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Bluebook 20th ed.

Edward Torgbor, Tracking Down Consent and Dissent in Arbitration Law and Practice [A
Discussion of Daljosaphat Restorations (Pty) Ltd v Kasteelhof CC 2006 SA 91 (C)], 20
Stellenbosch L. Rev. 551 (2009).

ALWD 6th ed.

Edward Torgbor, Tracking Down Consent and Dissent in Arbitration Law and Practice [A
Discussion of Daljosaphat Restorations (Pty) Ltd v Kasteelhof CC 2006 SA 91 (C)], 20
Stellenbosch L. Rev. 551 (2009).

APA 6th ed.

Torgbor, E. (2009). Tracking down consent and dissent in arbitration law and practice
[a discussion of daljosaphat restorations (pty) ltd kasteelhof cc 2006 sa 91 (c)].
Stellenbosch Law Review, 20(3), 551-561.

Chicago 7th ed.

Edward Torgbor, "Tracking Down Consent and Dissent in Arbitration Law and Practice [A
Discussion of Daljosaphat Restorations (Pty) Ltd v Kasteelhof CC 2006 SA 91 (C)],"
Stellenbosch Law Review 20, no. 3 (2009): 551-561

McGill Guide 9th ed.

Edward Torgbor, "Tracking Down Consent and Dissent in Arbitration Law and Practice [A
Discussion of Daljosaphat Restorations (Pty) Ltd v Kasteelhof CC 2006 SA 91 (C)]"
(2009) 20:3 Stellenbosch L Rev 551.

MLA 8th ed.

Torgbor, Edward. "Tracking Down Consent and Dissent in Arbitration Law and Practice
[A Discussion of Daljosaphat Restorations (Pty) Ltd v Kasteelhof CC 2006 SA 91 (C)]."
Stellenbosch Law Review, vol. 20, no. 3, 2009, p. 551-561. HeinOnline.

OSCOLA 4th ed.

Edward Torgbor, 'Tracking Down Consent and Dissent in Arbitration Law and Practice [A
Discussion of Daljosaphat Restorations (Pty) Ltd v Kasteelhof CC 2006 SA 91 (C)]'
(2009) 20 Stellenbosch L Rev 551

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TRACKING DOWN CONSENT AND DISSENT
IN ARBITRATION LAW AND PRACTICE
[A DISCUSSION OF DALJOSAPHAT
RESTORATIONS (PTY) LTD V KASTEELHOF CC
2006 6 SA 91 (C)]
Hon Justice Edward Torgbor FCI Arb
LLB LLM Dip Int Law (Cantab)
Extraordinary Professor of Law, University of Stellenbosch

1 Introduction
The term "consent" as used in this commentary means to agree or assent.
"Dissent" means to disagree or differ.' "Dissensus", in context, refers to a
situation where there is no meeting of the minds between contracting parties.
Because arbitration is deemed consensual, an arbitral party (usually the
respondent) who subsequently denies his consent to arbitrate finds himself
in a difficult position. It is not usual in common law juridical traditions
for a party to prove the negative proposition that he did not consent to the
arbitration. When, however, a claimant who carries the burden of proving the
respondent's consent produces the written and signed arbitration agreement,
the respondent then has no alternative but to rebut or disprove genuine consent.
Indeed, some national arbitration rules place upon each arbitral party the
burden of proving the facts relied on to support the claim or defence. 3 The
respondent's problem is exacerbated by two other factors. First, the arbitrator
who has assumed jurisdiction in the dispute might be inclined or even keen
to embark upon the arbitration despite the denial of consent. Secondly,
national arbitration laws such as those based on the UNCITRAL Model Law
on International Commercial Arbitration (1985) 4 ("the UNCITRAL Model
Law") allow the arbitral tribunal to rule on its own jurisdiction, including any
objections to the existence or validity of the arbitration agreement from which
the arbitral consent is usually implied. National arbitration statutes like those

