A WORD FROM THE BENCH – MARCH 2026
TIME-BARS, SECTION 8, AND THE FINALITY OF ARBITRAL AWARDS
Kidrogen RF (Pty) Ltd v Erasmus and Others 2025 (5) SA 110 (SCA)
This recent Supreme Court of Appeal decision is a cautionary tale for parties (and practitioners) who treat arbitration time-bars as flexible guidelines rather than hard contractual deadlines.
The parties had agreed to arbitrate a pre-existing dispute, with a clause providing that if the claimant failed to pursue the arbitration within 30 days, that failure would be deemed a determination on the merits in favour of the other side. The claimant missed the deadline. Months later, the arbitration proceeded at the instance of the claimant — and the arbitrator upheld the time-bar as agreed, issuing a final award in favour of the respondents.
Undeterred, the claimant approached the High Court for relief under section 8 of the Arbitration Act, seeking an extension of the time-bar. The matter ultimately reached the Supreme Court of Appeal, which delivered a crisp judgment.
Section 8 of the Arbitration Act provides that where an arbitration agreement dealing with future disputes requires a party to take a step to commence arbitration within a fixed period — failing which the claim is barred — a court may extend that period if refusing to do so would cause undue hardship.
The SCA held that on the facts before it section 8 did not empower the court to undo a final time-bar arbitral award. Once the award had been issued, section 28 of the Act kicked in: the award was final and binding, unless set aside on review.
Two further points will interest arbitrators:
- First, section 8 applies to arbitration agreements covering future disputes, not agreements concluded to resolve disputes that already exist;
- Second, even where section 8 is available, the court’s discretion is tightly framed around “undue hardship”, assessed with reference to delay, fault, prejudice, and proportionality — concepts closely analogous to condonation.
The takeaway? Time-bars in arbitration agreements matter. If a party wants relief, it must act timeously in accordance with the agreed timeframes. A reminder that arbitration values certainty, finality, and respect for the bargain the parties struck.
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