FROM THE EDITOR’S PEN – DECEMBER 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.
Each year arbitrators (inclusive of adjudicators and mediators), whether appointed by the Association, or some other nominating body (e.g. Arbitration Foundation of Southern Africa) or directly by the parties engaged in a dispute, quietly go about their task of resolving disputes by making awards[1] and providing reasons for them.
This is no mean task. It requires, among other things, focused dedication, diligence and fair mindedness. In the end, arbitrators are required to make decisions – something many people seek to avoid – and rationally justify them. These actions are burdensome, with endless reams of documents to read, listening to lengthy testimonies (often given by mendacious witnesses) and then taking account of all this in a structured manner to arrive at a fair decision.
Once their decisions have been made and published, whether in the form of an award, determination, or some other decision, they may be subjected to an appeal (if this procedure has been agreed between the parties) or, possibly, even a review on the restricted grounds listed in s 33 of the Arbitration Act 42 of 1965.
The reasons provided by the arbitrator for his/her award will be scoured over and subjected to strenuous scrutiny by the parties’ legal representatives when, and if, an appeal or review were to follow. Every error or potential error made, will be reassessed and criticised (or praised by one of the parties) before the arbitral appeal panel or a court of law on review.
Like judges, arbitrators are not infallible. If their decisions are upheld, they may experience modest pride in their work, but when they are criticised personally or trenchantly, they may experience resentment.
It is certainly not an activity for the timidly minded person. We salute all arbitrators, who daily go about their tasks, as outlined above, with fearless determination, dedication and fair mindedness.
The year ahead promises to be a challenging one in South Africa. The upcoming national and provincial elections to be held in 2024 will be the seventh elections held since the end of apartheid in 1994. We can expect the usual infighting between political parties, with political and populist slogans being bandied about. The one troubling tendency is the emergence of populists and demagogues across the world. The French philosopher, Raphaël Liogier, is said to have characterised populism as follows in the New York Times (14 April 2017):[2]
‘Populism should not be confused with demagoguery, which is a natural tendency in representative democracies, a temptation to seduce voters rather than convince them. Nor is populism about being in touch with the people. Rather, it is the claim to speak in the people’s place, in their name, and convey an undeniable shared truth on their behalf. In particular, populism claims to express the emotion of a people that feels beleaguered, diminished and lost. Its discourse is nostalgic for past power and wedded to a frantic defence of identity.’
We hope and trust that the forthcoming elections will be conducted freely and fairly in a harmonious political environment. Whichever party wins these so-called ‘watershed’ elections, will have to put South Africa on a path of economic recovery and prosperity. In order to do so, any newly elected government will have to prioritise, among other things, the immediate remediation of electricity generation and distribution in South Africa for the benefit of all its citizens and residents, as well as the business community .
We thank our all our contributors for their engaging articles. I must especially mention first time contributor, Mr Kalipa Mafungo, an admitted attorney, notary and conveyancer. Kalipa is a director of Mafungo Attorneys, as well as a Fellow of the Association. He has provided an article containing an interesting analysis of arbitration under the provisions of the Petroleum Products Act 120 of 1977. Kalipa’s article appears in the Tools of the Trade section of this periodical. We would appreciate many more such contributions from him.
Our other first-time contributors are Mr Timothy Baker and Ms Claudia Moser. Timothy is a director in the Dispute Resolution department of Cliffe Dekker Hofmeyr (CDH), while Claudia is an associate in that department. They have graciously granted permission to us to republish their co-authored article ‘Pipped at the Post?’ that was first published on CDH’s website https://www.cliffedekkerhofmeyr.com/en/news/publications/2023/Practice/Dispute/dispute-resolution-alert-26-september-pipped-at-the-post. This article also appears in the Tools of the Trade section of this periodical. We trust that Timothy and Claudia will become frequent contributors to this e-periodical.
Mr Damien James and Ms Marcia Davids of Damian James Delay & Quantum Experts are also first-time contributors to this e-periodical. Their co-authored article on climate change and its effect on construction contracts and disputes serves as a timely wake-up call for all of those involved in the construction industry to pay heed to the effects of climate change and how the risks that may arise from it may be managed meaningfully to avoid or, at least, ameliorate such risks. Damien and Marcia, we urge you to become frequent contributors to the growing list of articles published in Arbitrarily Speaking!
Mr Alastair Hay, a director and Fellow of the Association, has again – Alastair is a regular contributor – contributed a very practical article to the Tools of the Trade section. In this article Alastair considers the ambit of the duty of architects, engineers, quantity surveyors and employers’ agents – referred to therein as EAs or PAs – to supervise the execution of construction works; and provides sage advice to them if they fail in this duty.
Longstanding Fellow of the Association and well-known architect, Mr Stanley Segal, is also a first-time contributor to this e-periodical. In his article Stan refers to his involvement in the Ekurhuleni West College v Segal and Another (1287/2018) [2020] ZASCA 32 (2 April 2020), and proposes that the adjudication rules in the various suites of construction contracts used in South Africa ought to be unified.
Unfortunately, Uncle Oswald’s popular Q & A forum remains unpopulated this time around. The young man, who professes to have played rugby with Oom Paul Kruger at the Diggers Rugby Club, has already embarked on his summer vacation.
Our regular feature column, A Case in Point: Recent Case Reports, contains a discussion on an important case for adjudicators. Association Fellow and director, Adv Kiki Bailey SC, discusses the Supreme Court of Appeal’s judgment delivered in Ethekwini Municipality v Coopepativa Muratory & Cementisti – CMC Di Ravenna Societa Cooperativa.[3] Two important questions were considered in it, namely, whether enforcement would be contrary to public policy and whether an order for payment of a money debt is a discretionary remedy.
Members are reminded that this e-periodical belongs to them. As such, this e-periodical can only benefit from their contributions and they are encouraged to share their knowledge and skill of their specific disciplines, as well as their knowledge of and involvement in alternative dispute resolution. We would also appreciate if you could share with us your views on how the e-periodical could be made more popular. Further, we would also appreciate it if you would indicate whether the awarding of prizes (such as a case of sparkling wine, or even ordinary wine, and/or a prestigious fountain pen) would prompt readers to contribute articles to the e-periodical. In this regard, we encourage you to indicate your precise views on the latter questions in an email addressed to the Association’s General, Ms Rochelle Appleton, whose email address is rochelle@arbitrators.co.za
We hope and trust that you will enjoy this edition of Arbitrarily Speaking – Happy Reading!
Editor
In the case of adjudicators, by issuing determinations/decisions, or, where mediators are involved, by guiding parties to a facilitated settlement of their dispute/s.
AC Grayling, Democracy and Its Crisis, OneWorld Publications, 2017, at p. 115.
(Case No. 181/2022) [2023] ZASCA 95 (12 June 2023). Also now reported at 202 JDR 2053 (SCA).