The Arbitration Process Step by Step in South Africa

The arbitration process in South Africa under the Arbitration Act 42 of 1965 runs from a written arbitration agreement — a pre-dispute clause or a post-dispute submission agreement — through referral, appointment of the arbitrator(s), pleadings and discovery, the hearing, and then a written, signed award that is final and binding subject only to the limited grounds in section 33. Where the losing party will not comply, the award is made an order of court under section 31 by a High Court division of competent jurisdiction, after which it is enforceable like a judgment. Commercial arbitration typically takes three to twelve months from referral to award. Unfair-dismissal and unfair-labour-practice arbitration is a separate track under the Labour Relations Act 66 of 1995, run through the CCMA, a bargaining council, or the Labour Court.

What Arbitration Is (and What It Isn’t)

Arbitration is a consensual, private process in which the parties refer their dispute to one or more independent arbitrators instead of a court. The arbitrator hears evidence and argument in a format resembling a court hearing and issues a written award that is, by default, final and binding. It is private — neither proceedings nor award form part of a public court record — and consensual, in that it can only run if the parties agreed to it.

• It is not mediation. A mediator helps the parties reach their own settlement and cannot impose an outcome; an arbitrator decides the dispute.
• It is not court litigation, though the ordinary rules of evidence and procedural fairness generally still apply and the tribunal’s powers deliberately mirror a court’s.
• It is not available for every dispute. Section 2 of the Act excludes matrimonial matters and matters incidental to them, and any matter relating to status.

The Two South African Frameworks: Commercial vs Labour Arbitration

Establish first which of two statutory tracks applies, because procedure, forum, timelines, and review grounds all differ.

Private and commercial arbitration is governed by the Arbitration Act 42 of 1965, which applies to any dispute the parties agreed in writing to arbitrate unless another Act provides otherwise; it has not been replaced and remains the controlling statute. Workplace arbitration of dismissal and unfair-labour-practice disputes runs instead under the LRA, and section 210 of that Act gives it precedence over conflicting legislation — which is why a dismissal dispute cannot be routed into the 1965 Act’s machinery.

This guide covers the commercial track step by step, then closes with a note on the labour track. Burger Huyser Attorneys handles commercial arbitration and award enforcement inside its general litigation practice, while CCMA matters sit with the firm’s Labour Law capability under consultant Marius Ferreira.

Step 1 — The Arbitration Agreement (Where It Starts)

Every arbitration must be founded on a written agreement to arbitrate: either a pre-dispute arbitration clause signed before the dispute arose (typically “any dispute arising out of or in connection with this contract shall be finally resolved by arbitration”), or a post-dispute submission agreement concluded by parties already in dispute. A well-drafted agreement settles the architecture up front:

Term	Why it matters
Seat of arbitration	Determines which court supervises the process and where enforcement is naturally brought
Number of arbitrators	Drives cost and speed; section 9 defaults to a single arbitrator where the agreement is silent
Applicable rules	Sets the procedural timetable, disclosure obligations, and challenge procedure
Administered or ad hoc	An administered arbitration (for example under AFSA) provides secretariat support; an ad hoc arbitration is run by the parties and tribunal alone
Language and confidentiality	Avoids a preliminary fight over the record and over disclosure to third parties

An invalid or inoperative agreement is the most common reason arbitrations collapse before they begin. Where a valid one exists, section 6 empowers a court to stay legal proceedings brought in breach of it.

Step 2 — Triggering Arbitration: Notice of Arbitration and Referral

The claimant starts the process by delivering a written notice of arbitration, or referral, identifying the parties, the contract and clause relied on, the dispute, and the relief claimed, usually attaching the arbitration agreement. Delivery starts the agreed time limits for filing an answer and nominating an arbitrator. Where the agreement fixes a time for commencing arbitration and that time has run out, section 8 allows a court to extend it. A formal letter of demand normally precedes the notice, and many disputes settle at that stage.

