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ARBITRATION ACT 42 OF 1965
[Updated
to 11 October 2024.**]
**Date
of last changes incorporated into this Act.
___________________
(English text signed by the State President.)
(Assented to 5th April, 1965.)
___________________
[Commencement:
14 April 1965]
Act 42 of 1965 (GoN 526, G. 1084),
Act 49 of 1996 (GoN 1601, G. 17477, c.i.o 4 October 1996),
Act 18 of 1996 (GoN 632, G. 17123, c.i.o 1 April 1997 [Proc. R23, G. 17849]),
Act 12 of 2004 (GoN 559, G. 26311, c.i.o 27 April 2004).
[NOTE: The
administration, powers and functions of this Act are transferred to the Minister
of Justice and Constitutional Development, effective immediately before the
President assumed office on 19 June 2024 – Proc 199 / G. 51368 / 11 October
2024.]
ACT
To provide for the settlement of disputes by arbitration tribunals in
terms of written arbitration agreements and for the enforcement
of the awards
of such arbitration tribunals.
BE IT ENACTED by the State President, the
Senate and the House of Assembly of the Republic of South Africa, as follows.
ARRANGEMENT OF SECTIONS
DEFINITIONS
1. Definitions
MATTERS NOT SUBJECT TO
ARBITRATION
2. Matters not subject to
arbitration
EFFECT OF ARBITRATION AGREEMENTS
3. Binding effect on
arbitration agreement and power of court in relation thereto
4. Death or removal from
office of party to an arbitration agreement
5. Insolvency or winding-up of
a party to an arbitration agreement
6. Stay of legal proceedings
where there is an arbitration agreement
7. Power of court to order
that dispute be determined by interpleader proceedings or that interpleader
issues be determined by arbitration
8. Power of court to extend
time fixed in arbitration agreement for commencing arbitration proceedings
ARBITRATORS AND UMPIRES
9. Reference to a single
arbitrator
10. Power
of parties to appoint arbitrators to fill vacancies
11. Power of parties or
arbitrators to appoint umpire and to fill vacancy
12. Power of court to appoint an
arbitrator or umpire
13. Termination or setting
aside of appointment of arbitrator or umpire
PROVISIONS AS TO ARBITRATION PROCEEDINGS
14. Powers of arbitration
tribunal and manner of arriving at decisions where the arbitration tribunal
consists of two or more arbitrators
15. Notice of proceedings to
parties
16. Summoning of witnesses
17. Recording of evidence
18. Reference of particular points to umpire
19. Powers of umpire
20. Statement of case for opinion of court or counsel during arbitration
proceedings
21. General powers of the court
22. Offences
PROVISIONS AS TO AWARDS
23. Time for making award
24. Award to be in writing
25. Publication of award
26. Interim award
27. Specific performance
28. Award to be binding
29. Interest on amount awarded
30. Power of arbitration tribunal to correct errors in award
31. Award may be made an order of court
32. Remittal
of award
33. Setting aside of award
REMUNERATION OF ARBITRATORS AND UMPIRE AND
COSTS
34. Remuneration of arbitrators and umpire
35. Costs of arbitration proceedings
36. Costs of legal proceedings
MISCELLANEOUS PROVISIONS
37. Service of notices
38. Extension of periods fixed by or under this Act
39. This Act binds the State
40. Application of this Act to arbitrations under special laws
41. …
42. Repeal of laws
43. Short title
DEFINITIONS
1. Definitions
In this Act,
unless the context otherwise indicates—
“arbitration agreement” means a written agreement providing for the
reference to arbitration of any existing dispute or any future dispute relating
to
a matter specified in the agreement, whether an arbitrator is named or
designated therein or not;
“arbitration proceedings” means proceedings conducted by an
arbitration tribunal for the settlement by arbitration of a dispute which has
been referred to
arbitration in terms of an arbitration agreement;
“arbitration tribunal” means the arbitrator, arbitrators or umpire
acting as such under an arbitration agreement;
“award” includes an interim award;
“court” means any court of a provincial or local
division of the Supreme Court of South Africa having jurisdiction;
“party”, in relation to an arbitration agreement or
a reference, means a party to the agreement or reference, a successor in title
or assign
of such a party and a representative recognised
by law of such a party, successor in title or assign;
“territory” …
[“territory” rep
by s 1 (Sch item 1) of Act 49 of 1996.]
MATTERS NOT SUBJECT TO
ARBITRATION
2. Matters
not subject to arbitration
A reference to
arbitration shall not be permissible in respect of—
(a) any matrimonial cause or any matter
incidental to any such cause; or
(b) any matter relating to status.
