FROM THE EDITOR’S PEN – MAY 2020
THE IMPORTANCE OF CRITICAL THINKING IN TIMES OF CRISIS …
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.
The publication of this edition of Arbitrarily Speaking in May 2020 takes place in an unprecedented global setting caused by the outbreak of coronavirus disease 2019 (COVID-19).[1] Who would have predicated at the beginning of 2020, which is a mere five months young, that the entire world would be facing one of its biggest challenges yet?
This is then the backdrop against which the current edition of Arbitrarily Speaking appears. Far too little is known about COVID-19 at this stage. The situation around it is dynamic and is still rapidly evolving. It is not possible to predict with any degree of confidence how it will affect the Association, and more specifically its members, in the near, medium-, or long-term future.
What we do know, is that we are in this crisis together. Whatever the future holds, a Swahili proverb, testifying to the unbreakable spirit of the human condition, says: ‘Standing is still going’.[2]
So, irrespective of whether or not we might have felt as though we were marking time for a while, our attitude in this extraordinary time will determine whether we are to emerge from this crisis as stronger individuals. The words of Viktor Frankl (26 March 1905 – 2 September 1997)[3] inevitably spring to mind:[4] ‘… everything can be taken from a man but one thing: the last of the human freedoms — to choose one’s attitude in any given set of circumstances, to choose one’s own way’. (Emphasis added).
To do so, we need to adapt to circumstances as they continue unfolding, but we need to do so in a manner that is both appropriate to and relevant in such circumstances. The Association has endorsed the use of compatible software platforms to conduct remote hearings, whenever this is possible and practical to implement. This is one step in the right direction.[5] Members might also want to consider the content of an article in the Harvard Business Review (HBR), titled ‘Guide to leading your business through the coronavirus crisis’ by Martin Reeves, Nikolaus Lang and Philipp Carlsson-Szlezak,[6] in which the authors outline various valuable lessons for responding to unfolding events, extracting the knowledge acquired from them, and communicating this knowledge. Among the lessons referred to, the authors advise that, as readers/listeners/viewers absorb the latest news, they ought to think critically about the source of the information provided before acting on it and, also, that they must not assume that information per se means that they are ‘informed’, or – as the authors choose to put it – that it necessarily implies ‘informedness’. In all circumstances, as the future unfolds, the Association will endeavour to keep its members properly informed about best practices that may be pursued in dealing with all forms of alternative dispute resolution.
In the previous edition of Arbitrarily Speaking, I indicated that this edition, as well as the next three, would focus on the imperative of critical thinking. This will take place through a series of essays addressing 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 the Tools of the Trade section of this edition of the periodical, the first of this series appears, titled ‘The Elements of Logical Reasoning’, in which the multi-talented author, Ms Maritza Breitenbach,[7] introduces our readers to the first precepts of logical thinking, namely the most relevant terminology and expressions used in this discipline, so that our readership is able to understand and fully appreciate just how important critical thought really is in the field of alternative dispute resolution.
The Tools of the Trade section contains a double feature this time. Apart from Ms Breitenbach’s insights into logical thinking, the Association’s chairperson, Adv Pierre Rossouw, SC, has also contributed an article in which he carefully surveys the most important legal principles concerning – and before he proffers his erudite answer to – the following question: ‘May an Arbitrator use his or her own Knowledge and/or Expertise to Decide a Matter?’
Uncle Oswald’s Q&A Forum has once again proven to be the most popular feature in the e-periodical. The Association’s publishers, the et al Group, have again commented on the remarkably high levels of open and click through rates by our readers, and how these rates continue to outstrip industry standards by far. The popularity of Uncle Oswald is confirmed by this data. In the current edition, the Association’s resident know-it-all retired arbitrator, explains to an avid reader, Hesitant Harry, why absolution from the instance cannot be granted in arbitral proceedings. Uncle Oswald has a further offering for both experienced and novice arbitrators – a pro forma agenda for a pre-arbitration meeting that he developed over years of practice – which will assist them in ensuring that the arbitral proceedings they are engaged to preside over will conform with relevant statutory and common law principles. The benefit of obtaining guidance from Uncle Oswald’s pro forma agenda is self-evident, but it must be emphasised that this document is merely a guide, and that it obviously has to be appropriately adapted to the particular circumstances of each case.
In our regular feature column, A Case in Point: Recent Case Reports, an analysis and summary of Zamani Marketing and Management Consultants Proprietary Limited and Another v HCI Invest 15 Holdco Proprietary Limited and Others (32026/2019) [2020] ZAGPJHC 5 (11 February 2020) is provided by our editor.
We appeal for your contributions to this latter column, 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[8]
On 30 January 2020, the World Health Organisation declared the outbreak of COVID-19 to be a Public Health Emergency of International Concern (https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov)) and, subsequently, on 11 March 2020, it recognised this outbreak as a pandemic (https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020).
Gerd de Ley, The Book of African Proverbs, Hatherleigh Press (2019), USA, at p. 7.
Viktor Emil Frankl (Frankl), an Austrian neurologist and psychiatrist, as well as a Holocaust survivor. Frankl was a professor in these two disciplines at the University of Vienna Medical School until his death in 1997. Frankl was a prodigious thinker and the founder of the ‘school of logotherapy’, what later came to be known and called the ‘Third Viennese school of Psychotherapy’ (after Sigmund Freud’s psychoanalysis and Alfred Adler’s theory of individual psychology aimed at validating the individual and enhancing his/her personal significance).
Viktor Emil Frankl (Frankl), Man’s Search for Meaning, Rider (2008) in Part One ‘Experiences in a Concentration Camp’ (translated by Ilse Lasch), at p. 75.
In the United Kingdom, English courts and tribunals have long had the power to hold hearings remotely, including by video conference. 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).
https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-hearings.Protocol.
Among her many diverse talents Ms Breitenbach is an author, entrepreneur, and an accomplished sculptor. As an artist (https://art.maritzabreitenbach.com/) she has exhibited her works both locally and in the Cite des Arts, Paris (2017).
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.