Step 3 — Appointment of the Arbitrator(s)

The parties’ agreement governs first: a common structure in larger contracts is that each side appoints one arbitrator and the two co-arbitrators appoint the presiding arbitrator. Where the agreement is silent on number, section 9 provides for a single arbitrator. Where the agreed machinery fails, the Act supplies a fallback:

• Section 10 — the parties may appoint arbitrators to fill vacancies
• Section 11 — the parties or arbitrators may appoint an umpire and fill a vacancy in that office
• Section 12 — a court may appoint an arbitrator or umpire where the parties cannot agree
• Section 13 — a court may terminate or set aside an appointment already made

Tribunal size is a real cost decision: a single arbitrator is faster and materially cheaper for smaller disputes, while a three-member tribunal is usual in high-value matters. The arbitrator must be impartial and independent, and a disclosed conflict entitles a party to challenge the appointment under the applicable rules or, ultimately, section 13.

Step 4 — The Procedural Framework: Terms of Reference and Pleadings

The tribunal convenes a preliminary meeting and draws up terms of reference (the arbitrator’s mandate) framing the issues, the relief sought, and the timetable. The mandate defines the outer boundary of the arbitrator’s authority, and exceeding it is a ground on which the award can later be attacked. The parties then exchange a statement of claim, a statement of defence, and where necessary a reply; section 14 empowers the tribunal to direct pleadings and particulars. Pleadings fix the issues, and an arbitrator generally cannot decide an issue not pleaded. A typical timetable sets dates for:

1. Statement of claim and statement of defence
2. Discovery and inspection of documents
3. Exchange of witness statements and expert reports
4. Preparation and exchange of hearing bundles
5. The hearing
6. The date by which the award is due

Step 5 — Discovery, Documents, and Witness Statements

Discovery requires each party to list and produce the documents on which it relies together with other relevant documents. Section 14 authorises the tribunal to order discovery and inspection and to receive evidence by affidavit; section 16 allows witnesses to be summoned, but preserves the ordinary limits, so no person may be compelled to produce a document that would not be compellable at the trial of an action. Bundles are exchanged in advance so the hearing is not consumed by document handling, and witness statements — commonly in affidavit form in South African practice — are exchanged beforehand so hearing time is spent on cross-examination. Expert reports follow the same timetable where the dispute turns on a technical question such as engineering defect, valuation, or accounting treatment.

Step 6 — The Hearing

An arbitration hearing follows a sequence familiar from a High Court trial:

1. Opening statements by each party
2. The claimant leads its evidence, with cross-examination and re-examination of each witness
3. The respondent leads its evidence on the same basis
4. Expert evidence, where required
5. Closing argument, orally or in written heads
6. The tribunal closes the record

The arbitrator controls procedure under section 14 and the agreed rules, including rulings on admissibility and the questioning of witnesses. Section 17 governs the recording of evidence: some tribunals require a verbatim transcript, others work from the arbitrator’s notes — a choice with a direct cost consequence, best settled early. Where a witness will not attend voluntarily, section 16 provides the compulsion machinery and section 22 makes non-compliance an offence.

Step 7 — The Award

Once the record closes, the arbitrator prepares the award. Its formal requirements are set out in the Act:

Requirement	Provision
Award made within four months of the tribunal entering on the reference (three months for an umpire), unless extended	Section 23 (extension under section 38)
Award in writing and signed by all members; a minority refusal to sign is recorded but does not invalidate it	Section 24
Award published — delivered — to the parties	Section 25
Interim award permitted on part of the dispute	Section 26
Tribunal may order specific performance where a court could have done so	Section 27
Award final and binding on the parties to the reference	Section 28
Clerical mistakes and patent errors may be corrected without reopening the merits	Section 30

Reasons are the commercial expectation rather than the exception: they let the parties assess whether any section 33 ground exists. Costs fall under section 35 and interest on the amount awarded under section 29.

Step 8 — Remittal, Setting Aside, and Review of an Award

The grounds for attacking an award are deliberately narrow, because parties who choose arbitration choose finality. Two routes exist.

Remittal under section 32

A party may apply to send the award, or a matter referred, back to the tribunal for reconsideration. The application must be brought within six weeks of publication, and the tribunal must dispose of the remitted matter within three months unless the court directs otherwise.

