FROM THE EDITOR’S PEN – JUNE 2024
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.
HOPE IS A WAKING DREAM[1]
South Africa’s seventh national and provincial elections since the end of apartheid were held on 29 May 2024. No party obtained an outright majority in the national election. The African National Congress (ANC), despite obtaining the largest share of the vote in the national election, was no longer able to govern the country on its own. As a result, it stated from the outset that it preferred forming a government of national unity (GNU). This was achieved recently with the Democratic Alliance (DA), the Inkatha Freedom Party (IFP) and the recently formed Patriotic Alliance (PA) all agreeing to form the GNU with the ANC. We remain hopeful that the country, its people and the economy will be the principal beneficiaries of this political realignment. This is vital to foster unity and cohesion in our society, because it is only through a shared sense of hope that people can be unified and encouraged to cooperate and strive for economic growth and prosperity for all.
So, let’s carry on hoping.
Johannesburg Arbitration Week (JAW) took place from 9 to 11 April 2024. The event was hosted by the Arbitration Foundation of Southern Africa (AFSA) and its co-hosts,[2] all founding members of AFSA. The event also witnessed the signing of an alliance between AFSA and some eleven member states of the Southern African Development Community (SADC). AFSA and its co-hosts are to be congratulated on the successful holding of this prestigious event. We hope that AFSA’s JAW will grow from strength to strength.
Quite recently, at a similar event – the London International Disputes Week’s conference – held during the beginning of June 2024, the Lady Chief Justice, Dame Sue Carr, mooted the establishment of a London-based Dispute Resolution Committee with the objective of bringing the three main forms of dispute resolution – mediation, arbitration and litigation – closer together to consider how they can best complement each other and learn from each other. Dame Carr’s suggestion appears to have been prompted, at least in part, by the Court of Appeal’s decision in Churchill v Merthyr Tydfil County Borough Council,[3] in which the Master of the Rolls, Sir Geoffrey Vos, held that an earlier decision (Halsey v Milton Keynes General NHS Trust) was not binding on the lower courts. In this regard he ruled:
‘Courts can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that the order made did not impair the very essence of the claimant’s right to proceed to a judicial hearing, and was proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.’
The type of non-court-based dispute resolution process referred to in this quoted passage, was an internal complaints procedure operated by a local authority. The other party (Churchill) was not contractually bound to follow such procedure. This is a fairly significant development for England and Wales and might inspire an avid reader or member to produce an article on this rubric for Arbitrarily Speaking!
We welcome two new first-time contributors in this issue, namely Mr Kevin Spence and Mr Brad Boertje. They are both well-known in the construction industry and to the members of the Association. Kevin is a Fellow of the Association of Arbitrators (Southern Africa) NPC (AoA) and is the only FIDIC-accredited trainer in South Africa. He is also an adjudicator on the FIDIC President’s List. Kevin is considered an expert in the suite of FIDIC contracts. He specialises as an independent consultant in large scale construction claims and dispute resolution. His article, ‘FIDIC Golden Principles: They Apply to all Construction Contracts!’, enlightens our readers on five indispensable core principles applicable to FIDIC contracts, which – so Kevin contends – could and should find application in other construction contracts too.
Brad is a highly experienced quantity surveyor, as well as a fellow of the AoA. Brad’s article, ‘Adjudicators must pay careful attention when drafting their determinations’, highlights some of the most common pitfalls in the drafting of determinations by adjudicators. We are grateful for these contributions and encourage Kevin and Brad to become regular contributors to this e-periodical.
We are equally grateful for the contributions received from our regular contributors, Adv Kiki Bailey SC, Mr Chris Binnington, Mr Alastair Hay, who are all Fellows and directors of the AoA. And, of course, there is Uncle Oswald, a stalwart contributor, with his encyclopaedic memory and an uncanny ability to recall minute details from a bygone era.
Our regular feature column, A case in point: Recent case reports, contains Kiki’s analysis and discussion of the Supreme Court of Appeal’s judgment in Close-Up Mining (Pty) Ltd and Others v The Arbitrator, Judge Phillip Boruchowitz and Another[4], which canvassed the question whether an arbitrator has the discretionary capacity to decide a dispute that has not been pleaded.
Chris’s article titled ‘Recusal of an Arbitrator or Adjudicator’, considers two leading South African cases that provide a useful analysis of the law regarding the recusal of an arbitrator or adjudicator. This article is featured in the Tools of the Trade section of this e-periodical.
Alastair Hay’s article contains a fascinating analysis of an English case, i.e., The Federal Republic of Nigeria v Process & Industrial Developments Ltd [2023] EWHC 2638 (Comm) (Date of judgment, 23 October 2023), where a fraudulent enterprise resulted in a favourable arbitral award being overturned as a result of the fraud that, unbeknown to the members of the arbitral tribunal, had tainted the process from the outset. Alastair’s article is also featured in the Tools of the Trade section of this e-periodical.
Uncle Oswald is back too. His friend, Fearless Frikkie, once again seeks Uncle Oswald’s indispensable advice on the issue of arrear levies in a sectional title scheme. Please get your questions ready for Uncle Oswald and send them to the Association’s general manager, Ms Rochelle Appleton at rochelle@arbitrators.co.za
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
[1] Attributed to the ancient Greek philosopher, Aristotle (384 – 322 BC). The quotation suggests that the concept of hope can be inspirational while we are awake, just as a dream can be while one sleeps.
[2] The co-hosts were: Advocates for Transformation (AFT); Allen & Overy; Bowmans; China-Africa Joint Arbitration Centre (CAJAC); CDH; General Council of the Bar of South Africa; Herbert Smith Freehills; KPMG, Pinsent Masons, Webber Wentzel and 39 Essex Chambers.
[3] [2023] EWCA Civ 1416.
[4] 2023 (4) SA 38 (SCA).