Former Judge of the High Court of Kenya, Chartered Arbitrator and Member of the London Court of
International Arbitration (LCIA).
Kirkpatrick, Davidson, Seaton & Simpson (eds) Chambers Concise 20th Century Dictionary(1985).
Dissensus ordinarily means lack of agreement; the opposite of consensus ad idem in contract law. See
Hiemstra & Gonin (eds) TrilingualLegal Dictionary3 ed (1992).
3 See, eg, Art 24(1) of the Nigerian Arbitration Rules under Sch 1 of the Arbitration and Conciliation Act
1988.
4 Art 16. UNCITRAL is an acronym for the United Nations Commission on International Trade Law which
undertook the preparatory work on the Model Law that came into force in 1985. The Model Law, as the
name implies, is a reference model for arbitration law. It is universally accepted as setting international
standards for both domestic and international arbitration law. South Africa has not yet adopted or enacted
the provisions of the Model Law but its importance is reflected in its inclusion in arbitration law courses
and seminars. See also the SA Law (Reform) Commission Arbitration: An InternationalArbitrationAct
for South Africa Project 94 (1998).
 STELL LR 2009 3

of Kenya, Nigeria and Zimbabwe that are based on the Model Law contain
similar provisions.5 This provision compounds the problem for the denying
party, because it is the very arbitral tribunal whose jurisdiction is challenged
by the dissent that has to decide the issue of disputed consent and, in effect,
the challenge to its arbitral jurisdiction.
An additional source of discomfort for the denying party is that the tribunal
may rule on its jurisdictional competence either as a preliminary question
or in an award on the merits.6 Although a positive ruling that the tribunal
has jurisdiction may be reviewed by the court (usually a High Court) there is
no further recourse of appeal to an appellate court and, more grievously, the
arbitral tribunal may continue the arbitral proceedings and make an award.7
While the party who desires the arbitration is assisted by this provision, the
dissenting party has a long way to go to rebut consent with the time and
expense occasioned by the lengthy process of investigation.
Several commentaries have been written on the illusiveness of consent such
as inferred from pre-existing arbitration clauses in standard form contracts,
multi-parties and multi-contracts arbitrations wherein the problem of tracking
consent and dissent is more acute.8 In what follows, an attempt is made to
clarify the problem of consent and dissent in arbitration practice and the
limitation on the right of appeal from an arbitral award in light of the South
African decision in DaljosaphatRestorations (Pty) Ltd v Kasteelhof CC 9
("Dajosaphat").

2 The facts
The applicant carried out extensive building works and renovations to the
respondent's hotel and was paid R2, 6 million. A dispute arose concerning
further payments and the applicant cancelled the building contract for non-
payment of architect's certificates. When the respondent in turn denied the
contract the applicant asserted a builder's lien over the hotel and refused to
give up possession. Thereafter the respondent applied to court to eject the
applicant. The application was settled by the parties and their settlement
agreement was made an order of court. The court order referred the disputed
amount to arbitration (per clause 3 of the agreement), and for the arbitration to
be conducted in terms of an arbitration agreement to be concluded thereafter
by the parties and the process and award thereto to be subject to a right of
appeal to the court (per clause 4). The parties subsequently submitted their
dispute to the arbitration. An award was made in favour of the applicant
who then applied for the arbitral award to be made an order of court. The
respondent opposed the application on the ground that the arbitral award was,

5 S 17 (Kenyan Arbitration Act 1995); s 12 (Nigerian Arbitration and Conciliation Act 1988) and art 16
(Zimbabwean Arbitration Act 1996).
6 Art 16(3) of the UNCITRAL Model Law.
7 Art 16(3).
8 Van Houtte "Consent to Arbitration through Agreement to Printed Contracts: The Continental
Experience" 2000 (16) Arb Int'l 14; Hanotiou: "Problems Raised by Complex Arbitrations Involving
Multiple Contracts - Parties - Issues" 2000 18(3) JlntArb 268.
2006 6 SA 91 (C).
CONSENT AND DISSENT IN ARBITRATION LAW

by the parties' agreement, subject to an appeal that had been filed but not yet
determined by the court. In a counter-application the respondent also sought
the initial settlement agreement that was made an order of court to be declared
void and for the subsequent arbitral proceedings and the award to be declared
nullities. The applicant opposed the counter-application.

