FROM THE EDITOR’S PEN – APRIL 2021
Advocate Eric Dunn SC is the editor of this e-periodical. Eric is a member of the Maisels Group of Advocates and a senior member of the Johannesburg Bar. He is a director and Fellow of the Association of Arbitrators (Southern Africa) NPC, as well as a member of the Society of Construction Law for Africa.
HOPE IS IN THE AIR
With the finance minister’s budget speech of 24 February 2021 now well behind us, the private sector and other role players in the construction and engineering industry are keenly anticipating the rollout of the R791.2 bn, reported to have been set aside for infrastructure development, to stimulate the country’s flagging economy. The much-anticipated rollout cannot happen soon enough. One of South Africa’s foremost political and trend analysts recently observed that:[1]
‘The budget quite religiously followed the [*President’s] State of the Nation (SONA) speech in committing government to pursue … reforms. … The political and economic lesson from the budget is clear: growth will be pursued through structural reform.’
(Emphasis and *insertion added)
The same analyst concludes that ‘South Africa’s road back to growth can only come from structural reform, particularly in electricity, spectrum and infrastructure’.[2]
In the previous issue of Arbitrarily Speaking! (February 2021 e-periodical issue 7) it was anticipated that an announcement would be made in the current issue about the awarding of a prize or prizes for the best-written contributions received from a contributor or contributors to this e-periodical during the course of this year.
We are proud to announce that Greig & Meinke has generously offered to contribute a Mont Blanc™ fountain pen, valued at almost R15 000.00, as a prize for the best overall written contribution, submitted by any member of the Association,[3] that is published in Arbitrarily Speaking! during 2021.
The winner of this great annual prize will have a choice of selecting one of two Mont Blanc™ fountain pens, viz., either a UNICEF 2017 Meisterstück Le Grande Platinum (with a blue sapphire stone) or a Bonheur Fountain Pen. In addition to this prize, Greig & Meinke has undertaken to offer the Association’s members and the readers of Arbitrarily Speaking! a special fifteen percent (15%) discount on certain items, including jewellery, watches and pens.
We are equally proud to announce that another sponsor, Steenberg Farm,[4] has generously offered to contribute a case (consisting of 6 x 750 ml bottles) of its highly acclaimed Steenberg 1682 Chardonnay Cap Classique NV, as a prize for the best written contribution, submitted by any member of the Association,[5] that is published in each issue of this e-periodical during the course of this year. This offer translates to a very handsome total yearly contribution of six cases – each case consisting of 6 x 750 ml bottles – valued at over R7 000.00, with one case going to the winning contribution per issue. Moreover, Steenberg has also generously undertaken to offer the Association’s members, as well as the readers of this e-periodical, a fifteen percent (15%) promotional discount code[6] on any order to purchase Steenberg’s highly acclaimed wines from its online store. This offer is only valid until 15 April 2021, and it entitles members and readers to free delivery within South Africa on any such online orders.
The annual prize of the Mont Blanc™ fountain pen for the best written contribution received during the course of this year, will be announced in the first issue of Arbitrarily Speaking! to be published in 2022. The annual winner will be selected by a panel of three (3) persons recommended by the editor. The selected panel’s decision will be final.
Steenberg Farm’s prize for the best contribution to each issue of Arbitrarily Speaking! will be announced in the very next issue to be published. This means that the prize winners for the best contributions published in the February and April 2021 issues of this e-periodical will be announced in the June 2021 e-periodical, issue 9. The winner for the best written contribution to each issue of the e-periodical will be selected by a panel of two (2) persons recommended by the editor. The selected panel’s decision will be final.
This exciting news about the prizes that can be won for your contributions ought to spur you on, so dust off your computers’ keyboards and let your contributions flow. Making allowance for the fact that some of the Association’s more senior members, like the retired and well-liked former arbitrator, Uncle Oswald, might possibly be more comfortable at hammering away at the keys of some ancient Remington typewriter, collect it from its almost forgotten storage place, have it serviced and get hammering away.