EFFECT OF ARBITRATION AGREEMENTS
3. Binding
effect on arbitration agreement and power of court in relation thereto
(1) Unless the agreement
otherwise provides, an arbitration agreement shall not be capable of being
terminated except by consent of
all the parties thereto.
(2) The
court may at any time on the application of any party to an arbitration
agreement, on good cause shown—
(a) set aside the
arbitration agreement; or
(b) order that any particular
dispute referred to in the arbitration agreement shall not be referred to
arbitration; or
(c) order that the
arbitration agreement shall cease to have effect with reference to any dispute
referred.
4. Death or removal from office of party to
an arbitration agreement
(1) Unless the agreement otherwise provides, an
arbitration agreement or any appointment of an arbitrator or umpire thereunder
shall
not be terminated by the death of any party thereto.
(2) If any party to a reference under an
arbitration agreement dies or vacates or is removed from his office after any
dispute has been
referred to arbitration, all steps and proceedings in
connection with the reference shall be stayed, subject to any order that the
court may make, until an executor or other proper representative has been
appointed in the estate of the party who has died or,
as the case may be, until
an executor, administrator, curator, trustee, liquidator or judicial manager
has, where necessary, been
appointed in the place of an executor,
administrator, curator, trustee, liquidator or judicial manager who in his
capacity as such
was a party to the reference and who has died or has vacated
or has been removed from his office.
(3) For the purposes of subsection (2) a
dispute shall be deemed to have been referred to arbitration if any party to
the dispute has
served on the other party or parties thereto a written notice
requiring him or them to appoint or to agree to the appointment of
an
arbitrator or, where the arbitrator is named or designated in the arbitration
agreement, requiring the dispute to be referred
to the arbitrator so named or
designated.
(4) Any period of time fixed by or under this
Act which is interrupted by any stay resulting from the operation of subsection
(2), shall
be extended by a period equal to the period of such interruption.
(5) Nothing in this section contained shall
affect the operation of any law or rule of law by virtue of which any right of
action is
extinguished by the death of any person.
5. Insolvency or winding-up of a party to an
arbitration agreement
(1) Unless the agreement otherwise provides, an
arbitration agreement or any appointment of an arbitrator or umpire thereunder
shall
not be terminated by the sequestration of the estate of any party thereto
or, if such party be a corporate body, by the winding-up
of the corporate body
or the placing of the corporate body under judicial management.
(2) If the estate of any party to an
arbitration agreement is sequestrated or if, in the case of a corporate body
which is a party to
such an agreement, a petition for the winding-up of the
corporate body or for placing the corporate body under judicial management
is
presented or an order for winding-up the corporate body or for placing the
corporate body under judicial management is made,
the provisions of any law
relating to the sequestration of insolvent estates or, as the case may be, any
law relating to the winding-up
or judicial management of the corporate body
concerned, shall apply in the same manner as if a reference of a dispute to
arbitration
under the arbitration agreement were an action or proceeding or
civil proceedings or legal proceedings or civil legal proceedings
within the
meaning of any such law.
(3) For the purposes of the application of the
laws referred to in subsection (2)—
(a) a reference of a
dispute to arbitration shall be deemed to be an action or proceeding or civil
proceedings or legal proceedings
or civil legal proceedings by or against any
person or corporate body instituted or pending in any court of law having
jurisdiction
if any party to the dispute has served on the other party or
parties thereto a written notice requiring him or them to appoint or
to agree
to the appointment of an arbitrator, or, where the arbitrator is named or
designated in the arbitration agreement, requiring
the dispute to be referred
to the arbitrator so named or designated; and.
(b) a reference of a
dispute to arbitration shall be deemed to be an action or proceeding which is
being or is about to be instituted
against a corporate body, if any party to
the dispute is taking steps to serve or is about to serve on the corporate body
a written
notice such as is referred to in paragraph (a).
(4) Any period of time fixed by
or under this Act which is interrupted by any stay, suspension or restraint
resulting from the application
of any law referred to in subsection (2), shall
be extended by a period equal to the period of such interruption.
6. Stay
of legal proceedings where there is an arbitration agreement
(1) If any party to an
arbitration agreement commences any legal proceedings in any court (including
any inferior court) against any
other party to the agreement in respect of any
matter agreed to be referred to arbitration, any party to such legal proceedings
may at any time after entering appearance but before delivering any pleadings
or taking any other steps in the proceedings, apply
to that court for a stay of
such proceedings.
(2) If on any such application
the court is satisfied that there is no sufficient reason why the dispute
should not be referred to arbitration
in accordance with the agreement, the
court may make an order staying such proceedings subject to such terms and
conditions as
it may consider just.
7. Power
of court to order that dispute be determined by interpleader proceedings or
that interpleader issues be determined by arbitration
(1) The court may order that
the dispute between parties to an arbitration agreement be determined by way of
interpleader proceedings
for the relief of any person desiring so to
interplead.
