Delta Beverages (Private) Limited and Another v Blakey Investments (Pty) Ltd and Others (D2834/2020) [2020] ZAKZDHC 36 (31 August 2020)

Delta Beverages (Private) Limited and Another v Blakey Investments (Pty) Ltd and Others (D2834/2020) [2020] ZAKZDHC 36 (31 August 2020)

The court found that the applicants failed to establish a clear or prima facie right to a stay of arbitration. The supply agreements expressly provided for arbitration under South African law, and the applicants participated in the arbitration process, raising their special pleas before the arbitrators. The court held that the arbitration clause is severable and survives allegations of invalidity unless fraud is alleged, which was not the case. The applicants have alternative remedies within the arbitration, and the arbitrators are competent to decide on jurisdiction and validity. The balance of convenience favours allowing the arbitrations to proceed, as Blakey is entitled to expeditious...

Citation
[2020] ZAKZDHC 36
Parties
Applicant: Delta Beverages (Private) Limited; Applicant: Schweppes Zimbabwe Limited; Respondent: Blakey Investments (Pty) Ltd; Respondent: Pammenter C.J, N.O.; Respondent: Hollis N.D, N.O.; Respondent: Association of Arbitrators (Southern Africa) NPC
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
31 August 2020
Case Number
D2834/2020
Procedural Posture
Stay Application / Application for Interim Interdict to Stay Arbitration Pending Foreign Litigation
Outcome
Application dismissed with costs of two counsel, payable jointly and severally by the applicants.
Judges
M R Chetty
Legal Topics
Stay of Arbitration, Forum Non Conveniens, Separability of Arbitration Clause, Exchange Control Regulations, Contra Boni Mores, Authority of Agent
Civil Procedure Commercial and Corporate Alternative Dispute Resolution Stay of Arbitration Forum Non Conveniens Separability of Arbitration Clause Exchange Control Regulations Contra Boni Mores +1 more

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Parties

Delta Beverages (Private) Limited

Applicant

Schweppes Zimbabwe Limited

Applicant

Blakey Investments (Pty) Ltd

Respondent

Pammenter C.J, N.O.

Respondent

Hollis N.D, N.O.

Respondent

Association of Arbitrators (Southern Africa) NPC

Respondent

Procedural Posture

Stay Application / Application for Interim Interdict to Stay Arbitration Pending Foreign Litigation

Legal Issues

  1. 1 Whether the applicants have established a case for the stay of arbitration proceedings pending the finalisation of litigation in Zimbabwe.
  2. 2 Whether the arbitration clause is severable from the main agreement and survives allegations of invalidity.
  3. 3 Whether the applicants have an alternative remedy to the stay application.

Ratio Decidendi

The court found that the applicants failed to establish a clear or prima facie right to a stay of arbitration. The supply agreements expressly provided for arbitration under South African law, and the applicants participated in the arbitration process, raising their special pleas before the arbitrators. The court held that the arbitration clause is severable and survives allegations of invalidity unless fraud is alleged, which was not the case. The applicants have alternative remedies within the arbitration, and the arbitrators are competent to decide on jurisdiction and validity. The balance of convenience favours allowing the arbitrations to proceed, as Blakey is entitled to expeditious...

Court Disposition

Application dismissed with costs of two counsel, payable jointly and severally by the applicants.

Orders

  • The application is dismissed with costs of two counsel, such costs to be paid by the applicants jointly and severally, the one paying the other to be absolved.