The Tools of the Trade section in this edition of Arbitrarily Speaking! contains another valuable contribution to our understanding of adjudication by Adv Kiki Bailey SC. In it she discusses the recent judgment of the Western Cape High Court in Confact Core Construction CC v JLK Construction (Pty) Ltd[7] and provides our readers with some especially noteworthy insights into adjudication, as a dispute resolution mechanism, in the context of a JBCC nominated/selected subcontract.
The ever-increasing interest in and popularity of alternate dispute resolution (ADR) prompted Dr Tanya Hendry to write an article titled ‘Should Adjudication Determinations and Arbitration Awards in the fields of Building, Construction and Engineering Law be Published?’ The article deals with, among other things, the paucity of data concerning determinations in adjudication proceedings and arbitral awards in arbitration proceedings. She suggests that the statutory establishment of a specialist court, similar to the Technology and Construction Court for England and Wales, which deals primarily (but not exclusively) with disputes arising from the construction industry, might be the answer, or part of the answer, to the various problems she outlines in her article about the perceived lack of development of construction law in South Africa. Dr Hendry’s article is bound to excite debate on a number of the controversial issues she writes about therein.
The last contribution to the Tools of the Trade section consists of a brief article, authored by the editor, on the legal principles informing the role of expert witnesses and how their evidence is to be evaluated.
In Uncle Oswald’s Q&A Forum he writes to his and Fearless Frikkie’s mutual friend, Mr Sam Shabangu, to offer the latter some important advice – in a dispute involving a provincial department – on the interesting question of whether section 6 (1) of the Arbitration Act 42 of 1965 abolished Mr Shabangu’s common law right to rely on an arbitration agreement, as a defence to legal proceedings instituted against him by that provincial department. Uncle Oswald recently reminded me to request our readers to send any questions they seek his advice on to the Association’s general manager, Ms Rochelle Appleton, by email at: rochelle@arbitrators.co.za.
In our regular feature column, A case in point: Recent case reports, a longstanding director and member of the Association, Mr Alastair Hay provides a useful and practical analysis and summary – under the rather amusing title ‘To Support or not To Support’ – of the recent judgment by the Supreme Court of Appeal in Petropulos and another v Dias [2020] 3 All SA 358 (SCA). The judgment in this case deals with the vexed question, as Alistair’s chosen title foreshadows, of the proper scope and ambit of the duty of lateral support owed to neighbouring properties, and of the concomitant right to lateral support from such neighbouring properties. The case is important to all disciplines involved in building, construction and engineering disputes.
Members are once again reminded that the purpose of this e-periodical is intended to serve their interests. As such, this e-periodical necessarily will benefit from members’ contributions and they are therefore encouraged to share their knowledge, skill and experiences of their specific disciplines, as well as their knowledge of and involvement in alternative dispute resolution.
We remain committed to serving your interests and appreciate your continued support for Arbitrarily Speaking!, and trust that you will enjoy this edition – Happy reading!
Eric Dunn SC
Editor
[1] JP Landman ‘Budget 2021’, 25 February 2021: http://www.jplandman.co.za/Home/Read/570 (accessed 10 March 2021) under the caption ‘What may very well happen’.
[2] Ibid., under the caption ‘So What?’
[3] The Association’s directors and their family members, the Association’s staff and the editor of this e-periodical, are not eligible to participate for, or to be taken into consideration for the award of, this prize or any other prize(s) referred to in this issue or any future issue thereof.
[4] The Cape’s first registered farm established in 1682, Steenberg is a haven of tranquillity steeped in heritage just 30 minutes from the bustling heart of Cape Town. Located in the idyllic cool-climate Constantia Valley, Steenberg produces some of the finest Sauvignon Blanc, Merlot and Cap Classique in South Africa, along with other celebrated wines. It is Steenberg’s distinctive terroir which inspires wines with a strong sense of place and which encapsulates the heritage of Steenberg.
[5] See footnote 3 above.
[6] The promotional code that must be used, is: BARFREE.
[7] 2020 SACLR 501 (WC).