3 The decision
Four main issues were considered and decided by the court. On the first
issue, whether the filing of a notice of appeal constituted a bar to the request
to convert the arbitral award to a court order,'0 the court found that it had no
jurisdiction to hear an appeal against the arbitral award; and the court cited
precedents to show that such a right cannot be conferred by agreement of
parties." The court found further that the parties were wrong in thinking that
an Appellate Court would entertain an appeal against the arbitrator's award as12
there is no general right of appeal from an arbitral award in South Africa;
and held therefore that the filing of a notice of appeal by the respondent could
not be a bar to the order sought by the applicant to turn the award into a court
order.
On the second issue, whether a High Court can, by declaring a settlement
agreement with an appeal provision an order of court as done in this case,
thereby confer upon itself jurisdiction to hear an appeal from an arbitration
award, 13 the court found that the appeal provision in clause 4 of the settlement
agreement was of no force and effect and incapable of implementation as the
court lacked jurisdiction to hear an appeal against the arbitration award.
On the third issue, whether the nullity or invalidity of the appeal provision
rendered the settlement agreement itself invalid,14 the court found that
the appeal provision was clearly severable from the rest of the settlement
agreement, it being an incidental and not a material term of the agreement.
Therefore its severance did not affect the validity of the settlement agreement
itself.
The fourth issue was whether the settlement agreement could nonetheless
be set aside on the basis of dissensus (ie the lack of consent or agreement to
arbitrate) and 15whether the proceedings before the arbitrator and the award
were nullities.
There are two aspects to the fourth issue. On the first aspect the court found
dissensus to be present in that there was no common intention to appeal the
arbitral award when the settlement agreement was negotiated; that there was
a misrepresentation as to the applicant's intention to be bound by the appeal

0 Para 29.
t Para 32, where the court referred to Goldschmidt v Folb 1974 1 SA 576 (C) and Blaas v Athanassiou 1991
1 SA 723 (W).
12 See para 33 and the reference to Butler & Finsen Arbitration in South Africa (1993) 271 and McKenzie

The Law ofBuilding and Engineering Contracts (1994) 5 ed 184 ("[a] provision for an appeal to a court of
law in an arbitration agreement is void").
13 Dajosaphat Restorations (Ply) Ltd v Kasteelhof CC 2006 6 SA 91 (C) para 35.
14 Para 37.
IS Para 40.
 STELL LR 2009 3

provision; and that therefore the respondent was misled into believing that
the applicant had agreed to an appeal on the merits.16 Despite this finding, on
the second aspect whether the respondent was entitled to an order declaring
null and void the settlement agreement, the arbitral proceedings and the
award, the court declined to make such an order because the respondent's
subsequent conduct in performing the settlement agreement by participating
in the arbitration despite the existence of dissensus operated as a bar and
deprived the respondent of such relief.1 7 As a result, the respondent's counter-
application was dismissed.

4 Analysis and comment

The DaIjosaphat decision illustrates the distinction between the arbitral
parties' consent to go to arbitration through their conscious choice of arbitration
as the preferred method for resolving their dispute, and the independence of
the arbitration agreement that contains not only the parties' consent but also
the terms settled by the parties for conducting the arbitration. But the decision
goes further than that by demonstrating also the limitations on the right of
appeal from an arbitral award, the application of the principles for determining
the validity or otherwise of the arbitration agreement, its severability from the
underlying contract and the doctrine of election that compels a contracting
party to choose between the option of performing the contract or resiling from
it.
The focus of this commentary, however, is on the impact of consent and
dissent on arbitration practice in light of the court decision.

