FROM THE EDITOR’S PEN – JUNE 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.
BE IMPECCABLE WITH YOUR WORD[1]
Ruiz’s exhortation to the reader to be impeccable with his or her word, also has deep significance for arbitrators. To a greater or lesser degree it also intersects with the Code of Ethics (the Ethics Code) of the Association of Arbitrator’s (Southern Africa) NPC (the Association).
The adjective ‘impeccable’ is defined to mean: ‘1. free from fault or blame: flawless’; and ‘2. not capable of sinning or liable to sin’.[2] The word is derived from Latin word ‘impeccabilis’, being a combination of the Latin prefix ‘in-‘, meaning ‘not’, and the verb ‘peccare’, meaning ‘to sin’.[3] This probably also explains the now rare attribution to the second meaning ascribed to it, i.e., not capable of erring (sinning) or liable to error (sin), which, from a secular perspective, actually coincides with the first meaning ascribed: free from fault or blame.
Nonetheless, clause 3 of the Association’s Ethics Code embraces an ethic of responsibility, which can best be served by arbitrators who, in applying their skills, also are required to be impeccable with their word. It requires them, acting as arbitrators – as it actually does for all other persons too – to answer not just for their intentions or principles, but also for the consequences of their acts. In essence, it emphasises the importance of the responsibility of speaking with integrity and of carefully choosing one’s words before articulating them in an audible manner to others.
Against this background, we are most pleased to welcome back one of this e-periodical’s first contributors, Ms Maritza Breitenbach, with her brand new series of articles devoted to ethics, in which she will deal with the cardinal virtues of prudence, justice, fortitude and temperance (i.e. to be wise, brave, temperate and just). The Tools of the Trade section in this edition of Arbitrarily Speaking! contains her first article in the series. It is titled ‘Code of Ethics: Practical Application: Introduction’. In it she discusses the role of ethics, how ethical standards are developed, how such standards change over time, what virtues inform such ethical standards, and why all of this is important in the professional lives of arbitrators. I have no doubt that this series by Ms Breitenbach will enrich our members’ knowledge base, enhance their skillsets and contribute to their overall experience.
We are also very pleased to welcome back the doyen of arbitration law in Southern Africa, Prof David Butler, Emeritus Professor in Mercantile Law at Stellenbosch University and Life Fellow of the Association. Prof Butler’s previous valued contribution to Arbitrarily Speaking! was published in the March 2020 e-periodical issue 2 and in it he addressed the issue of discovery, and how practitioners and arbitrators alike should go about ensuring that the discovery process is taken care of efficiently and expeditiously in modern commercial arbitration in a Southern African perspective. In this edition, under the Tools of the Trade section, Prof Butler’s latest exciting contribution – titled ‘The Distinction between the Jurisdiction of the Arbitral Tribunal and the Admissibility of a Claim in the law of England and Singapore – Is such a development necessary in South African arbitration law?’ – explains the difference between the jurisdiction of the arbitral tribunal and the admissibility of claims, as accepted in England and Singapore. The author cogently argues why such distinction also should be recognised in South African arbitration law and how it can be given effect to without legislative intervention through the simple device of a change in the rules adopted by parties for governing their respective arbitral disputes.
Another new contributor is Ms Adine Abro, a recognised specialist in the field of construction law. Ms Abro’s contribution in this edition, under the Tools of the Trade section, deals with the question whether unconscionability does, or can, constitute a defence in South African law to a beneficiary’s ability to call for payment under an on-demand guarantee. She argues with conviction that the development in Singapore Law, which led to the recognition of the unconscionability exception in Singapore,[4] as separate and distinct from the fraud exception that is recognised internationally, should also be able to gain traction in South African law in the light of the Constitutional Court’s recent judgment in Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC), provided that the high threshold requirements of that exception are satisfactorily met.
Our regular contributor, Association Fellow Adv Kiki Bailey SC, is never one to disappoint. On this occasion she has again provided us with another one of her very practical contributions titled ‘Can an Arbitrator Resign?’, which appears under the Tools of the Trade section in this edition of the e-periodical. In providing the answer to this question, Ms Bailey carefully navigates the statutory waters of the Arbitration Act 42 of 1965, the International Arbitration Act 15 of 2017 (including the relevant Articles of the Model Law, being Schedule I to this Act), as well as the Association’s Ethics Code and relevant case law.
The section ‘In Memoriam’ pays tribute to two distinguished Fellows of the Association, who recently passed away. The first is an obituary for the late Judge (Ret.) Fergus Blackie, an Honorary Life Member of the Association, who passed away on 24 April 2021, written by the Association’s vice chairperson, Adv Tjaart van der Walt SC. The second, written by Association Fellow and director, Mr Alastair Hay, is for Adv Kemp J Kemp SC, who passed away on 27 January 2021, shortly after having recovered from a serious COVID-19 infection. The Association is saddened by their untimely deaths.
