FROM THE EDITOR’S PEN – AUGUST 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.
THINGS ARE NEVER JUST GOOD OR NEVER JUST BAD[1]
The enduring COVID-19 pandemic. A third wave caused by the new Delta variant of the virus with devastating consequences for South Africa’s citizens, residents and its economy. The imposition of strict level-4 lockdown. At the same time South Africa’s young democracy and the rule of law is subjected to a merciless onslaught by a defiant former President. The Constitutional Court saves the day and sentences the former President to a 15 month term of imprisonment for contempt of court. Supporters of the former President go on the rampage after he is imprisoned. South Africa reels from the ensuing series of riots and looting by depraved thugs. Just how much more can South Africa take?
Questions like this and others will inevitably arise. JP Landman, one of South Africa’s foremost political and economic analysts, says: ‘Societies move forward through shocks like this … We will see a positive result … Things are never just good or never just bad. We will get through this one as well …’[2] (My emphasis). Therefore, take heart. Things like this happen. It recently occurred in the United States of America, a superpower and – supposedly – a bastion of democracy. Just think back to 6 January 2021 when a mob of depraved thugs overran the Capitol building in Washington after its former President Trump refused to accept the election results in that country.
We will need to rebuild our nation on a foundation of good judgment, sound conscience, and inclusive ethics – a lesson informed by one of our featured articles: Ms Breitenbach’s powerful piece on prudence. Our country now cries out for an abundance of prudence. St Thomas Aquinas refers to three species of prudence (prudentia) in his Summa Theologiae (ST II-II), namely: ‘prudence simply so called, which is directed to one’s own good; another, domestic prudence which is directed to the common good of the home; and a third, political prudence, which is directed to the common good of the state or kingdom’[3] (my emphasis). The author, Steele, further points out that, as far as this third species of prudence is concerned, Aquinas considered that ‘… acts of political prudence most properly rest in one who governs and rules’.[4] It therefore reminds us of the need for good judgment by our leaders, as well as in our own lives – not only for our own good and that of our respective professions (and as arbitrators) – but also for our communities and our beloved country.
The winner of a case (consisting of 6 x 750 ml bottles) of Steenberg’s[5] highly acclaimed Steenberg 1682 Chardonnay Cap Classique NV[6] for her article, titled ‘Unconscionability’: To what extent does it, or can it, constitute a defence in South African law to a party’s ability to make a call for payment under an on-demand guarantee?’, published in the June 2021 e-periodical issue 9, is Ms Adine Abro. Congratulations Adine. We look forward to receiving further contributions from you soon.
The Tools of the Trade section in this edition of Arbitrarily Speaking! contains Ms Maritza Breitenbach’s second article in the series. It is titled ‘Code of Ethics: Practical Application: Prudence’. In it Ms Breitenbach examines the virtue of prudence and discusses the role it fulfils to enable an arbitrator, through deliberation and careful judgment, to seek concrete outcomes that are legitimate and durable. This series on ethics is undoubtedly of immense value to our members and readers.
Association Fellow and director Adv Kiki Bailey SC’s contribution to the Tools of the Trade section in this edition of the e-periodical focuses on a recent case in which a constitutional challenge to the adjudication procedure was brought. Her incisive analysis of the judgment in Zingwazi Contractors CC v Eastern Cape Development of Human Settlements and Others compels her to conclude that a contractually ordained adjudication process, when properly carried out, complies with the fundamental principles of natural justice and that courts should be slow to disregard such an agreed procedure.
Uncle Oswald’s Q&A Forum remains a key attraction for our readers. In this edition the much admired retired arbitrator advises Perplexed Paddy on the jurisdiction of the High Court to interfere in pending arbitral proceedings by, for example, granting declaratory relief. In his advice to Perplexed Paddy the wise old man refers extensively to a recent judgment in Tzaneng Treated Timbers (Pty) Ltd v Komatiland Forests SOC Ltd.[8] As always Uncle Oswald is most eager to answer your questions and queries on arbitrations and alternative dispute resolution (ADR). Please send them to the Association’s general manager, Ms Rochelle Appleton at rochelle@arbitrators.co.za
Our regular feature column, A case in point: Recent case reports, contains an analysis and summary that I had prepared of the sequel to the judgment discussed in the previous edition of the e-periodical. On this occasion the Supreme Court of Appeal’s judgment in the case Joint Venture between Aveng (Africa) (Pty) Ltd and Strabag International GmbH v South African National Roads Agency SOC Ltd and another 2021 (2) SA 137 (SCA) is analysed and discussed. The SCA’s judgment in this case restates the autonomy principle, but indicates that there is room to accommodate an underlying contact exception on the basis of one of its earlier judgements.
In the Breaking News section Chris Binnington Pr Eng refers to the Association’s long standing informal co-operation arrangement with the South African Institution of Civil Engineering (SAICE); the creation of a steering committee dedicated to furthering co-operation between these organisations; and the recordal of the aims and objectives and the necessary practical framework for their future cooperation in a Memorandum of Understanding signed by the Association’s chairperson, Adv Pierre Rossouw SC, and the SAICE’s CEO, Mr Vishaal Lutchman Pr Eng.
Members are again reminded that the purpose of this e-periodical is intended to serve their interests. As such, this e-periodical necessarily will benefit from their 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 ADR. This also serves as a reminder to our members that you too can win a case of Steenberg’s highly acclaimed Steenberg 1682 Chardonnay Cap Classique NV if you were to write and contribute an article of notable quality for one or more of next editions of Arbitrarily Speaking! In addition, if your contribution were to be adjudged the best overall contribution published in Arbitrarily Speaking! during the course of 2021, you could also win – and will have the choice of then selecting – one of two Mont Blanc™ fountain pens as a prize, viz., either a UNICEF 2017 Meisterstück Le Grande Platinum (with a blue sapphire stone) or a Bonheur Fountain Pen. This prize is donated by our generous sponsor Greig & Meinke . Readers are reminded that Greig & Meinke also 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 remain committed to serving your interests and appreciate your continued support for Arbitrarily Speaking!, and trust that you will enjoy this edition – Happy reading!
Editor
[1] JP Landman, political and economic analyst, in an interview with John Maytham on 13 July 2021 during Maytham’s radio show ‘Afternoon Drive’.
[2] Id.
[3] AM Steele, On Prudence according to St Thomas Aquinas, p. 6, referring to ST II-II, q. 47, a. 11 in fn 36.
[4] Steele, op. cit., p. 6, referring to ST II-II, q. 47, a. 12 in fn 37.
[5] 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.
[6] Steenberg Farms 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 (CODE to be used: BARFREE) on any order to purchase Steenberg’s highly acclaimed wines from its online store (website: https://www.dropbox.com/s/1441k40bmgx6fug/Steenberg The Black Swan Sauvignon Blanc %282%29.jpg?dl=0). This offer is valid until 31 July 2021, and it entitles members and readers to free delivery within South Africa on any such online orders.
[7] [2021] ZAECGHC 50 (11 May 2021).
[8] (43966/2020) [2021] ZAGPPHC 376 (22 June 2021).