Canton Trading 17 (Pty) Ltd t/a Cube Architects v Fanti Bekker Hattingh N O

Canton Trading 17 (Pty) Ltd, an architectural firm, rendered professional services to the Qwaha Trust over several projects. In 2014, in relation to the expansion of the Itau Mill, Canton Trading acted as principal agent under a JBCC building agreement concluded with a contractor. A separate written ‘Appointment of Professional Service Provider’ (PSP), containing a mediation and arbitration clause, was drafted but never signed by either party. After termination of the JBCC agreement and disputes about Canton Trading’s performance, the Trust alleged that Canton Trading was liable and sought to invoke clause 23 of the unsigned PSP to compel mediation and arbitration. Although correspondence and pre‑arbitration meetings took place, Canton Trading ultimately denied that any binding arbitration agreement existed, contending that there was no animus contrahendi to submit disputes to arbitration. The Trust approached the High Court to compel arbitration.

The appeal was upheld with costs. The order of the Full Court was set aside and replaced with an order remitting the matter to the High Court to determine whether the application should be referred to evidence, and if so on what terms, or whether it should be dismissed.

The case is significant for clarifying South African law on who decides disputes about the very existence of an arbitration agreement. It delineates the limits of the doctrines of separability and competence‑competence and cautions courts against using a robust approach to resolve genuine factual disputes about consent to arbitrate in motion proceedings. It reinforces that arbitration is consensual and that parties should not be compelled to arbitrate without clear proof of agreement.