Before dealing with the new add-on to Arbitrarily Speaking! it is appropriate to first announce the prize winners of the best contributions to the issues 7 and 8 of the e-periodical that were published on, respectively, 1 February 2021 and 1 April 2021. The winner of a case (consisting of 6 x 750 ml bottles) of Steenberg’s[5] highly acclaimed Steenberg 1682 Chardonnay Cap Classique NV:
- First, for his practical article, titled ‘Interest in a nutshell’, that was published in the February 2021 e-periodical issue 7, is Adv AW (Mark) Harcourt SC, a senior member of the KwaZulu-Natal Bar; and
- Second, for her thought-provoking article, titled ‘Should adjudication determinations and arbitration awards in the fields of building, construction and engineering law be published?’, that was published in the April 2021 e-periodical issue 8, is Dr Tanya Hendry.
Our congratulations go to both first winners of this sparkling prize generously sponsored by Steenberg.[6] Thank you for your contributions Mark and Tanya. Please keep your contributions flowing, as we hope your new liquid assets will inspire you to do. This also serves as a reminder to our other 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! Need I remind those members – of which some are Honorary Members of the Association – who are retired judges of the High Court, Supreme Court of Appeal and the Constitutional Court, especially since you now ought to have more time to ‘give back’ to the profession that has served you so well, and which you, in turn, undoubtedly have served very well too, that your contributions to this e-periodical would be hugely appreciated. We all know what valuable contributions you are capable of making, especially those prodigious writers among you who have written exceptional judgments and masterful articles in the past.
Moreover, as you no doubt will recall, 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.
The irrepressible Uncle Oswald, reminiscing about his ‘friendship’ with Sir Winston Churchill, doesn’t say whether he was a party of the Boer patrol that captured the former journalist in November 1899 or the person who engineered his escape shortly thereafter. Since he describes Churchill as a ‘friend’, I’m inclined to suspect that it was rather this last-mentioned activity that cemented his friendship with the former journalist, who eventually transformed into a prolific statesman. Notwithstanding, this eyebrow raising bout of name-dropping, Uncle Oswald ably demonstrates in his Q&A Forum that he has lost none of his mental acuity when offering Challenged Charlie some sound advice on how to deal with a challenge to Charlie’s jurisdiction on the basis that the contract, including the arbitration clause, was supposedly void because of an initial illegality. 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
A brand new feature in this edition of Arbitrarily Speaking! is a column devoted to Readers’ letters. It is hoped that our members and readers will engage with us on any topic, including suggestions on how to improve this e-periodical; suggestions on how the Association’s services to its members might be improved; ideas they would like to engage with the contributors/authors of articles on; or on any other subject matter concerning arbitrations and ADR. The first letter to be published in this column, is written by Prof David Butler in which he comments on Dr Tanya Hendry’s thought-provoking article that I referred to earlier. Please follow Prof Butler’s fine example here and let it serve as a catalyst for your own letters to the column. Please also send such letters 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 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 [2019] 3 All SA 186 (GP). The judgment in this case raises, but ultimately fails to deal conclusively with, the question whether a guarantor can be interdicted from paying the beneficiary under a typical construction guarantee on grounds other than the well-recognised fraud exception.
Under the Arbitration education station section of Arbitrarily Speaking!, the Association’s chairperson, Adv Pierre Rossouw SC, provides an assessment of the first three lectures of 2021 that were hosted by the Association remotely, via the Zoom platform. The Society of Mediators (London) presented a five day mediation course from 22 to 26 March 2021 that I attended. It was an eye-opening adventure and I give my appraisal of it under this section too.
The Breaking News section provides members with a brief overview of, and a link to electronically downloading, the Association’s recently adopted Protocol on Remote Hearings. This document is intended to serve as a guide for our members to use in appropriate circumstances when they embark or intend embarking on remote hearings. This section further features a contribution from Mr Alastair Hay, the chairperson of the Association’s Kwazulu-Natal region, as well as a contribution from Mr Jonathan Mitchell, the chairperson of the Association’s Western Cape region, about recent activities (including remote workshops) that took place in their respective regions.
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.
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] This represents the First Agreement in Don Miguel Ruiz’s best-seller based on ancient Toltec wisdom, The Four Agreements (1997) Amber-Allen Publishing, Inc., California, p. 29 et seq. The remaining three agreements are: (i) Don’t take anything personally; (ii) Don’t make assumptions; and (iii) Always do your best.
[2] https://www.merriam-webster.com/dictionary/impeccable (accessed 10 May 2021).
[3] www.merriam-webster.com/word-of-the-day/impeccable-2020-11-11 (accessed 10 May 2021).
[4] See, among other Singaporean cases, BS Mount Sophia Pte Ltd v Join-Aim Pte Ltd [2012] SGCA 28.
[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.steenbergfarm.com/buy-wine-online/). 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.