CONFERENCE COULD HELP SA CATCH UP WITH DISPUTE RESOLUTION PRACTICES IN THE REST OF THE WORLD

By John Brand Friday, June 23, 2017
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On 29 June, Johannesburg will become the 39th city around the world to host a session of the Global Pound Conference on dispute resolution. John Brand of pan-African law firm Bowmans (offices in Kenya, South Africa, Tanzania and Uganda) and director of Conflict Dynamics explains why the event has relevance for South African business.

While South Africa is recognised as a leader in using mediation and arbitration to resolve labour disputes, the country has fallen far behind the rest of the world in alternative dispute resolution for civil and commercial disputes. This gap is cause for concern among foreign investors. Already dubious about the protection of their rights after the South African government cancelled its bilateral investment treaties, foreign investors at the very least expect access to a credible, well-established mediation and arbitration dispensation that meets international standards.

Unfortunately, establishing such a framework has not been a priority for the Department of Justice and the Judiciary, which understandably have been preoccupied with other aspects of the transformation of the justice system.

The absence of a robust mediation and arbitration framework for civil and commercial disputes has been more of a concern in the private sector, but even there, few have been actively pushing to close the gap, which may have had its roots in the apartheid era when South Africa was politically and economically isolated.

Where South Africa has fallen behind

During the time that South Africa was isolated from the global trading table, the rest of the world took major strides in the use and formalisation of mediation, arbitration and similar mechanisms to resolve disputes of all kinds.

Prior to 1994, progressive unions and employers established a strong private employment mediation tradition through the Independent Mediation Service of South Africa (IMSSA) but this was not replicated in the broader civil and commercial sphere.

Post-1994, South Africa took large, swift leaps in labour dispute resolution, quickly mainstreaming arbitration and mediation mechanisms and infrastructure for resolving labour conflict. It is widely acknowledged internationally that our employment mediation and arbitration system is an example to follow.

In political conflict resolution, too, our skills are internationally known and respected, and South Africans have participated actively in peace processes in countries as far afield as Northern Ireland, the Basque County, Serbia and Bosnia-Herzegovina and the Democratic Republic of Congo.

In complete contrast is our stagnation as a country in the processes and systems for resolving civil and commercial disputes both inside and outside the courts. Here, South Africa continues to trail global developments - not to mention developments elsewhere on our own continent.

Other African countries are streets ahead

Nigeria, Namibia and Mauritius have well-established mediation and arbitration mechanisms, not only for domestic disputes but also for cross-border ones. They are ahead of South Africa, which is to their advantage in attracting the growing number of investors interested in doing transactions across borders. Mauritius, especially, is becoming a hub for cross-border transactions and has successfully established itself as an international arbitration centre.

It does not help our cause that dispute resolution through litigation is so expensive and time-consuming in South Africa, especially compared to other countries.  Here, it can take years to get a first hearing in the High Court. Other countries have overhauled their pre-action protocols and court proceedings but we have not followed world best practice in this regard.  Hence, litigation in our country remains costly, complex and protracted.

This regrettable state of affairs is bad news for everyone. Multinational companies take their investments elsewhere. Few medium and small businesses can afford the time and cost of taking their disputes to the courts. As for the ordinary South African on the street, access to justice is, in most cases, practically impossible.

The average citizen lacks the skills, knowledge and resources to seek redress for the many types of civil disputes that arise from day to day: neighbourhood and townhouse disputes, shoddy workmanship by service providers from panel beaters to dry cleaners, healthcare disputes, con artists preying on the poor or ill-informed, and the like.

In the labour arena, the CCMA provides a remarkable degree of access to justice for ordinary employees. The same cannot be said for the civil and commercial spheres of life in South Africa.

Light at tunnel’s end

Fortunately, there are some positive signs. 

For one, the South Africa Law Reform Commission has established a committee to consider the development of legislation that will promote the optimal use of alternative dispute resolution to provide access to justice. The committee will be holding its first meeting in July 2017.

Second, the Department of International Relations and Cooperation (DIRCO) is participating in the deliberations of the United Nations Commission on International Trade Law (UNCITRAL), which is seeking to formalise instruments for international cross-border mediation. The problem with this involvement, however, is that it is a case of trying to put the cart before the horse.  A country needs to have a proper domestic mediation system in place before it can effectively participate internationally and this is lacking in South Africa.

Also dabbling in cross-border dispute resolution is the Department of Trade and Industry (DTI), whose cancellation of South Africa’s bilateral treaties has provoked a negative reaction from foreign investors. Through the Promotion of Foreign Investment Bill, the DTI is trying to put in place mediation for party state disputes.   This is unlikely to succeed because if mediation fails, investors do not want to rely on local courts; they demand the international arbitration which has been removed in South Africa.

So the upcoming Johannesburg Global Pound Conference (GPC) is a serious effort to have a meaningful conversation on where South Africa stands on dispute resolution in the civil and commercial spheres - and where we should be heading.

Part of a local and global conversation

The Johannesburg GPC is being held at pan-African law firm Bowmans’ Johannesburg office, and is the penultimate conference in a series of 40-city conferences, all with the umbrella theme, “Shaping the future of dispute resolution and improving access to justice”. The chair of the local organising committee is Judge Sharise Weiner.

The GPC is intended for anyone with a stake in civil and commercial dispute resolution: individuals, business owners and executives, in-house counsel, lawyers in private practice, judges and court officials, conciliators, mediators, arbitrators, ombuds, academics, teachers in law and business schools, government officials, policymakers and NGOs.

The proceedings, spread across four sessions, will cover all the major focus points of dispute resolution, including litigation, arbitration, conciliation, mediation and hybrid models like ”arb/med”.

It will look at what stakeholders want and what role they are playing and could play in the delivery of access to justice in South Africa. It will also explore how users can access the most appropriate dispute mechanisms - meaning mechanisms that match users’ needs and are appropriate in terms of cost, time, intended outcome, enforceability and impact on the parties’ reputations and relationships, as well as social and cultural issues.

Far from being a one-way monologue by service providers, the Johannesburg GPC will be a platform for users to air their dispute resolution needs. In fact, the first session of the day deals with what parties want, need and expect from dispute resolution systems.

South Africa has a long way to go in bringing civil and commercial dispute resolution up to date with the rest of the world. The Johannesburg GPC could help steer the conversation in the right direction.

Details of the event, including the programme and speakers, are available on the conference website, The Johannesburg Global Pound Conference.