Fattouche v Khumalo (508/2012) [2014] ZAGPJHC 102 (6 May 2014)

Fattouche v Khumalo (508/2012) [2014] ZAGPJHC 102 (6 May 2014)

The court held that the foreign arbitral award sought to be enforced arises from a sale of shares agreement and not from a transaction involving raw materials or substances as contemplated by section 1(3) of the Protection of Businesses Act. The restrictive interpretation adopted by South African courts excludes...

Source-derived case information.

Citation
[2014] ZAGPJHC 102
Parties
Applicant: Pierre Fattouche; Respondent: Mzilikazi Khumalo
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 May 2014
Case Number
508/2012
Procedural Posture
Recognition and Enforcement Application / Final Judgment on Application to Make Foreign Arbitral Award an Order of Court
Outcome
Application granted. The foreign arbitral award is made an order of court.
Judges
Weiner
Legal Topics
Recognition and Enforcement of Foreign Arbitral Awards, Protection of Businesses Act, Sale of Shares, Public Policy Exception, Constitutional Review
Civil Procedure Commercial and Corporate Recognition and Enforcement of Foreign Arbitral Awards Protection of Businesses Act Sale of Shares Public Policy Exception Constitutional Review

Source-derived case record

Summary, issues, holding and outcome

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Parties

Pierre Fattouche

Applicant

Mzilikazi Khumalo

Respondent

Procedural Posture

Recognition and Enforcement Application / Final Judgment on Application to Make Foreign Arbitral Award an Order of Court

Legal Issues

  1. 1 Whether the foreign arbitral award arising from a sale of shares agreement is enforceable in South Africa under the Recognition and Enforcement of Foreign Arbitral Awards Act.
  2. 2 Whether the Protection of Businesses Act 99 of 1978 precludes enforcement of the award due to its connection with mining activities.
  3. 3 Whether the respondent's alleged pactum de non petendo constitutes a valid defence to enforcement.

Ratio Decidendi

The court held that the foreign arbitral award sought to be enforced arises from a sale of shares agreement and not from a transaction involving raw materials or substances as contemplated by section 1(3) of the Protection of Businesses Act. The restrictive interpretation adopted by South African courts excludes shares from the ambit of 'matter or material,' even if the shares are in a mining company. Therefore, ministerial approval is not required for enforcement. The respondent's defence of pactum de non petendo was rejected as unsupported by the evidence and correspondence between the parties. The court found no sustainable defence to enforcement and granted the applicant's relief. The...

Court Disposition

Application granted. The foreign arbitral award is made an order of court.

Orders

  • The order granted on 6 May 2014 is recalled.
  • The arbitration award annexed hereto is made an order of court.