Arbitration As An Alternative Dispute Resolution Mechanism In South Africa

South African courts carry heavy backlogs, and many civil matters take years to conclude. That pressure recently prompted the Gauteng Division of the High Court to require mediation (with a mediator's report) before a trial date is allocated. Mediation may be getting all the headlines currently, but, arbitration remains a powerful, private alternative that can reduce court congestion, improve access to justice, and resolve disputes more quickly and confidentially.

Unlike mediation, arbitration is consensual and adjudicative. Parties agree in writing to refer disputes to an independent arbitrator who hears the matter and issues a binding decision – an arbitration award – under the Arbitration Act 42 of 1965.

Finality and limited court interference

Section 28 of the Act provides that an arbitration award is final and binding between the parties. There is no appeal on the merits. Court involvement is limited and supervisory. A court may remit an award back to the tribunal in narrow circumstances or set it aside for serious defects in process, not because it would have reached a different outcome.

Remittal (sending the matter back)

Within six weeks of publication of the award, the parties may jointly agree in writing to remit the dispute to the tribunal for reconsideration or for a fresh/further award (section 32). If they cannot agree, either party may apply to court – on notice to the other and on good cause – for an order of remittal. Once remitted, the tribunal typically has three months to dispose of the matter from the date of remittal.

Setting aside (review, not appeal)

A court may set an award aside (on application, within six weeks of publication) only if:

• A member of the tribunal misconducted themself in relation to their duties,
• The tribunal committed a gross irregularity in the conduct of proceedings or exceeded its powers, or
• The award was improperly obtained (section 33).

If an award is set aside, either party may require that the dispute be submitted to a new tribunal. This is a safeguard for process integrity, not a second bite at the merits.

Practical Applications

• When parties have agreed to arbitration, and the process has run its course, the award is not appealable.
• Courts review the process, not outcomes; they will not re-decide the dispute.
• Remittal (section 32) and setting aside (section 33) are time-sensitive: act within six weeks of the award's publication.
• If the losing party complies voluntarily, you may not need court at all; if not, you can apply to have the award made an order of court for enforcement.

Arbitration gives parties a private, efficient forum and a binding result, with limited, time-bound avenues to fix serious procedural defects. Understanding the remittal and setting-aside routes and their strict timelines, helps parties protect both speed and fairness.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.