Setting aside under section 33

A court may set an award aside only where the applicant establishes one of the grounds in section 33(1):

• A member of the tribunal misconducted himself in relation to his duties as arbitrator or umpire
• The tribunal committed a gross irregularity in the conduct of the proceedings, or exceeded its powers
• The award was improperly obtained

The application must be made within six weeks after publication of the award to the parties, in a High Court division of competent jurisdiction. Missing that short period is the most common way a party with a legitimate complaint loses the right to raise it. These grounds are far narrower than those for appealing a judgment: there is no appeal on the merits, and an arbitrator who reaches a conclusion a judge might not have reached has not thereby committed a gross irregularity. An award set aside is treated as never having been made; one that survives challenge is final.

Step 9 — Enforcement of an Award Under Section 31

An award binds the parties but is not self-executing. Where the losing party will not pay or perform, section 31 provides the mechanism: on application to a court of competent jurisdiction by any party to the reference, after due notice, the award may be made an order of court. It then carries the full force of a judgment, enforceable by writ of execution against movable or immovable property. Section 21 confers general supervisory powers on the court and section 36 deals with the costs of those proceedings. A party resisting registration bears the burden of establishing a limited statutory ground, and will usually need to have launched a section 32 or 33 application within the six-week window to have anything to say at all.

Which Court Registers or Sets Aside a Commercial Award

Although the Act applies nationally and parties may seat their arbitration wherever they agree, enforcement is a jurisdictional question: the controlling venue is the High Court division with territorial jurisdiction. For Gauteng-based parties that is either the Gauteng Local Division, Johannesburg or the Gauteng Division, Pretoria — both empowered to make an award an order of court under section 31 and to hear a section 33 application. A magistrate’s court, however convenient, has no jurisdiction to register or set aside a commercial arbitration award, and an application launched in the wrong forum burns time the six-week period does not allow.

Burger Huyser Attorneys’ general litigation practice, headed by Director Nadine Roesch-Prinsloo from the Roodepoort branch, runs commercial litigation and award-related files through the Johannesburg or Pretoria seat as the matter requires, and the firm belongs to both the Johannesburg Attorneys Association and the Pretoria Attorneys Association. The practical first step for a party holding an award is to instruct an attorney in the division where the matter will be filed; branch contact details appear at the close of this guide.

A Short Comparative Note: Labour Arbitration Under the LRA

Workplace arbitration follows a separate procedure, and the differences are substantive:

• Forum: the arbitration is conducted by a CCMA commissioner, a bargaining council with sectoral jurisdiction, or a private arbitrator appointed under the LRA — not chosen by the parties in the commercial sense.
• Referral: section 191 requires a dismissal or unfair-labour-practice dispute to be referred in writing, with a 30-day referral period for dismissal disputes, and conciliation attempted before arbitration.
• Timing of the award: section 138(7) requires the commissioner to issue the award with brief reasons within 14 days of the close of proceedings, though extensions are common.
• Enforcement: section 143 makes a CCMA award final, binding, and enforceable as if it were an order of the Labour Court — without the section 31 registration step used for commercial awards.
• Review: section 145 allows application to the Labour Court, not an ordinary High Court division, to set the award aside for commissioner misconduct, gross irregularity, or exceeding of powers, within six weeks of service.

So a commercial dispute must not be routed through the CCMA, whose jurisdiction is confined to employment-related disputes — and a dismissal dispute cannot be arbitrated under the 1965 Act merely because the employment contract contains a general arbitration clause.

Comparison: Arbitration vs Mediation vs Court Litigation

Aspect	Arbitration	Mediation	Court litigation
Who decides	The arbitrator	The parties (mediator facilitates)	A judge or magistrate
Binding	Yes, subject to limited review	No — settlement is voluntary	Yes
Confidentiality	Generally private	Generally private	Public record
Typical duration	3–12 months	1–3 sessions	12–36+ months
Cost	Moderate to high, driven by tribunal size	Low	High, with full pleadings, discovery, and trial
Challenge or appeal	Limited (sections 32 and 33)	None	Right of appeal on law and fact
Source of authority	Contract, given effect by the Arbitration Act 42 of 1965	Contract	The State

The trade-off is straightforward: arbitration buys privacy, a technically informed decision-maker, and a timetable the parties help set, at the cost of the general right of appeal — a sensible bargain for a moderately complex commercial dispute, and a poor one where a party expects to need appellate scrutiny of the merits.

