FROM THE EDITOR’S PEN – APRIL 2023
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.
‘LET’S BE TOUCHED BY
THE BETTER ANGELS OF OUR NATURE.’
Load-shedding caused severe distress among ordinary South Africans. Those who are fortunate enough to have solar power, generators or inverters can continue with normal daily activities. To a greater or lesser extent we have been spared a descent to deeper levels of desperation. But spare a thought for those less fortunate, who have no escape from the rigours inflicted by the severity of this situation. Their lives are lived without a commodity that we still take for granted. Their emotions are understandably at boiling point. That is why all South Africans must stand together to get us out of this mess.
Moving from the present era to an ancient one, when there was no electricity – and certainly no load-shedding to be concerned about. Arbitration is one of the ancient forms of settling disputes. Reference is frequently made to the well-known incident in 1 Kings 3: 16 to 28, where King Solomon was called on to resolve a dispute between two mothers concerning the parenthood of an infant. However, it appears that although the parties chose the king to resolve their dispute, he appears to have acted in his official capacity rather than as a private arbitrator.[1]
Arbitration also appears as a form of dispute resolution at the beginning of Greek history. The ancient Greek poet, Homer (circa 800 BC), who composed the Iliad, wrote how the murderer of a man offered full compensation for the deceased’s death. The representative of the deceased rejected the compensation offered. The dispute between the murderer and the deceased’s representative took place in a public square. The two disputants requested an outsider ‘versed in the law’ to resolve the matter by giving a decision. The outsider presided over the matter while any onlookers wishing to speak would do so either in favour of one or other of the disputants. The outsider ultimately entrusted the judgment to ‘… the elders, sitting on polished stones in a sacred circle, who each in turn held the mace and gave his opinion.’ It appears as if a majority vote led to the ultimate decision. It was then left to the outsider, who was asked to preside over the dispute in the first instance, to convey the decision and to enforce it.[2]
Since those ancient times arbitration, as a form of private dispute resolution, outside the realm of national courts, has progressed in leaps and bounds. Currently, for domestic arbitrations, the Arbitration Act 42 of 1965 applies. The International Arbitration Act 15 of 2017 regulates international arbitrations. Arbitrations, as well as the other two forms of dispute resolution, adjudication and mediation, are now commonly used to resolve private commercial disputes and they are becoming increasingly popular with potential litigants/disputants.
On 22 March 2023, colleague and Association Fellow, Adv Cassie Badenhorst SC, attended an informative workshop hosted by the International Division of the Arbitration Foundation of Southern Africa (AFSA). Cassie informed me that this workshop covered the following practical topics largely associated with the new AFSA International Rules (the Rules):
- Establishing the Arbitration; Jurisdiction; Appointment of Arbitrators; Conflicts;
- Case Management and Terms of Reference; Interim Relief; Directions and Orders;
- The Rules and How to Apply Them;
- Conduct of Hearings; Remote Hearings and Handling Experts;
- Conflicts and Awards: Making sure they are enforceable!
The discussions were moderated by a team of respected local and international experts, including a strong contingent from the London Bar, namely Edwin Glasgow CBE KC, Lindy Patterson KC, and Marion Smith KC.
Delegates were given the opportunity to engage with members of the new AFSA Court which was recently established under the International Rules. Retired Chief Justice Sandile Ngcobo serves as the President of the Court which oversees arbitrations conducted in terms of the Rules. Courts of this kind are common internationally, but this is the first of its kind in South Africa.
We congratulate AFSA on the success of its workshop and wish the AFSA Court well in the work it will be undertaking for the development of international arbitration in South Africa.
We thank all our contributors for their engaging articles. I must especially mention first time contributor, Adv Mias Mostert, a Fellow of the Association, who has provided us with an important article on the provisions of article 20 of the Arbitration Act 42 of 1965. Mias’s article appears in the Tools of the Trade section of this periodical. We look forward to many more such contributions, Mias. Mr Alastair Hay, a director and Fellow of the Association, has also contributed an article to the Tools of the Trade section. Alastair’s article expounds on how a party to an arbitration agreement might succeed in side-stepping such agreement. The third contribution to the section is by construction expert, Mr Jonathan Cope, a director of MCMS Ltd, a leading specialist in all areas of dispute resolution and avoidance. The latter contribution was first published as a Thomson Reuters Practical Law Construction Blog on 12 April 2022. and it is now published here in its entirety with the kind permission of Thomson Reuters and the author.
In Uncle Oswald’s popular Q & A forum he provides his redoubtable old friend, Fearless Frikkie, with advice about whether or not his claims against Piet Wildeboer have become prescribed.
Our regular feature column, A Case in Point: Recent Case Reports, contains an analysis and summary of an important case for arbitrators. It is an unreported judgment of a full bench appeal under case numbers: 27859/2018 and 32340/2018 in the High Court of South Africa, Gauteng Division, Johannesburg. Association Fellow and director, Adv Kiki Bailey SC, has undertaken a keen analysis of this judgment for the benefit of our members and readers.
All the above demonstrates that this e-periodical belongs to our members. Without your contribution your knowledge and your skill in specific disciplines, we would have very little to mull over as we face a winter without power. And let’s revisit the idea of the ‘better angels of our nature’,[3] pulling together in these dark days sharing our skills and insights, and helping to shape the society we all want to live in.
We hope and trust that you will enjoy this edition of Arbitrarily Speaking – Happy reading!
Eric Dunn SC
Editor[4]
David Butler and Eyvind Finsen, Arbitration in South African Law and Practice, Juta & Co, Ltd (1993), at p. 4 in footnote 27.
NGL Hammond, ‘Arbitration in Ancient Greece’, Arbitration International, Volume 1, Issue 2, 1 July 1985, pp. 188–190.
Borrowed from the concluding paragraph of Abraham Lincoln’s inaugural address on 4 March 1861, after he had been sworn in as the 16th President of the USA, where he, while especially appealing to the slave-owning southern states that had not supported his candidacy for president, said the following, ‘I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature’. (own emphasis) (See: “The Better Angels of Our Nature”: President Lincoln’s First Inaugural Address — The Henry Ford” Blog – Blog – The Henry Ford (Accessed 19 April 2023). The subject- heading of the editorial ‘Let’s be touched by the better angels of our nature’ was also inspired by the emphasised phrase.
The editor is a senior member of the Johannesburg Bar and a Fellow of the Association of Arbitrators (Southern Africa) NPC. He practices at the Maisels Group of Advocates, Sandton.