THE AUTHORS:
Kirsten Wolmarans, Partner at Webber Wentzel
Cameron Rajoo, Senior Associate at Webber Wentzel
Kagiso Scott, Senior Associate at Webber Wentzel
Brittany Leroni, Senior Associate at Webber Wentzel
This article was featured in Jus Mundi‘s 2025 Arbitration Year in Review, an annual publication analyzing arbitration developments across 40+ jurisdictions on 6 continents. This edition brings together young practitioners and senior experts to capture the year’s most significant legislative reforms, enforcement trends, and institutional innovations.
Arbitration in South Africa, Today
South Africa’s arbitration regime occupies a pivotal position in both African and international commerce. Arbitration has been part of South African dispute resolution for generations, and the market has long benefited from a sophisticated community of specialist arbitrators, experienced counsel, and well-established institutional practices. As cross-border dealings become more intricate and regulatory demands increase, parties (local and foreign) continue to rely on arbitration for its neutrality, efficiency, and commercial acumen. While legislation provides the foundation, it is the depth of expertise within South Africa’s arbitral community, supported by credible institutions and a judiciary familiar with arbitral principles, that has cemented the country’s reputation as a trusted seat. The system is not static; it reflects decades of accumulated practice shaped by commercial evolution and growing regional integration.
Institutional Reforms and Regulatory Developments
Arbitration is widely used in South Africa for the settlement of commercial and labour disputes. Arbitration is also common across various industries and sectors. International arbitrations have become more prevalent since the introduction of the International Arbitration Act, 2017 (“IAA”). The Arbitration Foundation of Southern Africa (“AFSA”), for example, registered 21 new international arbitrations in 2024, up from 18 in 2022 and 18 in 2023.
While the Judicial Matters Amendment Act of 2023 introduced a minor technical correction to the IAA, which took effect on 3 April 2024, there are currently no known plans to update the legislation governing international arbitration in South Africa. Instead, the focus has shifted to institutional capacity-building and technological modernisation. In line with this focus, at the Johannesburg Arbitration Week (“JAW”) in 2024, the AFSA-SADC Alliance Charter was signed, aimed at harmonising and standardising arbitration practices across the region. This development has the potential to significantly reshape arbitration in the Southern African Development Community (“SADC”) states by promoting consistency, cooperation, and trust in regional arbitration mechanisms, although its full impact remains to be seen as implementation progresses.
The most significant development on the horizon is the imminent launch of the AFSA e-filing platform. This digital infrastructure represents a crucial step in modernising South Africa’s arbitration administration and aligning AFSA’s operational capabilities with international best practices. The e-filing platform is anticipated to streamline case management, reduce administrative delays, and enhance accessibility for international parties, thereby reinforcing South Africa’s position as a competitive arbitration seat in the region.
In August 2025, the Association of Arbitrators published Guidelines on the Use of Artificial Intelligence (“AI”) in Arbitrations and Adjudications, dealing with, among other things, the use of AI in proceedings, core principles, risks and challenges, and practical guidelines for tribunals. This proactive approach to emerging technology demonstrates South African arbitral institutions’ commitment to addressing contemporary challenges in dispute resolution and providing guidance to practitioners navigating the intersection of AI and arbitration. It also reflects a broader global movement in dispute resolution, where digital hearings, automated document management, and AI-assisted decision-making are becoming increasingly acceptable, even in complex international arbitrations.
In a further move towards enhancing the attraction of South African seated arbitrations, in October 2025 the Acting Judge President of the Gauteng High Court issued a notice confirming that arbitration-related disputes are eligible to be heard in the Commercial Court, thus providing a faster track for arbitration related court proceedings. The notice emphasises that arbitration matters are deemed to be in the public interest, because the arbitration process is premised on achieving expeditious outcomes. This helps ensure that matters related to arbitration proceedings (such as enforcement of awards or stay applications) are heard by the expedited, more commercially focused arm of the High Court.
