THE AUTHORS:
Jonathan Ripley-Evans, Partner at Herbert Smith Freehills Kramer
Fiorella Noriega Del Valle, Director at Herbert Smith Freehills Kramer
Veronica Connolly, Senior Associate at Herbert Smith Freehills Kramer
Kyle Melville, Associate at Herbert Smith Freehills Kramer
South Africa‘s ambition to establish itself as a premier seat for international commercial arbitration rests on the proposition that parties can bring their disputes here confident that courts will honour the bargain struck when parties choose arbitration, and that awards will be enforceable without undue judicial interference.
The Supreme Court of Appeal’s (“SCA”) judgment in Kingdom of Lesotho v Frazer Solar GmbH and Others [2026] ZASCA 75, delivered on 22 May 2026, is (to date) the most significant judicial application of South Africa’s International Arbitration Act 15 of 2017 (the “IAA”), which incorporates the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) into South African law.
The majority decision confirmed four propositions.
- First, the interpretation of the IAA should be consistent and uniform with the interpretation in other Model Law jurisdictions.
- Second, the time limit to bring a set-aside application, provided for in article 34 of the Model Law, is peremptory: courts have no general discretion to extend it (the “Set Aside Time Bar”).
- Third, the Set Aside Time Bar constitutes a reasonable limitation on the Constitutional right of access to courts.
- Fourth, South Africa’s inclusion of article 34(5)(b) constitutes a deliberate adaptation of the Model Law, extending the Set Aside Time Bar where an applicant did not know that the award was tainted by fraud or corruption until after its expiry. This is a limited exception, not a general discretion. The majority did not find the exception satisfied because the applicant failed to seek to set aside the award (or the arbitration agreement) on the basis of corruption or fraud — a practical reminder to ensure that all potential avenues under the IAA are invoked.
The judgment brings welcome clarity to the interpretation and application of the IAA and its interaction with the Constitution, reflecting a purposeful alignment of South African judicial practice with established pro-arbitration jurisdictions worldwide.
The Procedural History
The case arose from a supply agreement concluded between the Kingdom of Lesotho (“KOL”) and the German company Frazer Solar GmbH (“FSG”), for energy efficiency products in Lesotho. A Johannesburg-seated tribunal issued an award of approximately €50 million in favour of FSG in 2020.
FSG applied to the High Court to make the award an order of court, which was granted (the “Enforcement Order”). The KOL did not participate in either the arbitration or the enforcement proceedings.
The KOL subsequently launched a two-pronged challenge premised on the invalidity of the supply agreement, and the arbitration agreement it contained. First, it sought rescission of the Enforcement Order on the basis of KOL’s non-consent to arbitration or the supply agreement (the “Enforcement Application”). Second, it applied to set aside the arbitral award, contending that the supply agreement and the arbitration agreement had been invalidly concluded (the “Set-Aside Application”).
The Set Aside Application was commenced in October 2021, almost two years after the award was issued in January 2020, and materially beyond the three month Set Aside Time Bar. The KOL attributed its failure to participate in the arbitration or the enforcement proceedings to alleged corruption and fraud, claiming that the relevant proceedings had been actively concealed from it. Both applications were dismissed by the High Court, and the KOL appealed to the SCA.
In determining the Enforcement Application, the majority accepted that the KOL had provided a reasonable explanation for its previous failures to participate and had a bona fide defence with prima facie prospects of success, that the arbitration agreement may have been concluded in breach of applicable frameworks by a Minister lacking the requisite authority. Accordingly, the Enforcement Application was upheld, and the Enforcement Order rescinded.
The Set-Aside Application, however, was dismissed. The majority held that when interpreted in a manner consistent with its international origin and the need for uniformity, the three-month time period prescribed by article 34(3) of the Model Law is peremptory, constitutionally valid, and not open to extension save in the limited circumstances provided for by article 34(5)(b), which apply in certain instances of corruption or fraud.
