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.
The Shadows of the Year that has Almost Been
Many readers of Arbitrarily Speaking! undoubtedly would have wondered what had happened to it during the course of this year? Regrettably, its non-appearance after 1 March 2022 was attributable to events mentioned in issue 13 of March 2022. I am grateful to my colleague and friend, Adv Cassie Badenhorst SC, for having stepped up to the challenge to take care of the publication of that issue. This year, no doubt, has been – and, in some respects, still is – my annus horribilis. However, the gift of a new year just lies around the corner.
The arrival of December prompts the realisation that the year has sped by phenomenally quickly. Commercial life is suddenly focussed on the festive season. Bright lights and decorations adorn the country’s shopping malls. The mood is supposed to be festive too. Holidaymakers will be flocking to the coast, or to some or other idyllic holiday destination, to enjoy the beauty the country has to offer for all that live in it.
In the meantime, the political and economic horizons are overshadowed by dark clouds. The ongoing corruption that besieges the country has gone unchecked for far too long. The real hope is that the Zondo Commission’s report, once fully implemented with, it must be said, the requisite political will, will auger for a better future. Let us hope that 2023 is the year in which this comes to fruition.
This issue of Arbitrarily Speaking! contains articles from two new contributors. They are, respectively, Mr Tom Mc Donald, and Adv Johan Moorcroft. Tom is an attorney of many years’ experience, especially (but not exclusively) in construction law and a Fellow of the Association. Johan is currently a door member of Group 21, Village Chambers, at the Johannesburg Bar and is also a Fellow of the Association.
Tom’s article considers the timing of a cancellation in terms of a lex commissoria clause and the affect which the issue of an intervening negative payment certificate (i.e., money certified as being due to employer) has on a vested right to cancel. Johan’s article covers an array of topics concerning the jurisdiction of arbitrators in a variety of different circumstances.
Our stalwart contributors, Mr Chris Binnington PR Eng and Adv Kiki Bailey SC, both Fellows of the Association and serving directors on its board, are also back with sterling contributions. In 2020 Chris suggested a mechanism to assist in the enforcement of an adjudicator’s decision by suspending arbitration proceedings until the adjudicator’s decision has been honoured by the losing party. Recently the Association was the principal sponsor of the JBCC’s 25th annual conference and gala dinner held at the Hilton Hotel in Sandton. In his address to the attendees at the gala dinner, Chris proposed that the JBCC should consider amending their suite of contracts to give effect to the mechanism described in the article. Not only has the JBCC received the suggestion enthusiastically, but members of the SAICE drafting team for GCC 2023, who were at this gala dinner, also expressed keen interest in the suggestion for the next iteration of the Blue Book for Civil Engineering. As the JBCC’s suite of contracts and the SAICE Blue Book are two of the dominant standard forms of contract in regular use in RSA, Chris’s suggestion of an effective contractual enforcement provision will, if adopted, be a positive contribution to the construction industry adjudication process. Chris’s article motivates why his suggestion is a good one justifying its incorporation into the latter standard forms of contract.
Uncle Oswald is back with a bang too. In his wisdom he proffers sage advice to Fearless Frikkie on the issue of on-demand guarantees. Uncle Oswald will again be eager to answer your questions and queries on arbitrations and ADR in 2023. 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 Kiki’s analysis and discussion of the Supreme Court of Appeal’s fairly recent judgment in Canton Trading 17 (Pty) Ltd t/a Cube Architects v Fanti Bekker Hattingh NO[1] in which that court was required to grapple with the question of which forum – i.e., the court or an arbitrator – has the jurisdiction and is better-suited to resolve a preliminary dispute concerning the validity and enforceability of an arbitration agreement.
Our winner of the great annual prize for the best yearly contribution(s) – comprising a choice of selecting one of two Mont Blanc™ fountain pens, viz., either a UNICEF 2017 Meisterstück Le Grande Platinum (with a blue sapphire stone) or a Bonheur Fountain Pen – is Ms Maritza Breitenbach for her contribution of four essays on the vital topic of ethics under the general rubric of a Practical application of ethics. Ms Breitenbach is a most worthy winner and while we congratulate her for this achievement, we simultaneously urge her to put her new pen to good use in crafting many more articles for this e-periodical.
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!
Editor
[1] 2022 (4) SA 420 (SCA).