that dispute in the form of an order, and
(b)
if
the parties to the dispute consent to that order, submit it to the
Tribunal or the High Court to be made
a consent order, in terms of
its rules.
(4) With the consent of
a complainant, a consent order confirmed in terms of subsection
(3)
(b)
may include an award of damages to that
complainant.
[28]
2007
(5) SA 525 (CC)
(2007
(2) BCLR 125
;
[2006] ZACC 13).