(2) Where in any interpleader
proceedings it is proved that the claims in question are matters to which an
arbitration agreement, to
which the claimants are parties, relates, the court
may order that the issues between the claimants be determined in accordance
with the arbitration agreement.
8. Power
of court to extend time fixed in arbitration agreement for commencing
arbitration proceedings
Where an
arbitration agreement to refer future disputes to arbitration provides that any
claim to which the agreement applies shall
be barred unless some step to
commence arbitration proceedings is taken within a time fixed by the agreement,
and a dispute arises
to which the agreement applies, the court, if it is of the
opinion that in the circumstances of the case undue hardship would otherwise
be
caused, may extend the time for such period as it considers proper, whether the
time so fixed has expired or not, on such terms
and conditions as it may
consider just but subject to the provisions of any law limiting the time for
commencing arbitration proceedings.
ARBITRATORS AND UMPIRES
9. Reference
to a single arbitrator
Unless a
contrary intention is expressed in the arbitration agreement, the reference
shall be to a single arbitrator.
10. Power
of parties to appoint arbitrators to fill vacancies
(1) Where an appointed
arbitrator refuses to act or is or becomes incapable of acting or dies or is
removed from office or his appointment
is terminated, or is set aside, and a
contrary intention is not expressed in the arbitration agreement, the party or
parties who
appointed him may appoint another arbitrator in his place.
(2) Where an arbitration
agreement provides that the reference shall be to two or more arbitrators, one
to be appointed by each party,
and any party fails to appoint an arbitrator in
terms of the agreement, or by way of substitution in the circumstances described
in subsection (1), then, unless the arbitration agreement expresses a contrary
intention, the other party, having appointed an
arbitrator, or the other
parties each having appointed an arbitrator, may serve the party in default
with a written notice requiring
him to appoint an arbitrator within seven days
after receipt of the notice.
(3) If the party in default
does not appoint an arbitrator within the period referred to in the notice
served upon him in terms of subsection
(2), the other party who has appointed
an arbitrator or the other parties who have each appointed an arbitrator may appoint
that
arbitrator or those arbitrators, as the case may be, to act as sole
arbitrator or arbitrators in the reference, and his or their
award shall be
binding on all parties as if he or they had been appointed by consent of all
parties: Provided that the court may,
on the application of the party in
default, on good cause shown, set aside such appointment and grant the party in
default an extension
of time to appoint an arbitrator.
11. Power
of parties or arbitrators to appoint umpire and to fill vacancy
(1) If an arbitration agreement
provides for a reference—
(a) to an even number of arbitrators, then,
unless a contrary intention is expressed therein, the arbitrators may at any
time appoint
an umpire; or
(b) to three arbitrators, of whom one is to be
appointed by the other two, such agreement shall, unless a contrary intention
is expressed
therein, he construed as providing for the appointment of an
umpire by the other two arbitrators immediately after they are themselves
appointed.
(2) Where an appointed umpire
refuses to act or is or becomes incapable of acting or dies or is removed from
office or his appointment
is terminated, or is set aside, and a contrary
intention is not expressed in the arbitration agreement, the parties or arbitrators
who appointed him may appoint another umpire in his place.
12. Power
of court to appoint an arbitrator or umpire
(1) Where—
(a) in terms of an arbitration agreement or this
Act the reference shall be to a single arbitrator and all the parties to the
reference
do not, after a dispute has arisen, agree in the appointment of an
arbitrator; or
(b) an arbitration agreement provides that the
reference shall be to an even number of arbitrators and the parties to the
reference
or the arbitrators are at liberty to appoint an umpire and do not
appoint him in any case where such appointment is necessary for
the decision of
the matters in dispute or the due conduct of the arbitration, or where the
parties or such arbitrators are required
to appoint an umpire and do not
appoint him; or
(c) where an arbitration agreement provides that
the reference shall he to two or more arbitrators one to be appointed by each
party,
and any party fails to appoint an arbitrator in terms of the agreement
or by way of substitution in the circumstances described
in subsection (1) of
section 10; or
(d) an arbitration agreement provides that the
reference shall be to three arbitrators one of whom is to be appointed (whether
as arbitrator
or as umpire) by the parties to the reference or by the other two
arbitrators and such arbitrator or umpire has not been appointed;
or
(e) an appointed arbitrator or umpire refuses to
act or is or becomes incapable of acting or dies, or is removed from office or
his
appointment is terminated or is set aside and the party or parties to the
reference or arbitrators who made the appointment are
at liberty to appoint another
arbitrator or umpire to fill the vacancy and do not appoint him in any case
where such appointment
is necessary for the decision of the matters in dispute
or the due conduct of the arbitration, or where the party or parties or
arbitrators who made the appointment is or are required to appoint another
arbitrator or umpire to fill such vacancy and does or
do not appoint him; or
(f) more than one arbitrator has to be appointed
and the parties to the reference do not, after a dispute has arisen, agree in
the appointment
of arbitrators so far as the arbitration agreement may require
such agreement,
any party to
the reference may serve the other party or parties or the arbitrators, as the
case may be, with a written notice requiring
him or them to appoint or if
agreement be necessary, to agree in the appointment of an arbitrator or
arbitrators or umpire.
