FROM THE EDITOR’S PEN – SEPTEMBER 2020
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 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.
REFLECTING ON CONFIDENTIALITY
September 2020 marks the advent of springtime. This signifies, as it does every year, the promise of new life and renewed hope. But this is unlikely to apply to the virtual milieu in which we are required to conduct much of our professional lives. Despite the further relaxation of the COVID-19 lockdown measures, some of the precautions taken to safeguard our collective health and safety are taking on a permanence that proffers opportunity and peril in equal measure. The incorporation of our professional activities into our domestic environments – and with it the unprecedented increase in the use of digital, online platforms to facilitate the virtual communication and connection we now so heavily rely on – increases our accountability to maintain confidentiality more than ever before.
Accountability in the ‘Oxford sense’ – ‘[i]t is a secret in the Oxford sense: you may tell it to only one person at a time’[1] – simply will not do for any member of the Association.
At its recent 40th Annual General Meeting (AGM) held on Thursday, 13 August 2020, via the Zoom videoconferencing platform, the members in attendance voted to adopt a Code of Ethics (Ethics Code) that is applicable to all members of the Association acting as arbitrators, adjudicators, mediators, adjudicators and referees (collectively defined therein as Arbitrators).[2] At its core, the Ethics Code stipulates accepted standards of ethical conduct for the guidance of arbitrators with the objective of promoting high standards and continued confidence in the process of alternative dispute resolution.[3] Rule 16 [Confidentiality] thereof provides as follows:
‘An arbitrator shall not during or after conclusion of the dispute resolution process disclose or use any information acquired in the course of the proceedings, save by agreement between the parties or when under legal obligation to do so.’
To those of the Association’s members who are lawyers, all of this should sound very familiar, but, in these changing times, there are good reasons for exercising additional caution. The ‘Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities’ (Conduct Code)[4] enjoins legal practitioners to, among other obligations, ‘… scrupulously preserve the personal and confidential information of a client communicated to him or her, unless the information is not privileged and disclosure is required by law.’[5]
One of the reasons for such additional caution arises from the new normal that we have embraced due to the ongoing COVID-19 pandemic. Many professionals are working from their home offices; and it seems as if this trend is likely to continue in this country and elsewhere, despite the further relaxation of the lockdown measures. In a domestic working environment family members, visitors, tradespersons and others may wittingly or unwittingly come into contact with and discover confidential information about clients, their business interests and information obtained through and from arbitral proceedings. The same applies to the use of the videoconferencing software platforms[6] that have increasingly become a huge part of our daily lives. The unprecedented increase in the use of these platforms in other than formal business environments, where high-level Internet security should be in place, or should reasonably be expected to be in place, and where the effectiveness and safety thereof is or should be verifiable, nothing less will do in the home office environment, including the use of an appropriate firewall.[7] In addition, special care must be adopted at the commencement of any videoconference, irrespective of the type of platform to be employed. Hosts of such videoconferencing calls have to be especially aware of unknown or unannounced participants who happen to be in the virtual room. Some videoconferencing platforms enable the host to lock or control the videoconference after the call has started, but if the platform does not have such a controlling facility, it is vital and incumbent on the host of the conference to ensure that no unannounced participant(s) or unintended persons are connected to the call or have access to the audible communications intended to take place over the call and in the virtual room. Imperative first steps in this direction would be for the host of the videoconference call to ensure that access to the virtual room can only be obtained through a uniquely generated password for each of the participants and also by insisting that each person in the virtual room should identify himself/herself. But is this enough to ensure that the confidentiality of parties to arbitral/adjudicative proceedings is properly preserved? Members who are knowledgeable about this topic and of the attendant risks that might arise in this context are invited to share their views with us on this important issue. Please address your correspondence to our General Manager, Rochelle Appleton, at rochelle@arbitrators.co.za.
One of the attendees at the Association’s 40th AGM enquired about an appropriate protocol for conducting arbitrations and adjudications. As the Association’s chairperson explained on the occasion, there cannot be any standard protocol intended for general use on every occasion. Arbitrators and adjudicators have to use their discretion appropriately in each and every instance.[8] Existing protocols[9] cannot fetter the discretion arbitrators/adjudicators are required to exercise in any way, but they might provide useful guidelines to arbitrators/adjudicators for the different challenges they could encounter and have to deal with in any envisaged proceedings. Further documents offering meaningful guidelines that could be consulted are: (i) The Chartered Institute of Arbitrators’ ‘Guidance Note on Remote Dispute Resolution Proceeding’;[10] (ii) The Vienna International Arbitral Centre’s ‘The Vienna Protocol: A Practical Checklist for Remote Hearings (June 2020)’;[11] and (iii) The ‘Seoul Protocol on Video Conferencing in International Arbitration’.[12] Others can easily be accessed too.[13]
In the Tools of Trade section of this edition of Arbitrarily Speaking! we again have the pleasure in bringing to you another of Ms Maritza Breitenbach’s enlightening essays devoted to the methods of logical reasoning and critical thinking. On this occasion, in her third essay, she warns readers of the fallacies that are committed when the fundamental principles – relative to the logical structure and the truth of the supporting premises of arguments – the focal points of her second essay (‘The Construction of an Argument’ – July 2020 e-periodical issue 4) – are not adhered to. Ms Breitenbach equips us with the knowledge to identify such fallacies and how best to avoid them – all with the objective of enhancing our readers’ skills in constructing valid and sound arguments, as well as ones that are strong and cogent.Uncle Oswald’s encyclopaedic legal knowledge is again on display in the popular Q&A Forum. This time he provides an avid reader of this e-periodical, Fearless Frikkie, with sound advice about the rule in Hollington v F Hewthorne & Co [1943] 2 ALL ER 35 concerning the findings and decisions arrived at by a court in earlier legal proceedings and which Frikkie intends using in later proceedings. Uncle Oswald further responds to advice seemingly proffered to him by an anonymous reader about the Zamani case, [14] which I analysed in the column, A Case in Point: Recent Case Reports, in the May 2020 e-periodical issue 3, and which Uncle Oswald referred to in answering Dick Dodger’s question in his Q&A Forum in the July 2020 e-periodical issue 4.
