I greatly appreciate the opportunity to say a few words this evening. I want to touch upon one or two subjects that are close to my heart. I want to say something about the relationship between judges and arbitrators in South Africa and to add a comment or two on the broader question of arbitration in Africa.
I take it we can all agree with Lord Donaldson’s well-known description of arbitrators and judges as being partners in the business of dispensing justice, the judge in the public sector and the arbitrator in the private sector. It is not inappropriate, therefore, to ask how well has each partner been behaving towards the other here in South Africa?
I am going to start with the Courts. Our law reports go back more than 150 years and throughout that time whether we are dealing with the colonial courts or the early independent Republics or whether we look at the period of Union or the last 30 years of our constitutional democracy the answer is always substantially the same. The courts have lent support to arbitration; have respected party autonomy and have insisted on fair process and a rational outcome.
The kind of arbitration cases that have ended up in the South African courts have of course changed with the times but the applicable legal standards have remained constant. Our courts no longer hear cases about transport contractors who hired out ox wagons and stole each other’s oxen but they do continue to examine arbitration clauses to see whether they cover the dispute in question. Nor are our courts bothered any longer by the intricacies of the building of forts to protect Pretoria but they continue to investigate whether an irregularity occurred in the arbitration proceedings and, if so, whether it was sufficiently material to set aside the award.
You will bear in mind that the relationship between the judges and the arbitrators in South Africa was never codified and that the colonial arbitration legislation and subsequent legislation did no more than provide a very broad framework. Our arbitration law is, more than anything else, the work of our judges over the generations applying the local amalgam of English and Roman Dutch principles and more recently the overarching values and standards of our constitutional dispensation.
As to the latter you need look no further than to the ringing endorsement of the aims and objectives of both domestic and international arbitration to be found in the decision of the Constitutional Court in the Lufuno Mphaphuli case of 2009 and the many cases since then. Indeed in one instance one of our courts, the Supreme Court of Appeal, may even have gone a little too far in seeking to sell South Africa as an international seat – the relevant paragraph reads:
“The South African courts not only have a legal duty but also a socio-economic and political duty to encourage the selection of South Africa as a venue for international arbitrations. International arbitrations in South Africa will not only foster our comity among the Nations of the world, as well as international trade but also bring about the influx of foreign spending to our country.”
In any event the court’s heart was in the right place. What of the criticisms of the court in its role as partner? Well, a complaint often heard is that the courts take too long to deal with reviews of arbitration awards and in enforcing them. That, of course, results from an overlarge caseload on an understaffed judiciary. Nonetheless I think you will find that our judges president are cooperative in trying to expedite cases of this sort and institutions like AFSA and the Law Societies should not hesitate to raise these concerns with them. Indeed I understand that that is what has happened in Johannesburg resulting in a marked improvement.
It is also said that our judges may need more exposure to international arbitration practice and norms but, I think, there is less force in that point. If you look at cases such as the Telkom case in the Supreme Court of Appeal and the Mphaphuli case in the Constitutional Court you will find, I believe, ample evidence of high quality familiarity with the intricacies of international commercial arbitration. The sad truth, I think, is that an isolated judgment of poor standard attracts disproportionate attention and misplaced generalized negativity.
What then of our arbitrators? What kind of partners have they turned out to be? Well, I think on balance, rather good. The arbitrators in South Africa have pioneered procedural improvements in the techniques of dispute resolution and the courts have benefited by adapting and adopting those improvements. So for example the technique of constantly monitoring and managing arbitration procedures via pre-arbitration meetings has influenced the introduction of case management meetings in the High Court. Furthermore and more generally I want to say that experience gleaned as an arbitrator pays dividends for us when the practitioner becomes a judge and that is a major contribution to the strength of the judiciary.
On the negative side I think our arbitration institutions should be doing more to open the way for young practitioners to gain experience in arbitration practice. There should be a clear well-defined path for the young practitioner to follow. I know that AFSA has started a program which gives young practitioners an opportunity to serve as confidential clerks in arbitration proceedings and that is a good start but it is not enough. I welcome the establishment of YOUNGAFSA and I look to YOUNG-AFSA to bring young practitioners together, and to find the ways and means to smooth the path towards full participation in the practice of arbitration.
In the first place I have in mind our indigenous systems of dispute resolution and in particular the traditions of the Kgotla which has played and continues to play so important a part in resolving disputes in our rural communities in South Africa and Botswana and elsewhere in Southern Africa. What marks the Kgotla system is the respect for basic human values for sociability and inclusiveness for restorative justice, reconciliation and peace building. It is a system which promotes negotiated settlement and aims to reconcile parties in conflict. In the processes of the Kgotla you will find the readiness to seek a mediated outcome; the emphasis on a fair and inclusive process and the concern that the loser should understand the reasons why he has lost. In the Kgotla you will find the virtues of mutual respect and natural justice and human dignity which now feature in our Bill of Rights and which also finds expression in the concept of Ubuntu.
I am worried that we are not giving proper weight to the contribution which the Kgotla system can make to our jurisprudence. We must preserve and nourish the wisdom that we find in the Kgotla system and see it, as we should, as an integral indigenous strand in the tapestry of our dispute resolution.
Secondly, in this context, I would like also to mention the part played in the labour sector.
During the apartheid years our nascent trade unions avoided the courts when they had to find some mechanism to resolve their disputes. They chose to use arbitration and it is no surprise that arbitration processes in one form or another remains so prominent in the resolution of labour disputes. In my day the Independent Mediation Services of South Africa (IMMSA) was a much-used vehicle for resolving labour disputes and I must say I learnt a great deal from acting as a mediator and arbitrator in that kind of dispute. The hallmark of labour arbitration has been its simplicity of process, its focus on practical time-saving procedures and a fair expedited resolution. It is another strand which needs to be when we look at the full vista of our arbitration jurisprudence.
Thirdly and more generally, arbitration was always the preferred choice of the marginalised sections of our population. We have a long history of the use of arbitration by those who could not or would not submit their disputes to the courts. Many of you, I am sure, will have read something about the experiences of a young Indian lawyer practising in Pretoria in the early years of the last century. He speaks of his experience as an arbitrator and of the excitement and indeed the joy he felt when bringing parties together by way of conciliation and the peaceful resolution of disputes. Of course history knows him today as Mahatma Gandhi and we should not forget that some part of his legacy took seed from his involvement in arbitration in this country.
So, yes, arbitration in this country has been shaped and strengthened by a rich and varied jurisprudential tapestry, one in which empathy and respect also finds a proper place and expression in the form of Ubuntu.
I understand that yesterday the Law Societies of a large number of SADC countries committed themselves to a shared arbitral Charter and I think that is a wonderful development and one that will continue to reflect our shared African arbitration culture which I have tried to describe. Let the region take its place, its rightful place, in the practice of international arbitration to the benefit of trade and industry and therefore to the benefit of all the peoples of Southern Africa.
Thank you.
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