UNCLE OSWALD’S Q&A FORUM – JUNE 2026
WHO TO BILL?
Dear Uncle Oswald,
I am a referral advocate and a member of the Johannesburg Bar. I was recently appointed by the Association of Arbitrators (Southern Africa) as arbitrator to determine a construction-related dispute in terms of the 2021 edition of the Association’s Standard Procedure Rules for the Conduct of Arbitrations.
Unlike in previous disputes where I’ve acted as arbitrator, the parties in this dispute are not represented by attorneys.
As a referral advocate, my conduct – also when acting as an arbitrator – is governed by the Legal Practice Council’s (LPC) Code of Conduct. On my understanding of the LPC Code, I am only allowed to receive instructions from, render fee accounts to, and receive payment from practising attorneys.
On the one hand, I would prefer not to decline my arbitral appointment on this basis but, on the other hand, I am not prepared to act in breach of the LPC Code.
I suspect that I am not the first referral advocate to encounter this situation.
Do you have any views on this?
Best regards,
Adv Ano Nymous
___________________________________________________________________________
Dear Ano,
You are indeed not the first referral advocate to encounter this situation.
As always, my advice is to start at the beginning and establish the precise origin and scope of the situation.
In this instance, I would propose a proper reading of the relevant paragraphs of the LPC Code:
- Paragraph 27.3 reads as follows:
“Counsel who act as arbitrators or umpires shall do so only on receipt of a brief from the parties’ attorneys, or on receipt of instructions from an arbitration body.”
(My emphasis)
- Paragraph 34.2 reads as follows:
“Counsel shall render accounts to the instructing attorney or arbitration body contemplated in paragraph 27.3 and shall receive payment only from the instructing attorney or arbitration body.”
(My emphasis)
Therefore, Ano, I am of the view that you are, as a referral advocate (or, counsel, as the LPC Code refers to it) expressly entitled to act as an arbitrator on the instructions (or, appointment, as the Association refers to it) of an arbitration body.
You are also, as a referral advocate, expressly entitled to render accounts to and receive payments from the arbitration body that instructed/appointed you.
The Association, established in 1979, is the oldest recognised arbitration body in Southern Africa. It was, for example, already officially recognised by the General Council of the Bar of South Africa (the GCB) almost 30 years ago for the exact same purposes now addressed in paragraphs 27.3 and 34.2 of the more recent LPC Code.
On my understanding, in practical terms, when a referral advocate is appointed by the Association as an arbitrator to determine a dispute between unrepresented parties, the following protocol would apply:
- The Association, at the request of the arbitrator, will open an escrow account under the Association’s reference number for the particular dispute.
- The Association, at the request of the arbitrator, will transmit invoices for the arbitrator’s initial fee deposit on a pro rata basis to the parties.
- The arbitrator will then, from time to time, render accounts for services rendered to the Association, and the Association will make payment to the arbitrator.
- If the fee deposit is depleted before completion of the arbitral proceedings, the process will be repeated.
On my understanding, this protocol would also apply when the Association appoints mediators and adjudicators. This all-inclusive alternative dispute resolution approach appears to be in line with the judgment in Murray & Roberts (Cape) v Upington Municipality 1984 (1) SA 571 (AD) in which the Appellate Division considered mediation and adjudication to be, in the context of a standard-form civil engineering contract, part of the process of arbitration. It also appears to be in line with the modern concept and terminology of alternative dispute resolution (ADR) which includes mediation, adjudication, and arbitration under the umbrella of what was previously, and often ignorantly, referred to only as arbitration.
Although not strictly relevant to your enquiry, I may add that the LPC has in principle approved the amendment the LPC Code to add “mediation bodies” to “arbitration bodies” for purposes of paragraphs 27.3 and 34.2 of the LPC Code. The LPC is at present considering comments submitted by interested parties in this regard. These proposed amendments have been necessitated by the recent Mandatory Mediation Directive and Protocol issued by the Gauteng Judge President. Time will tell what the outcome of the proposed amendment process will be, but I have reason to believe that it will only apply to mediation-only bodies, and that established arbitration bodies such as the Association and others will continue to perform their ADR (i.e. mediation, adjudication, and arbitration) functions under paragraphs 27.3 and 34.2 of the LPC Code.
To conclude, Ano, on my reading of the LPC Code and based on the information provided by you, you are entitled to accept your arbitral appointment from the Association, to request the Association first to open an escrow account for this dispute and second to send pro rata fee deposit invoices to the parties, to render your accounts to the Association, and to receive payments from the Association.
Best regards.
Uncle Oswald
We want to hear from you.
Have you got any questions, comments or feedback? Let us know and we’ll do our best to incorporate the best suggestions. Uncle Oswald is always up for questions.
Missed a Previous Arbitrarily Speaking Issue?
Catch up here.
