(3289/18) [2020] ZAMPMBHC 46; [2020] ZAMPMBHC 5 (6 March 2020)

(3289/18) [2020] ZAMPMBHC 46; [2020] ZAMPMBHC 5 (6 March 2020)

The court found that the replication by the Mpumalanga Provincial Government raises constitutional issues of public importance, specifically regarding the application of estoppel in public-private partnership agreements governed by the PFMA and Treasury Regulations. The High Court, not a private arbitrator, has jurisdiction to decide such constitutional matters. The privatisation of constitutional disputes is contrary to the constitutional system, and the arbitrator lacks the power to grant just and equitable remedies under Section 172 of the Constitution. Furthermore, relevant parties such as the accounting officer are not joined to the arbitration, risking incomplete adjudication and...

Citation
[2020] ZAMPMBHC 46
Parties
Applicant: Tintswalo Lodges (Pty) Ltd; Respondent: MEC for Finance, Economic Development and Tourism, Mpumalanga; Respondent: Head of Department: Economic Development and Tourism, Mpumalanga; Respondent: Mpumalanga Tourism and Parks Agency; Respondent: Board of Directors of the Mpumalanga Tourism and Parks Agency; Respondent: Brian Southwood; Respondent: Office of the Chief Land Claims Commissioner
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
6 March 2020
Case Number
2653/2017
Procedural Posture
Stay Application / Application for Stay of Arbitration and Joinder of Parties
Outcome
Application granted: arbitration proceedings stayed and referred to trial before the High Court; joinder of first and second respondents ordered; condonation granted for late filing; costs awarded against first to fourth respondents.
Judges
Greyling-Coetzer
Legal Topics
Arbitration Act Section 3, Public Private Partnership, Estoppel, Pfma Compliance, Constitutional Jurisdiction, Joinder of Parties
Civil Procedure Commercial and Corporate Constitutional Law Arbitration Act Section 3 Public Private Partnership Estoppel Pfma Compliance Constitutional Jurisdiction +1 more

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Parties

Tintswalo Lodges (Pty) Ltd

Applicant

MEC for Finance, Economic Development and Tourism, Mpumalanga

Respondent

Head of Department: Economic Development and Tourism, Mpumalanga

Respondent

Mpumalanga Tourism and Parks Agency

Respondent

Board of Directors of the Mpumalanga Tourism and Parks Agency

Respondent

Brian Southwood

Respondent

Office of the Chief Land Claims Commissioner

Respondent

Procedural Posture

Stay Application / Application for Stay of Arbitration and Joinder of Parties

Legal Issues

  1. 1 Whether the arbitration proceedings should be stayed and referred to trial before the High Court.
  2. 2 Whether the replication by the Mpumalanga Provincial Government raises a constitutional issue of public importance, ousting the appropriateness of arbitration.
  3. 3 Whether the arbitrator has jurisdiction to decide constitutional matters arising from the Public Finance Management Act and Treasury Regulations.

Ratio Decidendi

The court found that the replication by the Mpumalanga Provincial Government raises constitutional issues of public importance, specifically regarding the application of estoppel in public-private partnership agreements governed by the PFMA and Treasury Regulations. The High Court, not a private arbitrator, has jurisdiction to decide such constitutional matters. The privatisation of constitutional disputes is contrary to the constitutional system, and the arbitrator lacks the power to grant just and equitable remedies under Section 172 of the Constitution. Furthermore, relevant parties such as the accounting officer are not joined to the arbitration, risking incomplete adjudication and...

Court Disposition

Application granted: arbitration proceedings stayed and referred to trial before the High Court; joinder of first and second respondents ordered; condonation granted for late filing; costs awarded against first to fourth respondents.

Orders

  • Condonation is granted to the applicant for the late filing of its replying affidavit.
  • The arbitration proceedings between the Mpumalanga Provincial Government and the applicant are stayed and referred to trial before this court.