FROM THE EDITOR’S PEN – JULY 2020
Advocate Eric Dunn, SC, is the editor of this e-periodical. Eric is a member of the Rivonia Group of Advocates and a senior member of the Johannesburg Bar. He is a Fellow of the Association of Arbitrators (Southern Africa) NPC and a member of the Society of Construction Law for Africa. Eric has a predominantly commercial practice, but over the past decade he has also focused on construction and engineering matters.
Eric has acted as a High Court judge on numerous occasions and has also appeared in many prominent reported cases in the High Court, Supreme Court of Appeal and Constitutional Court.
QUO VADIS? (WHERE ARE WE MARCHING?)
Since the publication of the previous e-periodical (May 2020 e-periodical issue 3), the COVID-19 pandemic has taken South Africans along an arduous path of a hard lockdown, followed by two slightly more relaxed paths at a level 4 and level 3 lockdown, but the journey is yet ongoing. Hence, the question at the outset – Where are we marching? Thus far the journey has forced us to think differently about many facets of our lives. It must have dawned on most, if not all, of us by now that it is unlikely that there will be a ‘going back’, at least not in the near future, to what could possibly be termed ‘normal’. Instead, we are required to embrace and adapt to this ‘new reality’ with the challenges that it holds and to make the best of it.
By now most of us probably would have encountered, and presumably then also used, one of the virtual software platforms, such as Zoom, Microsoft Teams or Cisco Webex. In doing so, we would have discovered that, although frustrating technical glitches might be encountered from time to time as part of this new reality, the overall experience of the technology generally has been positive and that it promisingly holds demonstrable time and cost savings with concomitant benefits for participants in the realm of alternative dispute resolution (ADR). In the previous edition, when I alluded to the fact that the reality of remote hearings had been endorsed by the judiciary in the United Kingdom,[1] my intention was to emphasise that its benefits in court proceedings could redound in the field of ADR, which is far more flexible. By now its widespread use is manifest.[2]
The Tools of the Trade section of this edition of Arbitrarily Speaking brings you the second in the series of Ms Maritza Breitenbach’s essays devoted to the methods of logical reasoning, the types of logical reasoning, and the ways in which logical reasoning serves as a foundational pillar for critical thinking. In this essay, ‘Logical Reasoning Application: Constructing an Argument’, Ms Breitenbach explores the two most fundamental principles – namely the logical structure and the truth of the supporting premises – underlying the mastery of constructing a good argument. Familiarity with these two principles, will equally assist our reader in detecting flawed and invalid arguments of opponents and arbiters.
We take pleasure in also bringing three more contributions in the Tools of the Trade section to our readers. Two of these pertain to the much-debated topic of adjudications. They were prepared for us by Mr Chris Binnington, presently a director and also a Life Fellow of the Association. In the first of his contributions, ‘Dealing with Defaulting Losers in Adjudications’, Mr Binnington provides a synoptic overview of some of the difficulties encountered in enforcing an adjudicator’s determination(s) against a defaulting loser in South Africa and, against that background, he provides our readers with some sound practical advice on how this problem can be overcome with relative ease. The second of his contributions, simply entitled ‘Adjudications’, deals with the shortcomings frequently encountered in a referring party’s submissions to an adjudicator and how these shortcomings can best be addressed.
The third contribution in this section, is also provided by a longstanding director and member of the Association, Mr Alastair Hay. This contribution, entitled ‘The Changing Face of Public Procurement’, is focused on the draft Public Procurement Bill (PPB),[3] the principal objective of which, according to its proposed long title, is ‘To regulate public procurement; to prescribe a framework for procurement policy envisaged in section 217(3) of the Constitution; and to provide for matters connected therewith’. A useful survey of some of the most notable features of the PPB is undertaken therein (including, a framework for preferential procurement, the establishment of procurement system, an elaborate multi-tiered mechanism and procedure for reviewing decisions made thereunder, deadlines for bids, cancellation of tenders, public-private partnerships, disposal of state assets and, lastly, enforcement) and, in conclusion, Mr Hay provides some thought-provoking comments on it.
The intrepid Uncle Oswald is never one to disappoint. In his increasingly popular Q&A forum, Uncle Oswald this time tries to offer some solace to Mr Dick Dodger, a very concerned arbitrator, that his personal (and rather inappropriate) notes, made during the course of arbitral proceedings over which Dodger presided, are actually not discoverable under rule 53 (1)(b) of the Uniform Rules of the High Court in review proceedings launched to have Dodger’s award set aside under section 33 of the Arbitration Act, 42 of 1965. After providing Dick Dodger with the answer he was anxiously waiting for, Uncle Oswald also poses a practical question in which he invites all readers, and unfortunately me too, to respond to him in relation to this question. Please do not disappoint him otherwise he can become quite rambunctious.
In our regular feature column, A Case in Point: Recent Case Reports, an analysis and summary of a fairly recent Australian case, Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486, is provided by me. This case was selected for inclusion on this occasion due to its current relevance and application, especially since it provides interesting and useful insights into the reasoning adopted by the court in favour of allowing a full-blown trial action to proceed via a remote virtual platform rather than adjourning it to some future date.
We appeal for your contributions to the column A Case in Point: Recent Case Reports especially where you are aware, or recently became aware, of some interesting unreported case. In this regard, please submit your contribution to the Association’s general manager, Ms Rochelle Appleton, by email: rochelle@arbitrators.co.za
We remain committed to serving your interests and appreciate your continued support for Arbitrarily Speaking.
Eric Dunn SC
Editor[4]
[1] English courts and tribunals have long had the power to hold hearings remotely, including by video conferencing. The COVID-19 pandemic further prompted the judiciary in England and Wales to publish a protocol for the holding of remote hearings (https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-hearings.Protocol).
[2] For example, in the UK (https://www.gov.uk/guidance/coronavirus-covid-19-courts-and-tribunals-planning-and-preparation#telephone-and-video-hearings-during-coronavirus-outbreak); in the USA – even by telephone conference – (https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_04-13-20); South Africa (https://supremecourtofappeal.org.za/index.php/2-uncategorised/46-practice-directions); and Australia, where the Australian High Court’s (https://www.hcourt.gov.au/) most useful protocol for conducting video-conferencing hearings can be downloaded.
[3] https://www.gov.za/sites/default/files/gcis_document/202002/bill-b-2020-finance2.pdf
[4] 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 Rivonia Group of Advocates, Sandton.