SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Veronica Connolly and Kyle Melville, Herbert Smith Freehills Kramer
6. Preliminary and Interim Relief 6.1 Types of Relief
Interim Relief in aid of Foreign-Seated Arbitrations The IAA allows courts to issue orders in support of arbitration, irrespective of whether the seat of arbi - tration is within South Africa or abroad. The interim measures that may be ordered are the following: • an order for the preservation, interim custody or sale of any goods that are the subject matter of the dispute; • an order securing the amount in dispute, but not an order for security for costs; • an order appointing a liquidator; • any other orders to ensure that any award that may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by the other party; and • an interim interdict or other interim order. Furthermore, the South African courts are required to stay any proceedings that are brought before them if the dispute is subject to an arbitration agreement, regardless of the seat of the dispute. Anti-Suit Injunctions/Interdicts In South Africa, the only reported case pertaining to anti-suit injunctions in the context of international arbitration is Vedanta Resources Holdings Limited v ZCCM Investment Holdings PLC 2019 JDR 1425 (GJ), which confirmed that South African courts are prepared to issue anti-suit injunctions in appropriate circumstances. The case concerned an urgent appli - cation brought by Vedanta for an anti-suit injunction to restrain winding-up proceedings that ZCCM had insti - tuted in Zambia. The underlying dispute had arisen under a shareholders’ agreement containing an arbi - tration clause that envisaged a South African-seated arbitration. The High Court in Vedanta held that the applicant must demonstrate the following. • That the arbitration clause is mandatory. • That the dispute falls within the ambit of the arbi - tration agreement and is arbitrable. • That the South African law requirements for an interdict are satisfied, namely: (a) a clear right to the relief; (b) a well-grounded apprehension of irreparable
The IAA empowers tribunals to award preliminary or interim relief, at the request of a party. This includes measures requiring a party to: • provide a means of preserving assets out of which a subsequent award may be satisfied; • maintain or restore the status quo, pending deter - mination of the dispute; • prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself; • preserve evidence that may be relevant and mate - rial to the resolution of the dispute; or • provide security for costs (only against a claiming or counter-claiming party). Interim measures are binding and the IAA requires that they must be enforced, upon application, by a court, unless there are specific grounds for refusing the rec - ognition and enforcement. The AFSA International Rules also recognise the tribu - nal’s power to grant interim relief, ensuring that these measures are enforceable and effective. 6.2 Role of Courts The Role of the Courts in Granting Interim Relief The IAA allows the South African courts to order inter - im relief upon the application of a party only in the following circumstances: • if the arbitral tribunal has not yet been appointed and the matter is urgent; • if the arbitral tribunal is not competent to grant the order; or • if the urgency of the matter means that obtain - ing the order from the arbitral tribunal would be impractical. A court may not grant such an order if the arbitral tri - bunal, being competent to grant the order, has already determined the matter, nor may it grant such an order beyond the scope of the above-listed circumstances.
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