5 Consent and the arbitration agreement

Consent can be disputed in two fundamental ways, The first is where a
party denies his consent to arbitrate by saying he never contemplated and
did not consciously choose arbitration at all as a method or procedure for
resolving any differences between the contracting parties. The second is when
the parties' contract is produced bearing their signatures and the respondent
admits the contract but argues that the formulation of the arbitration clause or
agreement did not express his consent to arbitrate the particular dispute that
has arisen. The distinction between the two situations must not be blurred
because the principles for the discovery of genuine consent and the direction
of inquiry in each case would differ, as would be the evidence to prove or
disprove the existence of contractual consent for the submission to arbitration.
In the first instance, the party relying on the mutual consent to arbitrate
has to look for evidence of it in whatever form acceptable to the applicable
arbitration law (the lex loci arbitri).In the second instance, it may suffice to
prove the validity and scope of the arbitration agreement to demonstrate that
the agreement covers the dispute in question.

16 Para 46.
17 Para 47.
CONSENT AND DISSENT IN ARBITRATION LAW

The UNCITRAL Model Law does not specifically provide for the
requirement of consent in arbitral proceedings. But the distinction between
the consent to arbitrate and the arbitration agreement itself is reflected in the
underlying purpose of the 2006 amendment to Article 7. The revised wording
of Article 7(3) provides:
"An arbitration agreement is in writing if its contents is recorded in any form, whether or not the
arbitration agreement or contract has been concluded orally, by conduct, or by other means."

The purpose ascribed to this amendment is not to provide certainty for the
parties' consent to arbitrate, but certainty for the contents of the arbitration
agreement. Attempts to formalise the manifestation of genuine consent
to arbitrate is exemplified by the Belgian Code Judiciaire (1967)18 and the
imposition of additional formalities by some national arbitration statutes for
consumer arbitration.' 9 It is submitted that the purpose of additional statutory
requirements for consumer arbitration agreements is to establish the existence
of the requisite arbitral consent on the part of the consumer.
The distinction between the manifestation of consent and the arbitration
agreement was brought into focus in the decision on the fourth issue in the
DaIjosaphatcase. It will be recalled that the settlement agreement which was
made an order of court by the parties' agreement contained the referral order
of the parties' dispute to arbitration (clause 3) but the arbitration itself was
to be conducted in terms of an arbitration agreement that did not then exist
(clause 4). The significant point is that at the stage of the recording of the
settlement agreement as a court order, the parties' choice of arbitration as the
agreed method ofresolving their dispute was manifest. The point of departure,
however, was that if that settlement agreement was tainted by dissensus, then
it was necessary to determine the impact of the dissensus and whether it was
confined to the settlement agreement or extended to the subsequent arbitration
agreement concluded by the parties.

6 The impact of dissensus

To appreciate the decision of the court more fully on dissensus, it is
necessary to elaborate on the grounds of the respondent's objection to the
conversion of the arbitral award into a court order.
The grounds of objection, in summary, were that:
(i) There was dissensus pertaining to the appeal provision and so conse-
quently no agreement at all was concluded.20

18 Art 1677 provides: "[e]very arbitration agreement shall be the subject of a written document, signed by the
parties, or any other document which binds the parties and in which they have manifested their consent to
have recourse to arbitration".
19 Eg art 4(2) of the Zimbabwean Arbitration Act 1996, which is based on the UNCITRAL Model Law,
excludes consumer contracts from arbitration under the Act "unless the consumer has by separate
agreement agreed thereto." Germany and New Zealand, which have also adopted the Model Law for
both international and domestic arbitration, have similarly imposed additional formalities for consumer
arbitration agreements as a condition for their enforceability.
20 DaljosaphatRestorations (Ply) Lid v Kasteelhof CC 2006 6 SA 91 (C) paras 35.
 STELL LR 2009 3