If you are weighing arbitration, facing an award you need to enforce, or considering an application to set one aside, Burger Huyser Attorneys’ general litigation practice can advise on the procedural route, draft the pleadings, and run the file in the Gauteng Local Division (Johannesburg) or the Gauteng Division, Pretoria. Initial enquiries can be directed to the Linden head office at 49 First Avenue, Linden, Randburg on 011 888 0246, the Roodepoort branch on 011 668 0030, the Sandton branch on 011 253 3080, the Pretoria branch on 012 471 5700, or the Centurion branch on 012 644 4990. Offices are open Monday to Friday, 7:30am–4:30pm. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified, “Top Rated Law Firm in South Africa”).

Frequently Asked Questions

How long does arbitration take in South Africa?

Commercial arbitration typically runs three to twelve months from referral to final award, depending on complexity, the number of arbitrators, and how actively the parties prepare. Section 23 of the Arbitration Act 42 of 1965 requires the award to be made within four months of the tribunal entering on the reference unless that period is extended. A single-arbitrator matter on a tight timetable can finish in a few months; a three-member tribunal in a multi-issue dispute takes longer. Labour arbitration has its own timeline, with a CCMA award due within fourteen days of the close of proceedings under section 138(7) of the LRA.

How much does arbitration cost in South Africa?

Cost is driven by the number of arbitrators, the length of the hearing, and whether the arbitration is administered or ad hoc. Each party pays its own legal costs and a share of the arbitrator’s remuneration and the venue, with the arbitrator’s fees usually calculated by time spent or the value in dispute. Sections 34 and 35 of the Arbitration Act govern the remuneration of arbitrators and the costs of the arbitration. A realistic budget covers arbitrator fees, venue and transcript costs, legal representation, and expert fees. Burger Huyser Attorneys quotes on a per-file basis after the initial case review.

Is an arbitration award final and binding?

Yes. Under section 28 of the Arbitration Act 42 of 1965 an award is final and binding on the parties to the reference once made. A party wanting to challenge it must apply to a High Court division on the limited grounds in section 33 — arbitrator misconduct, a gross irregularity or the tribunal exceeding its powers, or the award having been improperly obtained — within six weeks after publication of the award. The merits are generally not revisited on review, and there is no general right of appeal as there would be from a court judgment.

Can I do arbitration without an arbitration agreement?

No. Arbitration is consensual and there must be a written agreement to arbitrate before it can begin. That agreement can be a pre-dispute arbitration clause in a contract, which is the most common form, or a post-dispute submission agreement referring an existing dispute to arbitration. Without one there is no jurisdiction for an arbitrator to act and the dispute must be litigated in the ordinary courts. Section 2 of the Act also places certain matters, including matrimonial matters and questions of status, outside arbitration entirely even where the parties agree.

How is an arbitration award enforced?

An award is enforced by having it made an order of court under section 31 of the Arbitration Act 42 of 1965. Any party to the reference applies to a High Court division of competent jurisdiction after due notice to the other party, and once the award is an order of court it carries the force of a judgment and can be enforced by writ of execution against property. For Gauteng-based parties the relevant divisions are the Gauteng Local Division in Johannesburg and the Gauteng Division in Pretoria. A magistrate’s court has no jurisdiction to register or set aside a commercial arbitration award.

What is the difference between arbitration and mediation?

In arbitration an independent arbitrator hears the evidence and argument and issues a binding decision called an award. In mediation an independent mediator helps the parties reach their own settlement but does not decide the dispute, so if mediation fails the parties return to their unresolved dispute unless they have agreed a different next step. Arbitration produces a binding, enforceable outcome; mediation depends entirely on the parties agreeing terms. Both are private, which is why commercial contracts often provide for mediation first and arbitration if mediation does not resolve the matter.

Is arbitration cheaper and faster than going to court?

Generally yes for commercial disputes of moderate complexity, particularly where the parties want a private, technically informed decision and are willing to forgo the right of appeal. Court litigation typically takes longer, often twelve months to several years to reach trial, is more procedurally formal, and generates a public record. Arbitration can be tailored to the dispute and is usually faster and more confidential, though part of the saving is offset by arbitrator and venue costs the parties carry themselves. A three-member tribunal in a high-value dispute can be as expensive as litigation.