SOUTH AFRICA Trends and Developments Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Veronica Connolly and Kyle Melville, Herbert Smith Freehills Kramer
courts are obliged to stay court proceedings in favour of arbitration. This approach was reinforced in Industrial Develop- ment Corporation of South Africa Ltd and Another v Kalagadi Manganese ( Pty ) Ltd [2025] ZASCA 70, where the SCA emphasised that courts must refer disputes to arbitration under the IAA unless one of the limited statutory exceptions applies. The position was strengthened further in Kingdom of Lesotho v Frazer Solar GmbH and Others [2026] ZASCA 75, the most significant judicial consideration of the IAA to date. There, the SCA held that the three- month period for bringing a set-aside application under Article 34 of the Model Law is peremptory and not subject to a general discretion to extend. In reach - ing that conclusion, the Court stressed that the IAA must be interpreted consistently with its international origins and with the need for uniformity among Model Law jurisdictions. Significantly, the Court observed that strict adherence to the time limit “promotes uni - formity and predictability, key attributes that enhance the Republic’s attractiveness as a seat for interna - tional arbitration”. Taken together, Tee Que , Kalagadi Manganese and most recently Frazer Solar reflect a judiciary that is increasingly committed to enforcing arbitration agree - ments, limiting judicial intervention and preserving the finality of arbitral awards. In doing so, the courts are reinforcing confidence in South Africa as a stable, pre - dictable and arbitration-friendly jurisdiction. Those developments do not mean that South Africa’s arbitral position is complete or uncontested. Rather, they show that the country has built a credible plat - form from which to address remaining weaknesses. The most important of those weaknesses are not matters of formal legal architecture but practical and policy questions that affect confidence in arbitration as a final, efficient and commercially useful process. Navigating Residual Challenges Thinly disguised appeals A practical challenge that continues to arise in both the domestic and international arbitration spheres is the increasing tendency of unsuccessful parties to
challenge arbitral awards through review proceedings that, in substance, seek to revisit the merits. To date, the South African courts have given such attempts to revisit the merits short shrift. Recent domestic decisions demonstrate a consistent judicial unwillingness to allow review proceedings to become appeals by another name, reaffirming that judicial intervention remains confined to genuine procedural or jurisdictional defects within the circumstances per - mitted by the IAA. This encouraging stance reflects the pro-arbitration position of the South African courts and is consistent with other Model Law-aligned jurisdictions, such as Singapore, Hong Kong, England and Australia, where courts have repeatedly been required to distinguish between legitimate procedural challenges and imper - missible attempts to obtain a second hearing on the merits. However, even unsuccessful review applications can have significant negative consequences because they delay the implementation of arbitral awards. This is especially so in the construction, infrastructure and energy sectors, where projects are heavily dependent on financing milestones, cash flow and investor con - fidence. Parties in those sectors often choose arbi - tration precisely because they require quick, expert and final determinations to maintain commercial certainty and project momentum. Arbitral awards in these sectors frequently determine entitlement to pay - ment, extensions of time, damages, variation claims or declaratory relief regarding ongoing contractual obligations. Where enforcement is delayed by review proceedings that ultimately amount to little more than disguised appeals, contractors and subcontractors may face liquidity pressures, financing costs may increase, and project timelines may be disrupted. In more serious instances, prolonged delays may threaten the viability of the project itself. The Johannesburg High Court has adopted measures to expedite the resolution of arbitration-related dis - putes, including review proceedings, to mitigate these delays and their harmful consequences. However, it
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