(ii) If the court found the appeal provision to be invalid the settlement
agreement must likewise be found to be invalid.2'
(iii) The appeal provision was a material term of the settlement agreement
without which clause 4 of that agreement would not have come into
effect.22
(iv) Therefore the appeal provision could not be 23 severed and the whole
agreement must therefore be declared invalid.
It is to be observed that the several references in the above grounds to
an agreement related to the settlement agreement but not to the arbitration
agreement from which the arbitration process and the award emanated and
which the applicant sought to enforce.
Although the respondent's approach failed to differentiate between the
settlement and arbitration agreements, the justification for its approach seems
to be that once the former agreement was invalidated, it could no longer
provide a legal or contractual foundation for the latter agreement, which must
then also fail. In other words the respondent, without distinguishing between
the two agreements, had sought to extend the existence of dissensus to both.
To disentangle and dismantle this ingenious argument the court prudently
identified and differentiated the two agreements, making it clear that by
the date of the commencement and conduct of the arbitral proceedings, the
arbitration agreement, that did not exist at the recording of the settlement
agreement, had come into existence and the terms were concluded at two
meetings between the parties (held on 9 June 2005 and 28 October 2005).
Therefore, and in the words of the court:
"It is clear that whatever dissensus existed when the settlement agreement was being concluded,
at that stage when the provisions of the arbitration agreement were being concluded, there was no
dissensus and, certainly, by the time the arbitration agreement was to be put into operation, each party
24
knew precisely what the other understood by the appeal provision".

and further that

"[n]otwithstanding the differences in opinion about an appeal the respondent chose to go ahead with
the arbitration. It could, at that stage have taken steps to prevent the arbitration but elected not to do
25
So".

7 Principles and practice

The principles of dissensus by which the court was guided were expounded
in judicial decisions going back to Smith v Hughes26 wherein Blackburn J
stated:
"If, whatever a man's real intention may be, he so conducts himself that a reasonable man would
believe that he was assenting to the terms proposed by the other party, and that other party upon the

21 Para 37.
22 Para 37.
23 Para 37.
24 DajosaphatRestorations (Pty) Ltd v KasteelhofCC 2006 6 SA 91 (C) para 48.
25 Para 49.
26 (1871) LR 6 QB 597.
CONSENT AND DISSENT IN ARBITRATION LAW

belief enters into the contract with him, the man thus conducting
27 himself would be equally bound as
if he had intended to agree to the other party's terms.,

This statement of principle has been restated with approval in other South
African decisions, most notably
28
by Brand JA in ConstantiaInsurance Co Ltd
v Compusource (Pty) Ltd.
"In my view, therefore, the decisive question in a case like the present is this: did the party whose
actual intention did not conform to the common intention expressed lead the other party, as a
reasonable man, to believe that his declared intention represented his actual intention? ... To answer
this question, a threefold enquiry is usually necessary, namely, firstly, was there a misrepresentation as
to one party's intention; secondly, who made that misrepresentation; and thirdly, was the other party
misled thereby? ... The last question postulates two possibilities: was he actually misled and would a
29
reasonable man have been misled?

It is on the basis of these principles that the court in the instant case found
dissensus to have existed at the date of the settlement agreement but which
was no longer present when the arbitration agreement was concluded, the
arbitration was conducted, and the award was made.
In arbitration practice, a guiding principle for the discovery of consent ' 30
similar to that stated above is the "Principle of Interpretation in Good Faith
by which a party's true intention prevails over his declared intention where the
two are not the same. In effect, this is a less technical way of saying that one
must look for the parties' common intention and not be limited to the literal
meaning of the words used.
In Daljosaphat,the step-by-step peeling back of the respondent's objections
- first by isolating and differentiating the two agreements containing the
parties' consent to arbitrate, followed by the discovery of dissensus in the
settlement agreement but not in the subsequent arbitration agreement, and
finally upholding the existence and validity of the arbitration agreement,
the arbitral process and the resulting award - elucidates and illustrates the
distinction between "the consent to arbitrate" and "the arbitration agreement"
as well as the impact of consent or dissent on the validity of the arbitration
agreement, the arbitral process and the final award.

