Snowy Owl Properties 284 (Pty) Ltd v Mziki Share Block Limited

The parties are neighbouring landowners bound by a registered notarial servitude agreement concluded in 1990, granting reciprocal rights of access over each other’s properties for game viewing along existing roads. From 2017, Snowy Owl Properties (the servient owner) closed, destroyed and ripped up several servitude roads on its property, allegedly for environmental rehabilitation reasons, without consulting Mziki Share Block (the dominant owner). Mziki instituted arbitration proceedings in terms of the arbitration clause in the servitude agreement, seeking reinstatement, reopening and maintenance of the roads. The arbitrator rejected Snowy Owl’s defences and ordered it to reopen, reinstate and maintain specified existing roads. Mziki then applied to the High Court to have the arbitration award made an order of court under s 31(1) of the Arbitration Act. Snowy Owl opposed, contending that the award was unenforceable because it required unlawful conduct and was vague. The High Court made the award an order of court, and Snowy Owl appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, and the application to admit further evidence under s 19(b) of the Superior Courts Act was dismissed. The arbitration award remained an order of court.

The case reaffirms the strong pro-enforcement stance of South African courts towards arbitration awards and clarifies that courts will not permit enforcement proceedings to be used as a disguised appeal on the merits. It confirms that awards involving servitude rights will be enforced unless they clearly sanction illegality, and that environmental authorisation arguments cannot be raised belatedly where they were already considered and rejected in arbitration. The judgment also strengthens legal certainty regarding the enforceability of arbitral awards affecting property and servitude rights.