Cream We Go (Pty) Ltd and Another v Paul's Homemade (Pty) Ltd and Others (013187/2022) [2024] ZAGPPHC 847 (28 August 2024)

Cream We Go (Pty) Ltd and Another v Paul's Homemade (Pty) Ltd and Others (013187/2022) [2024] ZAGPPHC 847 (28 August 2024)

The court found that section 52 of the Consumer Protection Act does not reserve remedies exclusively for courts and does not oust the jurisdiction of arbitrators. The phrase 'in any proceedings before a court' does not preclude arbitration, especially given the CPA's provisions for alternative dispute resolution. The Applicants' reliance on section 52 as a defence does not entitle them to avoid arbitration, particularly as they previously invoked the arbitration clause to object to the court's jurisdiction. No good cause was shown to set aside the arbitration agreement under section 3(2) of the Arbitration Act. The Applicants' application was dismissed, and costs awarded against them.

Citation
[2024] ZAGPPHC 847
Parties
Applicant: Cream We Go (Pty) Ltd; Applicant: Sonja Boshoff; Respondent: Paul's Homemade (Pty) Ltd; Respondent: Arbitration Foundation of Southern Africa; Respondent: Adv AE Bham SC N.O.; Respondent: National Consumer Commission
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 August 2024
Case Number
013187/2022
Procedural Posture
Review Application / Part B: Application to Declare Arbitration Agreement Void and Arbitrator Without Jurisdiction
Outcome
Application dismissed with costs.
Judges
M P Kumalo
Legal Topics
Arbitration Agreement Validity, Consumer Protection Act, Jurisdiction of Arbitrator, Setting Aside Arbitration Clause, Good Cause Requirement, Contractual Interpretation
Commercial and Corporate Civil Procedure Alternative Dispute Resolution Arbitration Agreement Validity Consumer Protection Act Jurisdiction of Arbitrator Setting Aside Arbitration Clause Good Cause Requirement +1 more

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Parties

Cream We Go (Pty) Ltd

Applicant

Sonja Boshoff

Applicant

Paul's Homemade (Pty) Ltd

Respondent

Arbitration Foundation of Southern Africa

Respondent

Adv AE Bham SC N.O.

Respondent

National Consumer Commission

Respondent

Procedural Posture

Review Application / Part B: Application to Declare Arbitration Agreement Void and Arbitrator Without Jurisdiction

Legal Issues

  1. 1 Whether the arbitrator has jurisdiction to adjudicate the dispute between the parties under the franchise agreement.
  2. 2 Whether the arbitration agreement in clauses 21 and 22 of the franchise agreement is void and unenforceable under the Consumer Protection Act.
  3. 3 Whether the arbitration agreement should be set aside in terms of section 3(2) of the Arbitration Act for good cause shown.

Ratio Decidendi

The court found that section 52 of the Consumer Protection Act does not reserve remedies exclusively for courts and does not oust the jurisdiction of arbitrators. The phrase 'in any proceedings before a court' does not preclude arbitration, especially given the CPA's provisions for alternative dispute resolution. The Applicants' reliance on section 52 as a defence does not entitle them to avoid arbitration, particularly as they previously invoked the arbitration clause to object to the court's jurisdiction. No good cause was shown to set aside the arbitration agreement under section 3(2) of the Arbitration Act. The Applicants' application was dismissed, and costs awarded against them.

Court Disposition

Application dismissed with costs.

Orders

  • The Applicants' application is dismissed.
  • The Applicants are to pay the costs of this application on the 'B' scale.