Model Law Uniformity as an Interpretative Obligation
It was undisputed that the KOL’s Set-Aside Application was brought after expiry of the Set Aside Time Bar. However, the KOL argued that the Court retained a discretion to condone late compliance and that the imposition of an absolute time bar conflicted with the constitutional right of access to courts.
These questions raised issues of fundamental importance to the IAA and, by extension, South Africa’s standing and reputation as a seat for international arbitration. This prompted the intervention of the Arbitration Foundation of Southern Africa (“AFSA”) as amicus curiae.
AFSA submitted that the interpretative methodology should situate the Set Aside Time Bar within its broader legislative and international context. This approach is supported by section 8 of the IAA, which expressly permits reference to UNCITRAL materials as aids to interpretation, and article 2A, which requires regard to the Model Law’s international origin and to the need to promote uniformity in its application. Moreover, section 233 of South Africa’s Constitution also directs courts to prefer interpretations consistent with international law. Together, these provisions establish a constitutional and legislative imperative to construe the IAA within the global framework from which it derives.
The majority found that there was no general discretion to extend or vary the Set Aside Time Bar, and to do so would undermine article 5, which restricts court intervention in arbitral proceedings, and would contradict the internationally accepted construction of the provision in other Model Law jurisdictions like Singapore, New Zealand and Kenya, which treat the time limit as peremptory. To recognise a general power of condonation would position South Africa as an outlier among comparable international arbitration regimes, undermining confidence in the finality of awards once the Set Aside Time Bar has expired. The majority held that the provision:
“… promotes uniformity and predictability, key attributes that enhance the Republic’s attractiveness as a seat for international arbitration. The risks associated with permitting courts a discretionary power to condone non-compliance far outweigh any limitation imposed.”
In agreement with FSG and AFSA’s submissions, the Court also placed significant weight on the legislative history of the IAA, as the Set Aside Time Bar was expressly included “by legislative design”, as the South African Law Reform Commission had deliberately rejected the proposal that courts would have a general discretion to extend the time (as exists in some jurisdictions). The majority found that where the legislature has consciously considered and rejected a broader discretion, it is not open to courts to reintroduce it.
The Constitutional Challenge: Finality Is Itself a Right
Having found that article 34(3) is peremptory, the SCA turned to whether the absence of a condonation power unjustifiably limits the right of access to courts established by section 34 of the Constitution.
AFSA submitted that Article 34(3) does not limit Section 34 of the Constitution at all. The Set Aside Time Bar operates only after the parties have had a full opportunity to present their case and the arbitration has concluded. In the alternative, AFSA contended that any limitation is justified under section 36 of the Constitution, which allows for the reasonable and justifiable limitation of a party’s constitutional rights. The imposition of a proportionate deadline promotes finality and efficiency, compliant with internationally recognised arbitral objectives.
The majority found that although the imposition of a deadline limits the full scope of access to the courts, the limitation was constitutionally valid and justifiable because by choosing to arbitrate, parties accept arbitration’s procedural constraints on court access in exchange for efficiency and finality.
However, it is pertinent to note that the majority’s conclusions did not command unanimity. Two dissenting judgments reached opposing conclusions. Molemela P (Makgoka JA concurring) would have upheld the KOL’s Set-Aside Application (which the majority dismissed), and expressed a view that article 34(3) could be interpreted to give the court discretion to extend the Set Aside Time Bar, with good cause. By contrast, Modiba AJA’s dissent ran in the opposite direction: finding the KOL in default, she would have dismissed the Enforcement Application (which the majority upheld). The divergence between the two dissents, one pressing for greater judicial intervention, the other for stricter adherence to procedural finality, suggests that an appeal to the Constitutional Court cannot be ruled out.
Out of time: The Article 36 Alternative
The SCA noted that the expiry of the Set Aside Time Bar and the dismissal of the Set Aside Application do not extinguish all recourse. The KOL could still resist recognition and enforcement of the award under Article 36 of the Model Law by means of its Enforcement Application.
