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Companies Act, 2008 (Act No. 71 of 2008)

Chapter 7 : Remedies and Enforcement

Part C : Voluntary resolution of disputes

166. Alternative dispute resolution

 

 

1) As an alternative to applying for relief to a court, or filing a complaint with the Commission in terms of Part D, a person who would be entitled to apply for relief, or file a complaint in terms of this Act, may refer a matter that could be the subject of such an application or complaint for resolution by mediation, conciliation or arbitration to—
b) an accredited entity, as defined in subsection (3); or
c) any other person.

 

2) If the Companies Tribunal, or an accredited entity, to whom a matter is referred for alternative dispute resolution concludes that either party to the conciliation, mediation or arbitration is not participating in that process in good faith, or that there is no reasonable probability of the parties resolving their dispute through that process, the Companies Tribunal or accredited entity must issue a certificate in the prescribed form stating that the process has failed.

 

3) In this section, ‘‘accredited entity’’ means—
a) a juristic person or an association of persons accredited by the Commission in terms of subsection (4); or
b) an organ of state, or entity established by or in terms of a public regulation that—
i) is mandated, among other things, to perform mediation, conciliation or arbitration; and
ii) has been designated by the Minister in terms of subsection (5) as an accredited entity for the purposes of this Part.

 

4) For the purposes of this Part, the Commission—
a) may accredit, with or without conditions, a juristic person or an association that—
i) functions predominantly to provide conciliation, mediation or arbitration services;
ii) has the demonstrated capacity to perform such services within the context of company law; and
iii) satisfies the prescribed requirements for accreditation;
b) must monitor the effectiveness of any accredited person or an association relative to the purposes and policies of this Act; and
c) may—
i) reasonably require any person or association accredited by it to provide information necessary for the purpose of monitoring in terms of paragraph (b); and
ii) with reasonable notice, withdraw any accreditation granted by it in terms of this section if the person or association no longer satisfies the criteria set out in paragraph (a).

 

5) The Minister, after consulting the Commission—
a) may designate any organ of state or other entity contemplated in subsection (3)(b) as an accredited entity for the purposes of this Part; and
b) must prescribe criteria for the Commission to follow in assessing whether an applicant for accreditation in terms of subsection (4) meets the requirements of this section.