South Africa Case Law

GFE MIR Alloys and Minerals SA (Pty) Ltd v Momoco International Limited (55273/2021)

GFE MIR Alloys and Minerals SA (Pty) Ltd v Momoco International Limited (55273/2021) [2023] ZAGPJHC 946 (24 August 2023)

Court

South Gauteng High Court, Johannesburg

Case number

55273/2021

Judge

TP Mudau

The court held that GFE MIR Alloys and Minerals SA (Pty) Ltd failed to demonstrate any reasonable prospect of success on appeal or any compelling reason for leave to appeal. The public policy defence raised by GFE was found to be irrelevant, as the arbitral tribunal and the court had already considered and rejected the tax evasion argument. The onus to prove that enforcement would be contrary to public policy rests with the party resisting enforcement, not the party seeking it. The requirements of section 18(3) of the Superior Courts Act were satisfied, as Momoco had shown exceptional circums…

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• Leave To Appeal
• Recognition And Enforcement Of Foreign Arbitral Awards
• Public Policy Exception
• Section 18 Application
• Pacta Sunt Servanda

Vodacom International Limited and Another v Mabanga (17/29804)

Vodacom International Limited and Another v Mabanga (17/29804) [2019] ZAGPJHC 551 (12 December 2019)

Court

South Gauteng High Court, Johannesburg

Case number

17/29804

Judge

Notshe

The High Court enforced an ICC arbitral award, rejecting a public policy objection based on a claimed visa-related absence from the arbitration.

• Recognition And Enforcement Of Foreign Arbitral Awards
• Public Policy Exception
• International Arbitration
• Costs Order
• Foreign-arbitral-award-enforcement
• Public-policy

Ex parte: Balkan Energy Limited and Another; In re: Balkan Energy Limited and Another v Government of the Republic of Ghana (17/18638)

Ex parte: Balkan Energy Limited and Another; In re: Balkan Energy Limited and Another v Government of the Republic of Ghana (17/18638) [2017] ZAGPJHC 197; 2017 (5) SA 428 (GJ) (29 June 2017)

Court

South Gauteng High Court, Johannesburg

Case number

17/18638

Judge

S Kuny

The court held that it has jurisdiction to recognise and enforce the foreign arbitral award under section 2 of the Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977, provided that property of the respondent is attached within the jurisdiction. The attachment of shares in AngloGold Ashanti Limited, held by the Government of Ghana, is sufficient to found jurisdiction. The Power Purchase Agreement does not fall within the scope of the Protection of Businesses Act, as it concerns the supply of electricity and not raw materials. Clause 24 of the PPA constitutes a waiver of immu…

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• Recognition And Enforcement Of Foreign Arbitral Awards
• Attachment To Found Jurisdiction
• Foreign State Immunity
• Edictal Citation
• New York Convention
• Protection Of Businesses Act

Fattouche v Khumalo (508/2012)

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

Court

South Gauteng High Court, Johannesburg

Case number

508/2012

Judge

Weiner

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 part…

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• Recognition And Enforcement Of Foreign Arbitral Awards
• Protection Of Businesses Act
• Sale Of Shares
• Public Policy Exception
• Constitutional Review

Phoenix Shipping Corporation v DHL Global Forwarding SA (Pty) Ltd and Another (AC70/2011)

Phoenix Shipping Corporation v DHL Global Forwarding SA (Pty) Ltd and Another (AC70/2011) [2012] ZAWCHC 11; 2012 (3) SA 381 (WCC) (24 February 2012)

Court

Western Cape High Court, Cape Town

Case number

AC70/2011

Judge

NJ Yekiso

The court found that no valid arbitration agreement existed between DHL and Bateman, as Bateman never signed or assented to the terms of the Booking Note and consensus was absent. The purported agreement was invalid under both South African and English law. The court held that Bateman was entitled to challenge the arbitrator's jurisdiction in South Africa, notwithstanding any statutory estoppel under English law. Recognition and enforcement of the award against Bateman would be contrary to public policy in South Africa. Accordingly, DHL's application to intervene as co-applicant for enforceme…

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• Recognition And Enforcement Of Foreign Arbitral Awards
• Public Policy Exception
• Invalid Arbitration Agreement
• Jurisdiction Of Arbitrator
• Statutory Estoppel
• New York Convention