Notable Case Law in 2025
The South African Supreme Court of Appeal’s decision in Industrial Development Corporation of South Africa Limited and Another v Kalagadi Manganese (Pty) Ltd, (661/2024) ZASCA 70 firmly established that disputes arising from international arbitration agreements must be resolved through arbitration rather than domestic courts, reinforcing the principle of party autonomy and South Africa’s commitment to honouring international commercial agreements.
The dispute in this matter arose when Kalagadi Manganese attempted to bypass a contractually agreed arbitration clause and bring proceedings before the South African High Court. Clause 40.2.1 of the parties’ Common Terms Agreement stipulated that any dispute arising from or in connection with the agreement must be referred to and finally resolved by arbitration under the ICC (International Chamber of Commerce) Rules in London.
Despite this clear provision, the High Court initially dismissed the preliminary objection and assumed jurisdiction. The Supreme Court of Appeal overturned this decision. The Court emphasised that the IAA governs international arbitration agreements, and the Common Terms Agreement qualified as such because the parties had places of business in different states and the arbitration seat was in London.
Crucially, Article 8(1) of the UNCITRAL (United Nations Commission on International Trade Law) Model Law on International Commercial Arbitration (1985) (which has been adopted in Schedule 1 of the IAA) requires courts to stay proceedings and refer parties to arbitration unless the arbitration agreement is “null and void, inoperative or incapable of being performed.” The Supreme Court of Appeal stated that this heightens the stringent standard that parties must meet to escape arbitration agreements, reflecting the modern approach of respecting party autonomy and minimising judicial interference.
By aligning South Africa with the modern approach to arbitration that respects party autonomy and minimises judicial interference, this judgment enhances South Africa’s attractiveness as a destination for international commerce. It establishes that South African courts will robustly enforce arbitration agreements, ensuring that parties cannot unilaterally abandon agreed dispute resolution mechanisms when litigation appears more convenient. It sends a clear message that arbitration agreements will be enforced according to their terms, providing predictability and confidence to foreign investors and lenders.
Emerging Trends in Arbitration in Southern Africa
Arbitration across Southern Africa is undergoing a period of significant transformation, driven by technological innovation, institutional development, and shifts in regional economic activity. Several developments in recent years point to an evolving landscape that is reshaping how disputes are managed and resolved both domestically and internationally.
As AI becomes more integrated into arbitration practice, concerns around data security, potential bias in predictive algorithms, and the transparency of AI-assisted decision-making are expected to grow. Practitioners and institutions will need to develop clear frameworks to manage these risks while maintaining confidence in the fairness and integrity of the process.
In light of the significant backlogs in South Africa’s Courts, particularly in Pretoria and Johannesburg, there is mounting pressure on litigants and legal practitioners to consider Alternative Dispute Resolution (“ADR”) mechanisms, including arbitration and mediation. The increased reliance on arbitration is not only easing the burden on the courts but also reinforcing arbitration’s role as a practical and efficient alternative to traditional litigation.
Global arbitration trends increasingly incorporate Environmental, Social, and Governance (“ESG”) considerations, and South Africa is no exception. There is growing pressure to adopt “green arbitration” clauses and promote sustainable dispute-resolution processes. This includes measures such as limiting unnecessary travel, encouraging virtual hearings, and reducing the environmental footprint of large-scale disputes.
Third-party funding is gaining traction in South Africa as arbitration becomes more sophisticated and more frequently used for high-value commercial disputes. When AFSA amended its International Arbitration Rules in 2021, it expressly provided for third-party funding arrangements, paving the way for greater acceptance and regulatory clarity in this space. Although the third-party funding market in South Africa remains relatively small, the adoption of these rules and the growing complexity of commercial disputes suggest that interest in and availability of third-party funding will continue to rise. This trend is particularly relevant for parties seeking to manage the financial risk associated with large-scale arbitration.
