The limits of arbitral review: why broad legal tests cannot rescue a weak case

On 15 May, the High Court in Pretoria confirmed a point that matters for any person using arbitration: a review is not a second bite at the merits.

In Profood Africa (Pty) Limited v Wijnbeek and Anor, the claimant tried to set aside an interim arbitration award under section 33 of the Arbitration Act. The dispute focused on a disclaimer clause in a clearing and forwarding agreement (a logistics agreement on how goods would be moved). The arbitrator was asked to decide two issues: whether the clause was unenforceable (pro non scripto); and whether it should have been specifically pointed out to the claimant.

After an unsuccessful arbitration, the claimant argued that the arbitrator committed a “gross irregularity” with regards to the arbitral proceedings. It relied on well-known authorities and said that the arbitrator had either misconceived the enquiry or failed to apply the correct tests.

In the High Court, that argument failed for a simple reason, which is that the complaint was really about the outcome of the arbitration, not the process. Section 33 draws a hard line.

A court can intervene only if something went wrong in the conduct of the arbitration which in turn prevented a fair hearing. It is not enough to show that the arbitrator got the law wrong or reached the wrong answer. Here, the claimant’s own case showed that the arbitrator had dealt with the issues he was asked to decide. The arbitrator interpreted the clause, considered the evidence, and concluded that the clause was not unusual and did not need to be specifically drawn to the claimant’s attention. That necessarily involved engaging with the very principles the claimant relied on.

At best, what the claimant showed was that the arbitrator may have misapplied the legal principals. That does not provide the basis for a review. If an arbitrator understands the question and answers it (even incorrectly), that is the end of the matter. 

The Profood Africa case is a useful reminder on disclaimer clauses. The court noted that the claimant’s representative had time to consider the agreement, was not induced into signing it, and was under no pressure. Those facts made it difficult to argue that the clause required special notice or that it fell outside the usual signer beware position.

An insurance and reinsurance lawyer at Deneys in South Africa, Jakop focuses on complex insurance disputes and advisory work across coverage, liability and reinsurance lines, including aviation‑related disputes. Matthew is a candidate attorney at Deneys and is concurrently completing an LLM in Alternative Dispute Resolution.