Dainfern Square (Pty) Ltd v Dlamini NO and Other (4627/2021) [2021] ZAGPPHC 729 (8 November 2021)

Dainfern Square (Pty) Ltd v Dlamini NO and Other (4627/2021) [2021] ZAGPPHC 729 (8 November 2021)

The court found that the application was not premature, as South African courts have the power to grant declaratory relief regarding an arbitrator's jurisdiction during ongoing arbitration proceedings. The arbitration clause in the lease agreement only covered disputes regarding the interpretation or implementation of the agreement, not claims based on unjustified enrichment. Since Dis-Chem's claim was for unjustified enrichment, the arbitrator lacked jurisdiction to adjudicate the dispute. Referring the matter to arbitration was therefore incorrect, and the dispute must be resolved in the appropriate forum.

Citation
[2021] ZAGPPHC 729
Parties
Applicant: Dainfern Square (Pty) Ltd; Respondent: Mpilo Winston Dlamini N.O.; Respondent: Dis-Chem Pharmacies Limited; Respondent: Noble Spectatus Funds (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 November 2021
Case Number
4627/2021
Procedural Posture
Review Application / Application to Set Aside Arbitrator's Jurisdictional Ruling
Outcome
Application granted. The arbitrator's jurisdictional ruling is set aside and the dispute is declared not arbitrable under the lease agreement.
Judges
Janse Van Nieuwenhuizen
Legal Topics
Arbitration Jurisdiction, Declaratory Relief, Unjustified Enrichment, Contract Interpretation
Civil Procedure Commercial and Corporate Arbitration Jurisdiction Declaratory Relief Unjustified Enrichment Contract Interpretation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Dainfern Square (Pty) Ltd

Applicant

Mpilo Winston Dlamini N.O.

Respondent

Dis-Chem Pharmacies Limited

Respondent

Noble Spectatus Funds (Pty) Ltd

Respondent

Procedural Posture

Review Application / Application to Set Aside Arbitrator's Jurisdictional Ruling

Legal Issues

  1. 1 Is the application to set aside the arbitrator's jurisdictional ruling premature.
  2. 2 Does the arbitrator have jurisdiction to adjudicate a claim for unjustified enrichment under the lease agreement's arbitration clause.

Ratio Decidendi

The court found that the application was not premature, as South African courts have the power to grant declaratory relief regarding an arbitrator's jurisdiction during ongoing arbitration proceedings. The arbitration clause in the lease agreement only covered disputes regarding the interpretation or implementation of the agreement, not claims based on unjustified enrichment. Since Dis-Chem's claim was for unjustified enrichment, the arbitrator lacked jurisdiction to adjudicate the dispute. Referring the matter to arbitration was therefore incorrect, and the dispute must be resolved in the appropriate forum.

Court Disposition

Application granted. The arbitrator's jurisdictional ruling is set aside and the dispute is declared not arbitrable under the lease agreement.

Orders

  • It is declared that the dispute between the second respondent and the applicant does not fall within the provisions of clause 33 of the lease agreement concluded between the parties on 18 June 2015 and was accordingly incorrectly referred to arbitration by the second respondent.
  • The second respondent is ordered to pay the costs of the application, including the costs of two counsel.