(2) If the appointment referred
to in the notice served under subsection (1) is not made or agreed to, as the
case may be, within seven
days after the service of the notice, the party who
gave the notice, may upon notice to the other party or parties or the arbitrators,
as the case may be, apply to the court to make the necessary appointment, and
thereupon the court may appoint an arbitrator or
arbitrators or umpire.
(3) Where an arbitrator (not
being a sole arbitrator) or two or more arbitrators (not being all the
arbitrators) or an umpire who has
or have not entered on the reference is or
are removed by the court or his or their appointment or appointments is or are
set aside
by the court, and the arbitration agreement does not provide
otherwise, the court may, on the application of any party to the reference,
appoint an arbitrator or arbitrators or umpire to act in the place of the
arbitrator, arbitrators or umpire so removed or whose
appointment or
appointments has or have been so set aside.
(4) Where a sole arbitrator or
all the arbitrators or an umpire who has or have entered on the reference is or
are removed by the court,
or his or their appointment or appointments is or are
set aside by the court and the arbitration agreement does not provide
otherwise,
the court may, on the application of any party to the reference,
either—
(a) appoint an arbitrator or arbitrators or an
umpire to act in the place of the arbitrator, arbitrators or umpire so removed
or whose
appointment or appointments has or have been so set aside; or
(b) appoint a sole arbitrator to act in the place
of the sole arbitrator or all the arbitrators or umpire so removed or whose
appointment
or appointments has or have been so set aside; or
(c) order that the arbitration agreement shall
cease to have effect with respect to the dispute referred.
(5) An arbitrator or umpire
appointed by the court shall have the like power to act in the reference and
make an award as if he had
been appointed in accordance with the terms of the
arbitration agreement.
(6) An arbitrator or umpire
appointed in the circumstances described in subsection (1) of section 10 or subsection (2) of section 11 or subsection (2), (3) or (4) of
this section or an arbitrator appointed after the court has granted an
extension of time to do
so in the circumstances described in subsection (3) of
section 10, may avail himself
of the evidence recorded in the arbitration proceedings before his appointment
and may, if he think fit, recall
for further examination any person who has
given such evidence.
13. Termination
or setting aside of appointment of arbitrator or umpire
(1) Subject to the provisions
of subsection (2), the appointment of an arbitrator or umpire, unless a
contrary intention is expressed
in the arbitration agreement, shall not be
capable of being terminated except by consent of all the parties to the
reference.
(2)
(a) The court may at any time on the application
of any party to the reference, on good cause shown, set aside the appointment
of an
arbitrator or umpire or remove him from office.
(b) For the purposes of this subsection, the
expression “good cause”, includes failure on the part of the arbitrator or
umpire to
use all reasonable dispatch in entering on and proceeding with the
reference and making an award or, in a case where two arbitrators
are unable to
agree, in giving notice of that fact to the parties or to the umpire.
(3) Where the appointment of an
arbitrator or umpire is so set aside, or where an arbitrator or umpire is so
removed from office, the
court may, apart from any order for costs which may be
awarded against such arbitrator or umpire personally, order that such
arbitrator
or umpire shall not be entitled to any remuneration for his
services.
PROVISIONS AS TO ARBITRATION PROCEEDINGS
14. Powers
of arbitration tribunal and manner of arriving at decisions where the
arbitration tribunal consists of two or more arbitrators
(1) An arbitration tribunal may—
(a) on the application of any party to a
reference, unless the arbitration agreement otherwise provides—
(i) require
any party to the reference, subject to any legal objection, to make discovery
of documents by way of affidavit or by answering
interrogatories on oath and to
produce such documents for inspection;
(ii) require the parties to
the reference to deliver pleadings or statements of claim and defence or require any party to give particulars of his
claim or counterclaim, and allow any party to amend his pleadings or statements
of claim or defence;
(iii) require
any party to the reference to allow inspection of any goods or property
involved in the reference, which is in his possession
or under his control; and
(iv) appoint a commissioner to
take the evidence of any person in the Republic or abroad and to forward such
evidence to the tribunal
in the same way as if he were a com· missioner
appointed by the court;
[S
14(1)(a)(iv) am by s 1 (Sch item 2) of Act 49 of 1996.]
