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.

Changing Tides And Ever Changing Times[1]

While walking on one of the pristine beaches in the popular coastal town of Hermanus late one Saturday afternoon, about two weeks ago, I observed the shimmering patterns of the film of water fleetingly sketched on the drenched sand by the receding tide, beautifully enhanced by the dying rays of the sun.  This immediately set me thinking about how everything changes around us all of the time, from one week to the next, from one season to another, from year to year.

Just the other day, indeed t’was in the previous edition of this e-periodical (although it really feels like it was only yesterday), I wrote about the official arrival of Spring in the Southern Hemisphere.  Yet here we are, a mere two months later, with Summer’s grip firmly now on us.  The festive season and the long South African summer vacation beckon to us from beyond the corner.  The municipal elections, with a record yield of municipalities with hung municipal councils, are already resigned to history, save for those politicians currently negotiating and forming coalition led councils.  The immediacy of the moment signifies that the United Nation’s Twenty-Sixth Conference of the Parties[2] (COP 26) in Glasgow, Scotland, has produced, at least according to some observers, something of a questionable product for achieving the objective of limiting temperature rises to 1.5°C for the Earth’s and mankind’s future survival.  Nonetheless, we are encouraged by the United States’ Climate Envoy, John Kerry, who reportedly hailed the agreement achieved at COP 26 as a ‘good deal‘ even though last-minute changes let major coal users, such as China, India – and no doubt South Africa too – off the hook for reigning in their emissions.  Events come and go, like the high and low tides we encounter in every twenty-four hour cycle of our lives.  And we carry on marching – ever resilient, ever hopeful.

In the previous edition we announced that we intend publishing a series of articles on the topic of Artificial Intelligence (AI) and its various uses to arbitrators in future editions.  In the February 2022 edition of Arbitrarily Speaking! one of the country’s foremost experts on the topic, founder and CEO of DocInsights, Mr Dries Cronje, contributes his first article – in a four-part series – on this fascinating topic in the realm of alternative dispute resolution (ADR).  Having been given a preview of Mr Cronje’s first article, I know that our members and readers will be engrossed by the series on AI that he is going to contribute for publication.

We are deeply saddened by the sudden passing of Mr Barry Michael Jammy, an Honorary Life Fellow of the Association, on 11 November 2021.  In the section ‘In Memoriam’ Mr Chris Binnington, an Association Fellow and director, pays tribute to this most distinguished of gentleman in a fitting obituary.

Africa’s largest law firm, ENS Africa, kindly has granted us permission to publish its booklet (ENS Booklet) on Construction Insurance topics with reference to judicial decisions made in 2019 and 2020.  The ENS Booklet comprises five selected topics.  The authors of the ENS Booklet[3] provide their expert analysis and incisive commentary in respect of each one the selected topics.  We will publish the introduction and the first topic of the ENS Booklet, entitled ‘Part One | The status of interim payment certificates on cancellation of a construction contract and implications for construction guarantees and guarantee insurers’ in this edition of Arbitrarily Speaking!  The remaining four topics will be published in future editions of the e-periodical. However, the  ENS Booklet in its original format can also be

accessed via the following link to ENS’s webpage: https://www.ensafrica.com/uploads/newsarticles/0_ensafrica%20insurance%20newsletter%20final.pdf
We sincerely appreciate ENS Africa’s, Mr Rob Scott’s and Ms Zara Sher’s permission to publish the ENS Booklet in this e-periodical.

The Tools of the Trade section in this edition of Arbitrarily Speaking! contains the last of Ms Maritza Breitenbach’s essays on Ethics.  Her last article is titled ‘Code of Ethics: Practical Application: Justice’.  She examines the complex and elusive concept of justice and the role it could play, or ought to play, in our lives and professions.  When legal rights are at odds with fairness, it creates a gap between law and justice and Ms Breitenbach offers some insights as to how this gap can be closed, or then, at least, possibly narrowed.  I express my sincere gratitude to Ms Breitenbach for her industry and intellectual prowess in producing these articles for the e-periodical.  We trust that she will keep her pen at the ready for another stimulating series soon.

Ms Breitenbach  also becomes our first back-to-back winner of a case (consisting of 6 x 750ml bottles) of Steenberg’s[4] highly acclaimed Steenberg 1682 Chardonnay Cap Classique NV.[5]  She achieves this accolade for her article, titled ‘ Code of Ethics Practical Application: Fortitude (Essay 3 Of 4)’ published in the October 2021 e-periodical issue 11.  Congratulations, Ms Breitenbach, may the golden liquid bubbles continue inspiring you.

