In an arbitration relating to obligations under a written lease agreement, the arbitrator made a ruling that an overpaid amount was recoverable. The lessor contended that the arbitrator was not allowed to make an enrichment claim award. The Supreme Court of Appeal held that the arbitration clause which referred to “any dispute or difference or doubt or question” was wide enough to permit the arbitrator to make a ruling on liability. The tenant did not ask for nor get an award in the form of money and no wrong decision was made by the arbitrator.

The court referred to a UK decision that the construction of an arbitration clause should start from the assumption that the parties, as rational businesspersons, are inclined to have intended that any dispute arising out of the relationship into which they have entered should be decided by the same tribunal, namely the arbitrator unless the language makes it clear that the arbitrator’s jurisdiction is limited. The dispute related to the calculation of amounts in invoices that had been overpaid by the tenant. Even on a narrow construction, the objection to the invoices and the disputed liability in that regard fell within the jurisdiction of the arbitrator as “any dispute or difference or doubt or question arising between the parties as to the interpretation of any provision of this agreement or the implementation thereof”. It was a dispute arising between the parties regarding the implementation of the agreement.

One of the reasons for a liberal construction of arbitration clauses is the presumption in favour of a one-stop arbitration.

The challenge to the arbitrator’s ruling also failed because the lessor sought to review the decision without alleging there was any misconduct or gross irregularity in reaching the decision of the arbitrator. Secondly, the arbitration was not final and the approach to the court was premature.

The courts encourage parties to resolve their disputes by arbitration and will not easily assume authority to determine disputes that belong in arbitration proceedings.

[Dis-Chem Pharmacies Limited v Dainfern Square (Pty) Ltd [2023] ZASCA 115 (27 July 2023)]