(b) unless the arbitration agreement otherwise
provides—
(i) from
time to time determine the time when and the place where the arbitration
proceedings shall be held or be proceeded with;
(ii) administer oaths to, or
take the affirmations of, the parties and witnesses appearing to give evidence;
(iii) subject to any legal
objection, examine the parties appearing to give evidence in relation to the
matters in dispute and require
them to produce before the tribunal all books,
documents or things within their possession or power which may be required or called
for and the production of which could be compelled on the trial of an action;
(iv) subject to any legal
objection, examine any person who has been summoned to give evidence and
require the production of any book,
document or thing which such person has
been summoned to produce;
(v) with the consent of the
parties or on an order of court, receive evidence given by affidavit; and
(vi) inspect any goods or
property involved in the reference.
(2) Where an arbitration
tribunal consists of two or more arbitrators, any oath or affirmation may be
administered by any member of
the tribunal designated by it for the purpose.
(3) Where an arbitration
tribunal consists of two arbitrators, their unanimous decision, and where it
consists of more than two arbitrators,
the decision of the majority of the
arbitrators, shall be the decision of the arbitration tribunal.
(4) Where the arbitrators, or a
majority of them, do not agree in their award, their decision shall not be
taken to be either the least
amount or least right of relief awarded by them,
or the average of what has been awarded by them, but the matter shall thereupon
become referable to the umpire, unless the arbitration agreement otherwise
provides.
15. Notice
of proceedings to parties
(1) An arbitration tribunal
shall give to every party to the reference, written notice of the time when and
place where the arbitration
proceedings will be held, and every such party
shall be entitled to be present personally or by representative and to be heard
at such proceedings.
(2) If any party to the
reference at any time fails, after having received reasonable notice of the
time when and place where the arbitration
proceedings will be held, to attend
such proceedings without having shown previously to the arbitration tribunal
good and sufficient
cause for such failure, the arbitration tribunal may
proceed in the absence of such party.
16. Summoning of witnesses
(1) The issue of a summons to compel any person
to attend before an arbitration tribunal to give evidence and to produce books,
documents
or things to an arbitration tribunal, may be procured by any party to
a reference in the same manner and subject to the same conditions
as if the
reference were a civil action pending in the court having jurisdiction in the
area in which the arbitration proceedings
are being or are about to be held:
Provided that—
(a) no person shall be compelled by such a
summons to produce any book, document or thing the production of which would
not be compellable
on trial of an action; and
(b) the clerk of the magistrate's court having
jurisdiction in the said area, may issue such summons upon payment of the same
fees as
are chargeable for the issue of a subpoena in a civil case pending in
the magistrate's court.
(2) Any summons issued out of
any court in terms of subsection (1) shall be served in the same manner as a
subpoena issued out of that
court in a civil action pending in that court.
(3) The provisions of subsections (3) and (4)
of section 87 of the
Correctional Services Act, 1959, (Act 8 of 1959), relating to the service of a
subpoena upon any prisoner to give evidence
in civil proceedings in any court,
shall mutatis mutandis apply
with reference to the service of a summons upon any prisoner required to give
evidence before an arbitration tribunal as if
the proceedings before such
tribunal were civil proceedings pending in a court.
[S 16(3) am by s 4 (Sch III) of Act 18 of 1996.]
(4) On the application of any party to a
reference, the court may order the process of the court to issue to compel the
attendance of
a witness before the arbitration tribunal or may order any
prisoner to be brought before such arbitration tribunal for examination.
17. Recording
of evidence
If not recorded by the arbitration tribunal itself,
the oral evidence of witnesses shall be recorded in such manner and to such
extent as the parties to the reference may agree or, failing such agreement, as
the arbitration tribunal may from time to time direct
after consultation with
the parties.
18. Reference
of particular points to umpire
Where the arbitrators or a majority of them are unable
to agree as to any matter of procedure, or any interlocutory question, they
may
refer that matter or question forthwith to the umpire for decision.