Our one stalwart contributor, Adv Kiki Bailey SC , in another of her illuminating contributions to the Tools of the Trade section, explores the question of whether an adjudicator has the jurisdictional power to award costs in a determination.  She does so in the context of a recent judgment by the Western Cape Division of the High Court in the matter of Tempani Construction (Pty) Ltd v The City of  Cape Town.[6]

In his Q&A Forum,  Uncle Oswald, quite unlike his usual self, laments his affliction with ‘two-type tiredness’ after a challenging year; and then goes on to declare, no doubt after a wee dram (or two, so he says) and wee bit of pressure from his intrepid friends and fellow travellers, Fearless Frikkie and Sam Shabangu, 2021 officially closed for all business.  Despite his rather severe affliction, he has somehow still managed to summon enough energy to provide his readers with a list of all the letters he has written, over a vast range of topics covered, during the past two years.  The topics so covered can be accessed via the hyperlink attached to each letter.  No doubt, with his energy renewed after a long summer holiday, Uncle Oswald will again be eager to answer your questions and queries on arbitrations and ADR in 2022.  In the meanwhile please get your questions ready and send them 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 – under the caption ‘Sequel to Enforceability of Adjudicators’ Decisions’ – an analysis and summary that Association Fellow and director, Mr Alastair Hay, prepared on a recent judgment of the Supreme Court of Appeal in Framatome v Eskom Holdings SOC Ltd (357/2021) [2021] ZASCA 132 (1 October 2021), which resulted in an earlier judgment given in the same matter[7] by the High Court, Gauteng Division, Johannesburg, being overturned.

In the AoA’s Breaking News section we invite our members’ and readers’ attention to a new set of Rules for the Conduct of Arbitrations (2021 edition) (the 2021 Rules), adopted by the Association’s board of directors at its last meeting on 14 October 2021.  The 2021 Rules did not just appear automatically at the push of button, but was preceded by the difficult task of drafting by the AoA’s Rules Committee, comprised of the Association’s chairperson, Adv Pierre Rossouw SC, its vice-chairperson, Adv Tjaart van der Walt SC, Professor David Butler, and the chairperson of the committee, Mr Chris Binnington, Pr Eng.  At the forefront of the work in drafting the 2021-Rules was the doyen of arbitration law in South Africa, Prof Butler, a longstanding Fellow and friend of the Association.  Chris Binnington recently hosted Prof Butler at a very enjoyable lunch at the Rust en Vrede wine estate near Stellenbosch.  Chris writes about the time they spent together on this occasion.  Also included in this section, is Prof Butler’s introduction to the Association’s 2021-Rules.

Members are reminded once again that the purpose of these e-periodicals is to serve their professional interests.  As such, the publication will benefit commensurately from members’ contributions.  We therefore encourage all members to share their knowledge, skill and experiences of their specific disciplines, as well as their knowledge of and involvement in ADR.  This also serves as a reminder to our 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 the future editions of Arbitrarily Speaking!  In addition, 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 similarly offers the Association’s members and the readers of Arbitrarily Speaking! a special 15% discount on certain items, including jewellery, watches and pens.

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


[1]     Inspired by the lyrics of Ms Aretha Franklin’s song ‘Ever Changing Times’, written by Carole Bayer Sager, Bill Conti & Burt Bacharach, and released in 1991.
[2]   ‘Parties’ here refers to the one hundred and ninety-seven (197) nations who are members of the United Nations Framework Convention on Climate Change.
[3]     Mr Rob Scott, an executive in ENS Africa’s dispute resolution department and head of the firm’s insurance practice group, and Ms Zara Sher, a senior associate in the same department and practice group, as well as, in respect of three of the topics, Ms Zoë Wein, an associate in that department and group.
[4]      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 that inspires wines with a strong sense of place and which encapsulates the heritage of Steenberg.
[5]       Steenberg Farms has also generously undertaken to offer the Association’s members, as well as the readers of this e-periodical, a 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.dropbox.com/s/1441k40bmgx6fug/Steenberg The Black Swan Sauvignon Blanc %282%29.jpg?dl=0).  This offer is valid until 31 December 2021, and it entitles members and readers to free delivery within South Africa on any such online orders.
[6]       Case No. 21288/2018 and Case No. 12918/2019, 2 November 2020.
[7]       Framatome v Eskom Holdings SOC Ltd, Case No 43535/2019.

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