While the time-barred Set-Aside Application concerned the validity of the award itself, the rescission of the Enforcement Order, which affords the KOL an opportunity to oppose enforcement under article 36, does not set aside or extinguish the award.
South Africa’s Targeted Response to Fraud
In the Enforcement Application, the KOL alleged that government officials had engaged in corruption and fraud, both in the conclusion of the supply agreement and in the concealment of the ensuing arbitration and enforcement proceedings.
The allegation is of specific relevance in a South African context because one of the IAA’s most important features, and a deliberate departure from the standard Model Law text which contains no equivalent mechanism, is article 34(5)(b). This provision provides for a possible extension of the three‑month Set Aside Time Bar where an applicant proves that it did not know that an award is liable to be set aside because it was “induced or affected by fraud or corruption.”
This operates as an important safeguard, creating a narrowly tailored, knowledge‑based exception to an otherwise peremptory time bar. It directly addresses the standard critique of strict time limits — that wrongdoing may surface only after the deadline has expired — without introducing a broad judicial discretion. This was a considered policy choice when the IAA was drafted to preserve certainty and finality while ensuring that awards tainted by fraud are not insulated from scrutiny.
However, the KOL did not cite the alleged fraud or corruption in support of its Set-Aside Application, which is the forum in which the exception could have been engaged, instead only raising it in the context of the Enforcement Application. Consequently, the exception was not engaged, and the ordinary Set Aside Time Bar applied, meaning that the KOL was out of time. Had the allegation of fraud and a lack of knowledge of the existence of the Arbitration been raised and proven in the Set-Aside Application, there is a reasonable prospect that the majority would have considered the applicability of the exception (as the dissenting judgment did), and may have reached a different conclusion.
The majority judgment is a considered calibration. It aligns South Africa with other pro-arbitration jurisdictions that recognise limited departures from strict time limits to challenge awards. For example, under section 70(3) of the English Arbitration Act 1996, challenges must ordinarily be brought within 28 days, but section 80(5) provides a discretion to extend that deadline, albeit rarely exercised. South Africa’s targeted statutory carve-out reflects a similar philosophy: finality as the rule, relief from concealed wrongdoing as a principled exception, reinforcing confidence in both the integrity and predictability of South Africa as an international arbitral seat.
ABOUT THE AUTHORS
Jonathan Ripley-Evans is a partner based in Herbert Smith Freehills Kramer’s Johannesburg office. He has extensive experience in alternative dispute resolution, arbitration and general commercial litigation. He is a fellow of the CIArb, is an AFSA accredited mediator and arbitrator, and has acted as mediator, adviser and counsel in mediations and arbitrations, both domestic and international. He specialises in the resolution of commercial disputes in a wide range of sectors including energy, mining, tourism, hospitality, property and engineering
Fiorella Noriega Del Valle is a director based in Herbert Smith Freehills Kramer’s Johannesburg office. She has extensive experience in commercial litigation, cross-border dispute resolution and alternative dispute resolution. In 2025, she was ranked by Chambers as a “Next Generation Partner”. Ms Noriega Del Valle is fluent in English and Spanish, holds an advanced certificate in International Arbitration from the Chartered Institute of Arbitrators, and is a co-chair of the Young Arbitration Foundation of Southern Africa (“AFSA”).
Veronica Connolly is a Senior Associate based in Herbert Smith Freehills Kramer’s Johannesburg office and is a qualified solicitor of England and Wales. She specialises in the resolution of international commercial and investor-state disputes, with experience representing a range of private multi-national commercial entities, governments and State-Owned entities across Europe, Africa and the Middle East.
Kyle Melville is an associate based in Herbert Smith Freehills Kramer’s Johannesburg office. His experience relates to advising on and resolving large-scale infrastructure, energy and construction disputes in High Court proceedings, as well as in domestic and international arbitration proceedings. Kyle holds a Master’s in Law (with Distinction) from Queen Mary University of London, with a focus on International Commercial Arbitration and Investor State Arbitration. He is part of the global steering committee for the Campaign for Greener Arbitration
*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.