19. Powers
of umpire
Unless the arbitration agreement otherwise provides—
(a) the umpire may sit
together with the arbitrators and hear the evidence given from time to time and
may then and there decide any
matter of procedure or any interlocutory question
upon which the arbitrators disagree and which is referred by them to him for
decision;
(b) an umpire shall not
be entitled to any remuneration from the parties in respect of his attendance
at any arbitration proceedings
conducted by the arbitrators unless the parties
have requested him so to attend or unless he is called upon to decide any matter
of procedure or any interlocutory question at the request of the arbitrators or
is required to enter on the reference and to give
an award;
(c) if the arbitrators
have by notice in writing advised the parties to the reference, or the umpire.
that they are unable to agree,
or if the arbitrators have allowed the time or
extended time for making their award to expire without making an award, and the
parties have not advised the umpire that they intend to grant an extension or
further extension of the said period or to apply to
the court therefor, the
umpire shall forthwith enter on the reference in lieu of the arbitrators;
(d) an umpire who enters on a reference as
provided in paragraph (c), shall
have the same powers as if he had been appointed as sole arbitrator, and may
for that purpose unless he is required by the
parties to hear the evidence of
the parties and their witnesses, or, whenever he is called upon by the
arbitrators to decide any
matter of procedure or any interlocutory question,
act upon the evidence recorded in the proceedings before the arbitrators, and
may, if he thinks fit, recall for further examination any person who has given
such evidence.
20. Statement
of case for opinion of court or counsel during arbitration proceedings
(1) An arbitration tribunal may, on the
application of any party to the reference and shall, if the court, on the
application of any
such party, so directs, or if the parties to the reference
so agree, at any stage before making a final award state any question
of law
arising in the course of the reference in the form of a special case for the
opinion of the court or for the opinion of
counsel.
(2) An opinion referred to in subsection (1)
shall be final and not subject to appeal and shall be binding on the
arbitration tribunal
and on the parties to the reference.
21. General
powers of the court
(1) For the purposes of and in relation to a
reference under an arbitration agreement, the court shall have the same power
of making
orders in respect of—
(a) security for costs;
(b) discovery of
documents and interrogatories;
(c) the examination of
any witness before a commissioner in the Republic or abroad and the issue of a
commission or a request for such
examination;
[S 21(1)(c) am
by s 1 (Sch item 3) of Act 49 of 1996.]
(d) the giving of
evidence by affidavit;
(e) the inspection or the
interim custody or the preservation or the sale of goods or property;
(f) an interim interdict or similar relief;
(g) securing the amount
in dispute in the reference;
(h) substituted service
of notices required by this Act or of summonses; and
(i) the appointment of a receiver,
as it has for the purposes of and in relation to any
action or matter in that court.
(2) The provisions of subsection (1) shall not
be construed so as to derogate from any power which may be vested in an
arbitration tribunal
of making orders with reference to any of the matters
referred to in the said subsection.
(3) Notwithstanding anything to the contrary in
the arbitration agreement, the court may at any time, on the application of any
party
to the reference, order that the umpire shall enter upon the reference in
lieu of the arbitrators in all respects as if he were
a sole arbitrator.
22. Offences
(1) Any person who—
(a) without good cause,
fails to appear in answer to a summons to give evidence before an arbitration
tribunal; or
(b) having so appeared,
fails to remain in attendance until excused from further attendance by the
arbitration tribunal; or
(c) upon being required
by an arbitration tribunal to be sworn or to affirm as a witness, refuses to do
so; or
(d) refuses to answer
fully and to the best of his knowledge and belief any question lawfully put to
him during any arbitration proceedings;
or
(e) without good cause,
fails to produce before an arbitration tribunal any book, document or thing
specified in a summons requiring
him so to produce it; or
(f) while arbitration
proceedings are in progress, wilfully insults any
arbitrator or umpire conducting such proceedings, or wilfully
interrupts such proceedings or otherwise misbehaves himself in the place where
such proceedings are being conducted,
shall be guilty of an offence and liable on conviction
to a fine not exceeding one hundred rand or to imprisonment for a period not
exceeding three months: Provided that in connection with the interrogation of
any such person or the production of any such book,
document or thing the law
relating to privilege as applicable to a witness subpoenaed to give evidence or
to produce any book,
document or thing before a court of law shall apply.
(2) Any person who, having been sworn or having
made an affirmation, knowingly gives false evidence before an arbitration
tribunal,
shall be guilty of an offence and liable on conviction to the
penalties prescribed by law for perjury.
PROVISIONS AS TO AWARDS
23. Time for making award
The arbitration tribunal shall, unless the arbitration
agreement otherwise provides, make its award—
(a) in the case of an
award by an arbitrator or arbitrators, within four months after the date on
which such arbitrator or arbitrators
entered on the reference or the date on
which such arbitrator was or such arbitrators were called on to act by notice
in writing
from any party to the reference, whichever date be the earlier date;
and
(b) in the case of an
award by an umpire, within three months after the date on which such umpire
entered on the reference or the date
on which such umpire was called on to act
by notice in writing from any party to the reference, whichever date be the
earlier date,
or in either case on
or before any later date to which the parties by any writing signed by them may
from time to time extend the
time for making the award: Provided that the court
may, on good cause shown, from time to time extend the time for making any
award,
whether that time has expired or not.