8 Recourse to appeal - an incidental or material provision

Other findings by the court (on the first and second issues) such as that the
filing of a Notice of Appeal was no bar to the confirmation of an arbitral award
by the court and that the court cannot by the parties' agreement confer upon
itself a jurisdiction it does not have in law, are unassailable in the absence of a
general right of appeal to the court.
However, the decision on the severability of the appeal provision for being
an incidental rather than a material provision is unconvincing, 31 and is not
free from controversy. The authority cited in support of the decision - Blaas

27 607. Common lawyers will recognise the kinship with the principle of misrepresentation.
2 2005 4 SA 345 (SCA).
'9 Para 17, citing Harms AJA in Sonap Petroleum SA (Pty)Ltd (formerly known as Sonarep (SA) (Pty) (Ltd)
vPappadogianis1992 3 SA 234 (A) 2391-240B.
30 Gaillard & Savage InternationalCommercialArbitration(1999) 257.
31 DaljosaphatRestorations (Ply) Ltd v KasteelhofCC 2006 6 SA 91 (C) paras 37-39.
 STELL LR 2009 3

v Athanassiou - is also, with respect, unconvincing. The respondent's

submission that the appeal provision was a material term of the settlement
agreement without which clause 4 would not have come into effect is a
forceful argument, because the respondent submitted to the arbitration in the
belief, albeit mistaken, that a right of appeal from the award had been agreed
upon. Further, the appeal provision could be denied legal force and effect
on the ground that a mistake of law was not a legally sustainable argument.
This would be preferable to the view that the provision was severable for
being an incidental rather than a material term of the settlement agreement,
a view unsupported by the evidence that the parties themselves agreed to go
to arbitration "subject thereto that the arbitration process and award will not
be final and the parties having the right of appeal to this court" (per clause 4
of the settlement agreement).33 Because arbitration is consensual, and in line
with the principle of party autonomy that runs through modern arbitration
law, it is submitted that materiality ought to be determined with regard to
what the arbitral parties deemed or contemplated to be the material terms of
their contract rather than to doctrinal abstractions or worse still, the subjective
preference of an adjudicator or judge.
Therefore, if the appeal provision was illegal for the lack of a general right
to appeal from an arbitral award then it would have been unenforceable for
illegality and severable from the contract on those grounds, but not because a
provision that was so fundamental to the parties' agreement to arbitrate their
dispute was incidental rather than material. Moreover, what determined the
materiality of a contractual term was not considered by the court, yet it could
not have been for nothing that the parties settled on such a fundamental term.
Having consciously and knowingly inserted the appeal provision in their
settlement agreement and settlement order, the parties must have deemed it a
material term of their contract and so deserving of due consideration by the
court and dispensable only on unassailable principles and criteria, a standard
the court failed to achieve in this case.
Proponents of arbitration will no doubt applaud a judicial decision that
upholds an arbitral award. The English Chartered Institute of Arbitrators, for
example, did not conceal its pleasure in the confirmation by the English Court
of Appeal decision in Fiona Trust v Privalovs34 that an arbitral tribunal
has jurisdiction to hear a case despite allegations that the principal contracts
had been procured by bribery. The president of the Institute applauded this
decision because it reflected the principle inherent in UNCITRAL Model
Law-based arbitration statutes, as restated by the English House of Lords in
35
Lesotho HighlandsDevelopment Authority v Impregilo SpA , that36the courts
in arbitration cases only when necessary.
should become involved

32 1991 1 SA 723 (W).

