Eskom Holdings Limited v The Joint Venture of Edison Jehano (Pty) Ltd and KEC International Limited and Others

Eskom and the Joint Venture concluded an engineering and construction contract in May 2011 for the construction of a 100 km electricity transmission line, incorporating the NEC Engineering and Construction Contract. The project was delayed and substantially exceeded its original contract price. The Joint Venture submitted 13 claims totalling over R625 million, alleging delays attributable to Eskom during an extended completion period. Eskom denied liability and raised special pleas, including that most claims were time-barred under contractual clauses requiring prompt notification of compensation events and disputes. An adjudicator dismissed Eskom’s special pleas and awarded compensation to the Joint Venture. Both parties referred the matter to arbitration. The arbitrator upheld Eskom’s time-bar defence in respect of all 13 claims and dismissed the Joint Venture’s claims. The Joint Venture successfully reviewed part of the arbitral award in the High Court. Eskom appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court’s order reviewing and setting aside part of the arbitral award was set aside and replaced with an order dismissing the review application with costs.

The case reaffirms the narrow scope of judicial interference with arbitral awards in South African law and underscores the principle of party autonomy in arbitration. It clarifies the meaning of ‘gross irregularity’ and ‘exceeding powers’ under s 33 of the Arbitration Act and confirms that courts will not review arbitral awards for mere errors of fact or law committed within jurisdiction.