24. Award
to be in writing
(1) The award shall be in writing and shall be
signed by all the members of the arbitration tribunal.
(2) If a minority of the members of the
arbitration tribunal refuse to sign the award, such refusal shall be mentioned
in the award
but shall not invalidate it.
25. Publication
of award
(1) The award shall be delivered by the
arbitration tribunal, the parties or their representatives being present or
having been summoned
to appear.
(2) The award shall be deemed to have been
published to the parties on the date on which it was so delivered.
26. Interim
award
Unless the arbitration agreement provides otherwise,
an arbitration tribunal may make an interim award at any time within the period
allowed for making an award.
27. Specific
performance
Unless the arbitration agreement provides otherwise,
an arbitration tribunal may order specific performance of any contract in any
circumstances in which the court would have power to do so.
28. Award
to be binding
Unless the arbitration agreement provides otherwise,
an award shall, subject to the provisions of this Act, be final and not subject
to appeal and each party to the reference shall abide by and comply with the
award in accordance with its terms.
29. Interest
on amount awarded
Where an award orders the payment of a sum of money,
such sum shall, unless the award provides otherwise, carry interest as from
the
date of the award and at the same rate as a judgment debt.
30. Power
of arbitration tribunal to correct errors in award
An arbitration tribunal may correct in any award any
clerical mistake or any patent error arising from any accidental slip or
omission.
31. Award
may be made an order of court
(1) An award may, on the application to a court
of competent jurisdiction by any party to the reference after due notice to the
other
party or parties, be made an order of court.
(2) The court to which application is so made,
may, before making the award an order of court, correct in the award any
clerical mistake
or any patent error arising from any accidental slip or
omission.
(3) An award which has been made an order of
court may be enforced in the same manner as any judgment or order to the same
effect.
32. Remittal
of award
(1) The parties to a reference may within six
weeks after the publication of the award to them, by any writing signed by them
remit
any matter which was referred to arbitration, to the arbitration tribunal
for reconsideration and for the making of a further award
or a fresh award or
for such other purpose as the parties may specify in the said writing.
(2) The court may, on the application of any
party to the reference after due notice to the other party or parties made
within six weeks
after the publication of the award to the parties, on good
cause shown, remit any matter which was referred to arbitration, to the
arbitration tribunal for reconsideration and for the making of a further award
or a fresh award or for such other purpose as the
court may direct.
(3) When a matter is remitted under subsection
(1) or (2) the arbitration tribunal shall, unless the writing signed by the
parties or
the order of remittal otherwise directs, dispose of such matter
within three months after the date of the said writing or order.
(4) Where in any case referred to in subsection
(1) or (2) the arbitrator has died after making his award, the award may be
remitted
to a new arbitrator appointed, in the case of a remittal under
subsection (1), by the parties or, in the case of a remittal under
subsection
(2), by the court.
33. Setting
aside of award
(1) Where—
(a) any member of an
arbitration tribunal has misconducted himself in relation to his duties as
arbitrator or umpire; or
(b) an arbitration
tribunal has committed any gross irregularity in the conduct of the arbitration
proceedings or has exceeded its powers;
or
(c) an award has been improperly obtained,
the court may,
on the application of any party to the reference after due notice to the other
party or parties, make an order setting
the award aside.
(2) An application pursuant to
this section shall be made within six weeks after the publication of the award
to the parties: Provided
that when the setting aside of the award is requested
on the grounds of the commission of an offence referred to in Part 1 to 4,
or
section 17, 20 or 21 (in so far as it relates to the aforementioned offences)
of Chapter 2 of the Prevention and Combatting
of Corrupt Activities Act, 2004,
such application shall be made within six weeks after the discovery of the [sic] that offence and in any case not
later than three years after the date on which the award was so published.
[S 33(2) subs by s 36 (Sch) of Act 12 of 2004.]
(3) The court may, if it
considers that the circumstances so require, stay enforcement of the award
pending its decision.
(4) If the award is set aside
the dispute shall, at the request of either party, be submitted to a new
arbitration tribunal constituted
in the manner directed by the court.
REMUNERATION OF ARBITRATORS AND UMPIRE AND
COSTS
34. Remuneration of arbitrators and umpire
(1) Where the fees of the
arbitrator or arbitrators or umpire have not been fixed by an agreement between
him or them and the parties
to the reference, any party to the reference may,
notwithstanding that such fees may already have been paid by the parties, or
any of them, require such fees to be taxed, and thereupon such fees shall be
taxed by the taxing master of the court.
(2) Any taxation of fees under
this section may be reviewed by the court in the same manner as a taxation of
costs.
(3) The arbitrator or
arbitrators or umpire shall be entitled to appear and be heard at any taxation
or review of taxation under this
section.