33 DaljosaphatRestorations (Pty) Ltd v KasteelhofCC 2006 6 SA 91 (C) para 5.
[2007] EWCA Civ 20.
[[2005] UKHL 43.
36 Chartered Institute ofArbitration The Resolver (May 2007).
CONSENT AND DISSENT IN ARBITRATION LAW

9 Achieving finality in arbitration - a common law and statutory

conundrum
Apart from the particular principles of law and practice applied in the
DaIjosaphatcase, there are others that lend support to the ultimate decision of
the court such as the need to give finality to a dispute. Litigation and arbitration
practitioners are familiar with the principle that demands an end to disputation.
The "Principle of Effective Interpretation '37 also comes to mind. It is well
known to continental practitioners and applicable where an arbitration clause
can be interpreted in two ways and the preferred interpretation is that which
enables the clause to be effective rather than ineffective or useless.
But principles aside, there is a submission by the respondent in the
Daljosaphat decision on a point of law which merits further comment.
Respondent's counsel stated in her affidavit that:
"'As Superior Courts can do anything that the law does not forbid (see Herbstein and Van Winsen
The Civil Practice of the Supreme Court of South Africa 4 ed at 38) there should be no doubt that the
High Court would have jurisdiction to hear and adjudicate such an appeal if the parties in a High Court
matter agree to refer a portion of their dispute to arbitration; and want to seize the High Court with
jurisdiction to consider an appeal against an award by the arbitrator in such arbitration; and have their
38
agreement reflected in an order of the High Court (and thus accepted by the Court)'-.

The authorities quoted by the instant court in response to respondent

counsel's submission included a statement by Hiemstra J in Goldschmidt v
Folb3 9:
"The appellant labours under an erroneous reading of s 28 [of the South African Arbitration Act 42
of 1965]. The section is unfortunately phrased and can prima facie raise the impression that a right of
appeal can be created by agreement. The appeal there can, however, within the context only mean an
appeal to an umpire or another arbitration tribunal. The common law in arbitration has always been
that there is no appeal. Voet says so at 4.8.25 ..... 41

This writer appreciates the proffered pronouncements and statements which

support the court's finding in the instant case that there is no general right
of appeal from an arbitral award in South Africa. The disquieting thought
however is that section 28 of the South Africa Arbitration Act 42 of 1965 ("the
Arbitration Act") provides:
"Unless the arbitrationagreementprovides otherwise,an award shall, subject to the provisions of this
Act, be final and not subject to appeal and
41 each party to the reference shall abide by and comply with
the award in accordance with its terms".

The italicised phrase indeed suggests that parties can agree to appeal an
arbitral award and the judicial responses that the section is "unfortunately
phrased" or "Voet says so" hardly atone for the mischief created by the
clear words of a statute still in use in South Africa. Moreover, the judicial
interpretation that the appeal can only mean an appeal to an umpire or another

37 Gaillard & Savage InternationalCommercialArbitration (1999) 258.

38 DaljosaphatRestorations(Pty)Ltd v KasteelhofCC 2006 6 SA 91 (C) para 16.
'9 1974 1 SA 576 (C).
40 577A-D, cited in DalIjosaphatRestorations(Pty) Ltd v KasteelhofCC 2006 6 SA 91 (C) para 32.
4' Emphasis added.
 STELL LR 2009 3

