1. Introduction

Lis alibi pendens is a dilatory defence that may be raised where a party institutes proceedings in circumstances where the same dispute is already pending before another tribunal or court. The doctrine serves to prevent the duplication of litigation and the risk of conflicting judgments.

Parties sometimes seek to invoke this defence where a dispute initially brought before a court is subsequently referred to alternative dispute-resolution mechanisms, such as adjudication, in terms of contractual provisions. However, the application of the defence is strictly circumscribed and dependent on clearly defined requirements.

2. The Legal Test for Lis Alibi Pendens

The requirements for lis alibi pendens were authoritatively articulated in Nestlé (South Africa) (Pty) Ltd v Mars Inc[1] and reaffirmed in Spencer and Others v Memani and Another[2].

In Nestlé, the court held that the defence will succeed only where the party raising it establishes:

that the dispute is between the same parties;
that it arises from the same cause;
that the same relief is sought; and
that the matter is already pending before another tribunal or court competent to finally determine the dispute.

The doctrine is rooted in the avoidance of duplication and the prevention of conflicting final determinations. Each requirement is applied strictly, and the absence of any one is fatal to the plea.

Adjudication proceedings do not satisfy these cumulative requirements.

3. Adjudication and the Nature of Proceedings

Adjudication does not constitute “litigation” for the purposes of lis alibi pendens. The foundational rationale of the doctrine, namely the avoidance of conflicting final judgments, is absent in adjudication proceedings.

An adjudicator’s decision is interim in nature, remaining binding only until it is reconsidered and finally determined by a court or arbitral tribunal.

4. Same Parties

This is the only requirement that may be satisfied in the context of adjudication. The dispute will typically involve the same contracting parties.

However, compliance with this requirement alone is insufficient, as all elements must be met cumulatively.

5. Same Cause

The requirement of the same cause is not met. In adjudication, the cause of action is the contractual entitlement to an interim determination in terms of the dispute-resolution clause. In litigation, the cause of action concerns the final determination and enforcement of substantive rights. These are materially distinct juridical bases.

6. Same Relief Sought

The relief sought also differs. Adjudication yields interim, provisional relief, whereas litigation seeks final and enforceable relief. Because the nature of the remedies differs fundamentally, this requirement is not satisfied.

7. Tribunals of Equal Competence

In Nestlé, the Supreme Court of Appeal emphasised that lis pendens applies only where proceedings are pending before tribunals of equal competence to finally determine the dispute.

This requirement is not met in the case of adjudication. Adjudication derives its authority from contract and produces interim outcomes; courts derive their authority from law and issue final, binding judgments.

These forums perform different functions and resolve different juridical questions. Accordingly, there is no risk of competing final determinations.

8. Conclusion

Adjudication, as a non-final, contractual dispute-resolution mechanism, falls outside the scope of lis alibi pendens. As recognised in Framatome v Eskom Holdings SOC Ltd[3], it is designed to produce speedy, interim determinations, subject to final reconsideration in arbitration or litigation.

Adjudicators do not issue final, binding judgments. Their decisions are provisional and operate only until replaced by a final determination.

Accordingly, adjudication proceedings do not meet the substantive requirements of lis alibi pendens, which presupposes a tribunal capable of finally determining the dispute.

The proper application of the doctrine must remain aligned with its purpose: to prevent duplication, to avoid conflicting final judgments, and to promote judicial efficiency.

[1]Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA).

[2]Spencer and Others v Memani and Another (675/2012) [2013] ZASCA 146.

[3]Framatome v Eskom Holdings SOC Ltd (357/2021) [2021] ZASCA 132; 2022 (2) SA 395 (SCA).

FAQs

Are online mediation and arbitration hearings legally valid in South Africa?

Yes. The 2026 ECT ADR regulations recognise electronic communications as a valid medium for conducting mediation, arbitration and adjudication, subject to due-process safeguards including consent, adequate notice and record integrity. Practical tip: record identity verification and consent on camera at the start of every hearing.

How do the 2026 Electronic ADR regulations affect enforceability of settlements and awards?

The regulations support electronic records and signatures as legally valid, but enforceability still depends on demonstrable authentication, adherence to procedural rules, and the applicable enforcement legislation, principally the Arbitration Act 42 of 1965 for awards and court rules for consent orders. Practical tip: use advanced electronic signatures on all binding instruments and convert mediated settlements to consent orders promptly.

What are the rules for electronic signatures and digital evidence in ADR?

The ECT Act distinguishes between standard and advanced electronic signatures. Both are admissible, but advanced electronic signatures carry a higher evidentiary presumption. Digital evidence must be authentic and its integrity demonstrable, parties should preserve metadata, generate hash values and maintain a chain-of-custody log. Practical tip: include an e-signature and evidence protocol in every ADR clause.

How should construction contracts be updated for remote ADR?

Add explicit language covering platform selection, notice periods, evidence-exchange deadlines, recording rules, authentication standards, cost allocation and a technology-failure fallback provision. Standard-form contracts (FIDIC, JBCC, NEC) should be supplemented with bespoke electronic ADR amendments. Practical tip: draft both a mandatory remote-hearing provision and a hybrid option to accommodate site inspections or complex technical evidence.

Can an arbitral award rendered after a remote hearing be enforced?

Yes. An award made following a remote hearing is enforceable in the same manner as one made in person, provided the tribunal observed due process and the award meets the formalities of the Arbitration Act. For international awards, the New York Convention applies without a separate bar against electronic proceedings. Practical tip: preserve all hearing logs, authentication records and signature certificates to support any enforcement application.

Who is responsible for technology failures during a remote hearing?

Responsibility should be contractually allocated. Typically, the tribunal selects the platform and the parties bear their own connectivity costs, but the procedural order should include a technology-failure protocol covering adjournments, session reconvention and the option to revert to in-person proceedings. Practical tip: always designate a backup communication channel and appoint a hearing administrator.

Do South African courts accept digital copies of evidence submitted in arbitration?

Courts will accept electronic evidence where authenticity and integrity are demonstrable. The ECT Act provides that an electronic record is not inadmissible solely because it is in electronic form. Parties should be prepared to provide metadata, hash values and, if necessary, an affidavit from an IT forensics expert. Practical tip: maintain original electronic records alongside any converted versions and keep snapshots of all metadata at the point of collection.