(4) The arbitrator or
arbitrators or an umpire may withhold his or their award pending payment of his
or their fees and of any expenses
incurred by him or them in connection with
the arbitration with the consent of the parties, or pending the giving of security
for
the payment thereof.
35. Costs of arbitration proceedings
(1) Unless the arbitration
agreement otherwise provides, the award of costs in connection with the
reference and award shall be in the
discretion of the arbitration tribunal,
which shall, if it awards costs, give directions as to the scale on which such
costs are
to be taxed and may direct to and by whom and in what manner such
costs or any part thereof shall be paid and may tax or settle
the amount of
such costs or any part thereof, and may award costs as between attorney and
client.
(2) If no provision is made in
an award with regard to costs, or if no directions have been given therein as
to the scale on which such
costs shall be taxed, any party to the reference may
within 14 days of the publication of the award, make application to the
arbitration
tribunal for an order directing by and to whom such costs shall be
paid or giving directions as to the scale on which such costs
shall be taxed,
and thereupon the arbitration tribunal shall, after hearing any party who may
desire to be heard, amend the award
by adding thereto such directions as it may
think proper with regard to the payment of costs or the scale on which such
costs shall
be taxed.
(3) If the arbitration tribunal
has no discretion as to costs or if the arbitration tribunal has such a
discretion and has directed
any party to pay costs but does not forthwith tax
or settle such costs, or if the arbitrators or a majority of them cannot agree
in their taxation, then, unless the agreement otherwise provides, the taxing
master of the court may tax them.
(4) If an arbitration tribunal
has directed any party to pay costs but has not taxed or settled such costs,
then, unless the arbitration
agreement provides otherwise, the court may, on
making the award an order of court, order the costs to be taxed by the taxing
master
of the court and, if the arbitration tribunal has given no directions as
to the scale on which such costs shall be taxed, fix the
scale of such
taxation.
(5) Any taxation of costs by
the taxing master of the court may be reviewed by the court.
(6) Any provision contained in
an arbitration agreement to refer future disputes to arbitration to the effect
that any party or the
parties thereto shall in any event pay his or their own
costs or any part thereof, shall be void.
36. Costs of legal proceedings
An order made or opinion given by the court under this
Act may be made or given on such terms as to costs, including costs against
an
arbitrator or umpire, as the court considers just.
MISCELLANEOUS PROVISIONS
37. Service of notices
Unless the arbitration agreement provides otherwise,
any notice required by any provision of this Act to be served on any person,
may be served either—
(a) by delivering it to
the person on whom it is to be served; or
(b) by leaving it at the
usual or last known place of residence of that person in the Republic; or
[S 37(b) am by
s 1 (Sch item 4) of Act 49 of 1996.]
(c) by sending it by post
to that person at his usual or last known place of residence in the Republic;
or
[S 37(c) am by
s 1 (Sch item 4) of Act 49 of 1996.]
(d) in any other manner authorised by the court.
38. Extension
of periods fixed by or under this Act
The court may, on good cause shown, extend any period
of time fixed by or under this Act, whether such period has expired or not.
39. This
Act binds the State
This Act shall apply to any arbitration in terms of an
arbitration agreement to which the State is a party, other than an arbitration
in terms of an arbitration agreement between the State and the Government of a
foreign country or any undertaking which is wholly
owned and controlled by such
a Government.
40. Application
of this Act to arbitrations under special laws
This Act shall apply to every arbitration under any
law passed before or after the commencement of this Act, as if the arbitration
were pursuant to an arbitration agreement and as if that other Jaw were an
arbitration agreement: Provided that if that other Jaw
is an Act of Parliament,
this Act shall not apply to any such arbitration in so far as this Act is
excluded by or is inconsistent
with that other law or is inconsistent with the
regulations or procedure authorised or recognised by that other law.
41. …
[S 41 rep by s
1 (Sch item 5) of Act 49 of 1996.]
42. Repeal
of laws
(1) The Arbitrations Act, 1898 (Act 29 of
1898), of the Cape of Good Hope, the Arbitration Act, 1898 (Act 24 of 1898), of
Natal, the
Arbitration Ordinance, 1904 (Ordinance 24 of 1904), of the
Transvaal, and the Arbitration Proclamation (Proclamation 3 of 1926),
of
South-West Africa, are hereby repealed.
(2) Any arbitration, enquiry or trial commenced
prior to the commencement of this Act in terms of any law repealed by
subsection (1)
shall be proceeded with in all respects as if such repeal had
not been effected.
(3) Any arbitration commenced after the
commencement of this Act under any arbitration agreement entered into before
such commencement,
shall be dealt with under this Act in all respects as if
such agreement had been entered into after such commencement.
43. Short title
This Act shall be
called the Arbitration Act, 1965.