It may be mid-winter, yet our learned retired arbitrator remains high-spirited and warm as he keeps abreast of ADR case law in his suntrap of a study.  Uncle Oswald, content as only the wise are, is drinking in the sunshine and enjoying a steaming cup of Earl Grey, ready to answer your pressing questions.  Many years ago, when he did his articles with Hugo de Groot, Voet and Partners, he had the same ADR issues that you are faced with now.

Send your questions to our General Manager, Rochelle Appleton, at rochelle@arbitrators.co.za. She will gladly share your questions with Uncle Oswald and ensure you receive his sage advice on your arbitration queries.

On review, again

Best Uncle Oswald

I recently acted as arbitrator and once again published what I thought was a brilliant award, but the unsuccessful party took it on review to be set aside by the High Court under s 33 of the Arbitration Act, 42 of 1965.  This happens to most of my awards, so I am sort of used to it.  However, this time, the matter took an interesting turn.  The applicant in the review application made application under rule 53(1)(b) of the Uniform Rules of Court to compel me to disclose my handwritten notes as part of the record of the proceedings.  This makes me very uncomfortable.  My notes are replete with doodles that I made while my mind wandered during the course of the proceedings.  They also contain information of an embarrassingly personal nature, including my thoughts on the stenographer’s miniskirt and daily reminders to stop at Liquor City on my way home.  Can I be compelled to disclose my notes as part of the record of the proceedings?

Regards
Dick Dodger

Dear Dick

Of course, my awards have never been taken on review in my 53 years as arbitrator.  I am therefore by far not the best person to ask.  However, the editor of this periodical, Eric Dunn SC, appears to be quite knowledgeable on the subject.  Perhaps he has been under the review whip more often than he would care to admit.  He recently wrote an informative case summary of the judgment by Unterhalter J in Zamani.  You may have seen his case summary in the May 2020 edition of Arbitrarily Speaking under A Case in Point.  I can do no better than to invite you to read his case summary again.  The answer to your question will become apparent once you have carefully considered it again.  The following hyperlink will take you directly to the Zamani case summary referred to: [https://www.arbitrators.co.za/a-case-in-point-recent-case-reports-may-2020/]

The judgment in Zamani got me thinking.  In paragraph 37 of the judgment, the court found as follows:

The salient consideration is this.  The arbitrators (there were three of them in Zamani) are required to make an award.  In doing so arbitrators provide the reasons for their decision.  It is the reasons for their award that must survive scrutiny (in a review under s 33 of the Act).  What an arbitrator was thinking at a point in time when a note was made is not what matters.  What matters is what the award contains, and how the proceedings were conducted.  These are the matters relevant to the review grounds set out in s 33. (Emphasis added).

In paragraph 38 of the judgment, the court proceeded to point out that:

The arbitrators’ notes bear no such relationship to their award.  The award sets out the reasons.  The notes have no necessary relationship to the award.  A particular note may or may not be the provenance of some reasoning that is to be found in the award.  But where reasoning germinates (in notes or otherwise) and by what mental process an arbitrator comes to reason his or her award, may be matters of interest to legal philosophers or cognitive science, but provides no probative evidence that supports arbitration review.  (Emphasis added).

The court then concluded in paragraph 44 that an arbitrator’s notes do not form part of the record of proceedings (the Record) as envisaged in rule 53(1)(b) of the Uniform Rules of Court (the Rules) and that an arbitrator cannot be compelled under rule 53(1)(b) of the Rules to disclose his or her notes for purposes of an arbitration review under s 33 of the Arbitration Act, 42 of 1965 (the Act).

This conclusion, in my mind, gives rise to the following question: Should the Record for purposes of an arbitration review under s 33 of the Act ever be comprised of more than the arbitrator’s award? For purposes of this question, it necessarily must be assumed and accepted that the following items – of course only to the extent that they are relevant and necessary – inevitably will comprise part of the Record envisaged in rule 53(1)(b) of the Rules, namely: the parties’ respective pleadings, the transcript of the evidence presented at the arbitral hearing and any exhibits (documentary or otherwise) used in support thereof (collectively referred to as the Customary Record)?

I do not think so, and I suspect that the learned arbitrators who were under review in Zamani might agree with me.  That is, of course, provided that the award is properly written in the manner as prescribed in the Association’s award writing module 4A course.

Although I once thought that I was wrong, it subsequently turned out that that I was merely mistaken.  I do not think that I am mistaken in holding this view, and those who disagree with me could be wrong.  Therefore, Dick, I look forward to your comments on my view.  At the same time, I invite all of our esteemed readers, as well as the erudite editor, to let me have your comments on the question I have raised. Is my logic and my understanding of the consequences of Zamani correct, namely that the record of the proceedings, as envisaged in rule 53(1)(b), is limited to the arbitrator’s award and the Customary Record for purposes of an arbitration review under s 33 of the Act?

I look forward to hearing from all of you, and to publish some of your contributions.

All the best
Uncle Oswald

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