Under the section Arbitration Education Station, Mr Barry Jammy, an Honorary Life Member of the Association reminds readers – with refence to an extract taken from introduction to the ‘2007 Directory and Profiles of Fellow Members’, written by the late Eyvind Finsen, a founder of the Association – of the value and importance the Association has historically attached to the education of its members. We appreciate this historical perspective of an activity the Association holds dear and vigorously pursues to this day.
Our regular feature column, A Case in Point: Recent Case Reports, contains an analysis and summary of two important cases for the construction industry. The first is the Supreme Court of Appeal’s recent judgment relative to adjudications[15] that is provided by Association Fellow, Adv Kiki Bailey SC. The second analysis is provided by a regular contributor to this e-periodical, Mr Alistair Hay, a director and long-standing member of the Association, in which he analyses a case[16] in which the Construction Industry Development Board (CIDB), established in terms of the Construction Industry Development Board Act, No. 38 of 2000, woefully failed to follow the correct procedures in carrying out an investigation against a renegade contractor and the dire consequences arising from its failure(s) in relation thereto.
As the Association’s chairperson, Adv Pierre Rossouw SC, remarked at the opening of the 40th AGM, the Association and its members were saddened to learn of the passing of an Honorary Life Member and friend of the Association, Judge Ralph Zulman. We appreciate the contribution provided by Judge (Ret.) Percy Blieden, a former colleague both at the Bar and on the Bench, in which he reminisces about some aspects of the life of late Judge Zulman, including his frankness, while paying tribute this jurist, who left an indelible mark on the Johannesburg Bar and on the South African legal profession as a whole.
Members are reminded that the purpose of this e-periodical is intended to serve their interests. As such, it necessarily will benefit from their contributions and members are therefore encouraged to share their knowledge, skill and experiences of their specific disciplines, as well as their knowledge of and involvement in alternative dispute resolution.
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!
Eric Dunn SC
Editor[17]
[1] Lord Franks (1905-1992) English academic, diplomat and philosopher.
[2] Ethics Code: Rule 2.
[3] Ibid., Rules 3 and 4.
[4] Published in Government Notice (GN) No. 168 of 29 March 2019 in Government Gazette (GG) No. 42337 of that date in terms of section 36 (1) of the Legal Practice Act, No. 28 of 2014 (LPA), and subsequently amended by GN No. 198 in GG No. 42364 of 29 March 2019.
[5] Rule 57.2 [Disclosures and non-disclosures by legal practitioner] in Part VI [‘Conduct of Legal Practitioners and Candidate Legal Practitioners in Relation to Appearances in Court and before Tribunals’] of the Conduct Code.
[6] Such as Zoom, Microsoft Teams and Cisco’s Webex.
[7] A firewall is software used to maintain the security of a private network by typically establishing a barrier between a trusted internal network and untrusted external network, such as the Internet (https://en.wikipedia.org/wiki/Firewall_(computing) (Visited 23 August 2020).
[8] Article 17.1 of the Association’s Rules for the Conduct of Arbitrations: 2018 Edition (1 January 2018) provides: ‘Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at an appropriate stage of the proceedings each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties’ dispute.’
[9] References to websites where such protocols could be accessed have been provided in earlier editions of this periodical.
[10] https://www.viac.eu/images/COVID19/CIArb_remote-hearings-guidance-note.pdf (Visited 24 August 2020).
[11] https://www.viac.eu/images/documents/The_Vienna_Protocol_A_Practical_Checklist_for_Remote Hearings FINAL (Visited 24 August 2020).
[12] https://www.viac.eu/images/COVID19/Seoul_Protocol_on_Video_Conferencing_in_International Arbitration.pdf (Visited 24 August 2020).
[13] See Delos Dispute Resolution’s ‘Resources on Holding Remote or Virtual Arbitration and Mediation Hearings’ (Version of 25 July 2020) – https://delosdr.org/index.php/2020/05/12/resources-on-virtual-hearings/ (Visited 24 August 2020).
[14] Zamani Marketing and Management Consultants Proprietary Limited and Another v HCI Invest 15 Holdco Proprietary Limited and Others (32026/2019) [2020] ZAGPJH 5 (11 February 2020).
[15] Ekurhuleni West College v Segal and Another (1287/2018) [2020] ZASCA 32 (2 April 2020).
[16] Zikhulise Cleaning Maintenance and Transport CC v The Chairman of the Investigating Committee of the Construction Industry Development Board [2010] ZASCA 181 (2 December 2019).
[17] 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 Maisels Group of Advocates, Sandton.