arbitration tribunal is neither apparent nor supported by the clear provision of

the statute.
It is submitted that a statutory provision that confuses rather than clarifies the
law ought to be amended. It is apparent from this judgment and the clarifying
authorities cited by the court that section 28 of the Arbitration Act has continued
to confuse and mislead practitioners. It is not usual in the common law system
for a common law principle to override a statutory provision on the same point
or matter and therefore a judicial endorsement or preference for a common
law principle at variance with the clear words of section 28 ("because Voet
says so") would smack of tendentious subjectivity. It is not suggested that a
badly or "unfortunately" worded statutory provision should be preferred to a
common law statement of the law on the same issue, but rather that the lack of
clarity should and can be cleared up by statutory amendment in preference to
subjective interpretation or judicial pronouncement.
It has been said that:
"[T]he fact that the South African Arbitration Act of 1965 has not yet been assigned to the museum
of repealed statutes means that South African courts develop the law mainly with reference to old
South African precedents often decided at a time when there was much less clear understanding of
the underlying principles ofarbitration law, than is the case today. Reference to modem jurisprudence
in other jurisdictions is becoming increasingly inappropriate, because those decisions are based on
differently42 worded arbitration legislation, which is underpinned, at least to some extent, by different
policies.

If from such commentary and this writer's own observations a need for
repeal, amendment, improvement or modernisation of arbitration law in South
Africa is recognised and accepted, then clearly there is work to be done by all
concerned in undertaking that task 3.

10 Conclusion
The consensual basis of arbitration is well entrenched in arbitration culture,
such that without consent of the parties there can be no arbitration, and an
award obtained without party consent is likely to be challenged and rendered
unenforceable. It is clear however that what passes as consent may be illusory
and not genuine. In cases of disputed consent, the investigation by the tribunal
or court may well end up with what may be termed "legal consent", ie consent
that is acceptable to the applicable law to sustain the arbitral process. In doing
so various principles, some of which are identified in this commentary, are
called in aid by the investigator. In the DaIjosaphatcase, the approach adopted
by the court is supportive of arbitration. It does this by first establishing the
existence of two different agreements, then proceeding to acknowledge the
presence of dissensus in the settlement agreement but not in the arbitration
agreement and finally, by concluding that an arbitration agreement, from

42 Butler Development and Practice ofArbitrationandADR in South Africa (conference paper presented in
Johannesburg on 14 June 2006).
4' The South African Law Reform Commission identified the South African Arbitration Act as an example
of legislation that was widely perceived to be totally inadequate for international arbitration (see
Arbitration:An InternationalArbitrationAct for SA 23).
CONSENT AND DISSENT IN ARBITRATION LAW

which the parties consent to arbitrate their dispute can be inferred, clearly
existed despite the dissensus in the settlement agreement.
There must be an end to a dispute. Therefore, both parties having submitted
to the arbitration, to the jurisdiction of the tribunal, and participating in the
process, must be bound by the award.44

SUMMARY
It is common perception that arbitration is consensual. This is because parties normally engage
in arbitration by their mutual consent and agreement. However, controversy often arises when a
dispute actually occurs, and one party seeks to enforce the arbitration agreement but the other party
denies, or dissents from, the arbitration agreement. Disputed issues of consent and dissent require
early investigation and determination. Otherwise they may transform to other challenges, such as the
appointment of the arbitrators and the arbitral jurisdiction, that may consequently put the eventual
arbitral award at the risk of being set aside by the court. Two agreements emerged in the Daliosaphat
case: a settlement agreement and an arbitration agreement. The court found the former to be tainted
by dissent (dissensus)but not the latter, from which the disputed arbitral award emanated. The route to
these findings illustrates the elusiveness of consent in arbitration practice, and the principles applied
by the court in the investigation and determination of such issues towards the final disposal of the
dispute on merits.

44 Arbitration legislation and judicial decisions differ from jurisdiction tojurisdiction on the finality of
awards. The Kenyan Court of Appeal in Kenya Shell Limited v Kobil Petroleum Limited Civ Appl NO
NAI 57 (2006) upheld a right of appeal from the High Court to the Appellate Court inan arbitral matter
because the Kenyan Arbitration Act 1995 does not specifically outlaw the right. However, see Dundas
"The Finality of Arbitration Awards and the Jurisdiction of the Court of Appeal" 2007 (73) Arbitration
127 in which the point is stressed that where the English Arbitration Act 1996 provides, as it does in
eighteen places, that the decision of a first instance judge shall be final, then "final" means "FINAL".