Mediation v Arbitration: What Is the Difference? PART 1
A common trend in commercial contracts is the inclusion of a mediation and/or arbitration clause. As a general point of departure, these clauses require the parties to the contract to refer any dispute arising from the contract to mediation as a first step. Should the mediation process be unsuccessful, these clauses then require that the […]
Neighbourly Disputes: Legal Solutions in South Africa
Disputes with neighbours can be challenging, often requiring tactful and legal approaches to resolve them effectively. In South Africa, these disputes can range from noise complaints to boundary issues. Understanding the legal avenues available can help in resolving these matters amicably and lawfully. Here, we explore three common scenarios and their legal resolutions. Scenario 1: […]
How a Latin Phrase Affected a Recent Property Dispute Case
In essence, the Latin phrase nec vi, nec clam, nec precario translates to “without force, without secrecy, and without permission”. According to the Prescription Act, a person can become the owner of property through prescription if they have possessed it openly as the owner for an uninterrupted period of 30 years, or for a period […]
Fraud: Remedies available to defrauded parties
Fraud can be defined as the unlawful and intentional making of a representation that causes actual or potential prejudice to another. Parties often act on the strength of another’s representation in order to commit some or other act. Such an innocent party may have acted to their detriment if the representation was fraudulent. The innocent […]
Arbitration as a method of dispute resolution – Part 2
There are different forms of arbitration. PAA Ramsden enunciates there being consensual arbitration, statutory arbitration (such as the Labour Relations Act 66 of 1995), court-directed arbitration, ad hoc arbitration, institutional arbitration, documents-only arbitration, fast-track arbitration, ex parte arbitration, and multi-party arbitration. All these different forms, according to arbitration proponents, have their own advantages, especially when compared to litigation. In general, these advantages are: Speed/Saving Time Arbitration is usually quicker in bringing resolution to a dispute than litigation. The primary factors, in this case, being lengthy delays […]
Arbitration series – Part one: What is arbitration?
Arbitration is one of a few dispute resolution mechanisms which include conciliation (negotiation), mediation, and litigation. It is regulated by the Arbitration Act 47 of 1965 (“the Act”) as amended. The Act does not provide for a definition of arbitration. Butler and Finsen in their book, Arbitration in South Africa Law and Practice, provide the following definition of arbitration, stating that, “[a]rbitration is a procedure whereby the […]