Several key sectors are expected to fuel continued growth in arbitration across Southern Africa and the broader continent:
- Infrastructure: Ongoing development projects across SADC member countries, often involving cross-border components, are likely to generate substantial construction and infrastructure-related disputes.
- Energy and Natural Resources: With South Africa’s resource-rich landscape and Africa’s broader energy transition, disputes in mining, oil and gas, and renewables are expected to remain prominent.
- Technology and Telecommunications: As digital infrastructure expands across the continent, so too does the potential for technology and telecom-related disputes, particularly in commercial contracting and cross-border service agreements.
Conclusion
South Africa’s prospects in arbitration are underpinned by a long-standing tradition of arbitral practice, highly specialised practitioners and a judiciary that has engaged with arbitration for decades. As African commercial activity expands and investor expectations become more exacting, the country’s established strengths, which are credible institutions, seasoned arbitrators and a mature legal culture, provide a solid basis for continued growth.
To maintain and extend its position, South Africa continues to reinforce institutional quality, ensuring consistent judicial support, and integrating further into regional and international arbitral networks. The increasing sophistication of disputes arising on the continent, together with rising expectations around efficiency, enforceability and governance, present opportunities for South Africa to leverage its depth of expertise.
South Africa’s potential continues to grow, building on sustained collaboration across institutions, practitioners and the courts. With a strong historical foundation and a highly skilled arbitral community, South Africa is well placed not only to remain a reliable seat, but to strengthen its standing as a preferred arbitral hub in the region and beyond.
Discover more insights into the latest developments in arbitration in 2025 from around the world now
ABOUT THE AUTHOR
Kirsten Wolmarans is a partner at Webber Wentzel with an LL.B. from the University of the Witwatersrand (2012) and an LL.M. in International Commercial Arbitration from Stockholm University (2018). She focuses on local and international arbitration and corporate and commercial litigation, acting for clients in the energy, infrastructure, banking, construction and financial-services sectors. A founding member of Young AFSA and a newly appointed AFSA board member, she is committed to strengthening South Africa’s arbitration community. Kirsten and Prianka Soni (partner in the Webber Wentzel dispute resolution department) were recently named Best Team in the 2025 edition of the Delos Dispute Resolution Remote Oral Advocacy Programme (ROAP) for Europe, the Middle East, and Africa – recognising advocacy at the highest level.
Cameron Rajoo is a senior associate in Webber Wentzel‘s dispute resolution department, specialising in complex commercial and corporate litigation and arbitration. He has extensive experience in the financial services, consumer, telecommunications and mining sectors. His practice encompasses complex litigation and arbitrations, involving banking disputes, shareholder conflicts, financial regulations, administrative law, mining, health and safety as well as business crimes and investigation matters. Cameron has an LL.B. degree from the University of Pretoria.
Kagiso Scott is a senior associate in Webber Wentzel‘s dispute resolution department, specialising in corporate and commercial litigation and dispute resolution. She has acted for clients in a variety of sectors and industries such as financial services, mining, construction, public procurement, consumer goods, telecommunications, and media. Her experience includes the resolution of disputes through international arbitrations, mediations, adjudications, and tribunals, as well as proceedings in the High Court, Equality Court, and Magistrates Court. Kagiso has B.A. (Law) and LL.B. (cum laude) degrees from the University of the Witwatersrand.
Brittany Leroni is a senior associate in Webber Wentzel‘s dispute resolution department, specialising in corporate and commercial litigation, with specific experience in class actions, construction disputes; tariff-related disputes and corruption matters. Her practice also extends to alternative dispute resolution methods, including dispute-avoidance procedures; mediations; negotiations and arbitrations. In addition, she has conducted corporate investigations and prepared comprehensive reports in terms of section 34 of the Prevention and Combating of Corrupt Activities Act, 2024 ensuring regulatory compliance and supporting effective governance outcomes. Brittany has a B.A., B.A. (Hons), and an LL.B. degree from the University of the Witwatersrand.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
