LPC Practical Vocational Training Guide: LPC Guide for Alternative Dispute Resolution (Regulation 6(10)(h)) - LPC Guide for Alternative Dispute Resolution (Regulation 6(10)(h))

Legal Practice Act — LPC Practical Vocational Training Guide: LPC Guide for Alternative Dispute Resolution (Regulation 6(10)(h)) (source: https://lpc.org.za/wp-content/uploads/2026/03/h-LPC-Guide-for-ADR-ito-Regulation-610h.pdf) PRACTICAL VOCATIONAL TRAINING (PVT) STRUCTURED COURSEWORK PROGRAMME FOR CANDIDATE LEGAL PRACTITIONERS (CANDIDATE ATTORNEYS) Alternative dispute resolution, in terms of Regulation 6(10)(h) Author acknowledgement Adv. Nicholas J. Tee 2026/2027 PVT Structured Coursework Programme Publication and Copyright information © 2026/2027 The South African Legal Practice Council. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the South African Legal Practice Council. This intellectual property is strictly for the education and training of candidate legal practitioners as mandated by the Legal Practice Act 28 of 2014 and are not for commercial resale Acknowledgements The Legal Practice Council extends its gratitude to the Evaluator for his/her rigorous review, quality assurance, and contributions to the pedagogical effectiveness of this study guide: Reviewer: Mrs., Shivani Moodley (Pillay) ( Practising Legal Practitioner) Published by: The South African Legal Practice Council National Office, Building 10, Riverview Office Park 100 River View Park Street, Halfway Gardens Midrand, 1686 GUIDE FOR ALTERNATIVE DISPUTE RESOLUTION Regulation 6 (10)(h) FIFTEEN GUIDES There are fifteen guides for practical vocational training of candidate attorneys. This guide deals with the Alternative Dispute Resolution module in regulation 6(10)(h). OVERVIEW On 20 September 2014 Parliament assented to the Legal Practice Act 28 of 2014 (LPA). In terms of section 4 of the LPA, the Legal Practice Council (LPC) was established on 31 October 2018. The following day, on 1 November 2018 the bulk of the rest of the LPA came into effect. The Legal Practice Act regulates all legal practitioners whether on the practising roll or the non-practising roll. There are three forms of legal practice. They are an attorney, an advocate and an advocate with a Fidelity Fund certificate: see section 34 of the LPA. Under section 109(1)(a) of the LPA, the LPC published GN R921 in GG 41879 of 31 August 2018, as amended by GN R3779 in GG 49104 of 11 August 2023. The compulsory course work required in the regulations for candidate attorneys was standardised by the LPC in terms of the Norms and Standards. Regulation 6(10) reads: “(10) The programme of structured course work referred to in sub-regulation (1)(a) and (b) must be standardised and uniform throughout the Republic and comprise the following modules: (a) constitutional practice; (b) professional legal ethics; (c) personal injury claims; (d) high court practice; (e) magistrate’s court practice; (f) criminal court practice; (g) labour dispute resolution; (h) alternative dispute resolution; (i) attorneys’ bookkeeping; (j) wills and estates; (k) matrimonial law; (l) legal costs; (m) drafting of contracts; (n) information and communication technology for practice, and associated aspects of cyber law; and (o) introduction to practice management.” On 11 December 2020 the LPC published the Norms and Standards in Government Gazette 43981 under section 3 (g)(i) read with section 6(1)(b)(i) and section 95(1)(n) of the LPA. Regulation 6(10) requires candidate attorneys to be trained in the modules listed above. The similarity between regulation 6(10) for candidate attorneys and regulation 7(9) for pupils is not an accident. Section 32 of the LPA permits legal practitioners at any time, as determined in the rules and upon payment of the fee determined by the LPC, to apply to the LPC to convert their enrolment as attorneys to that of advocates and vice versa. Consequently, the training of candidate legal practitioners must allow for seamless section 32 conversions. Each guide per module deals with the requirements in regulation 6(10). Examiners set questions derived only from the latest LPC candidate attorneys’ curriculum and reading list. The combined curriculum and reading list is referred to as the “syllabus”. Each of the fifteen guides will assist training supervisors, mentors, busy legal practitioners and candidate attorneys to navigate the syllabus. The focus is on practical vocational training. INTRODUCTION TO EACH GUIDE Each guide per module in Regulation 6(10) is designed to assist candidate attorneys to understand, in real time, the minimum that is required under practical vocational training to become effective attorneys in practice. The essence of effective legal practitioners is the ability to read, to assimilate legal principles from that reading and to apply those principles in practice to the facts of your client’s case and in argument before courts, tribunals, disciplinary bodies, and any other forms of formal gatherings and meetings. The guides avoid prolixity. However each guide requires dedicated concentration. For the examinations, candidate legal practitioners (candidate attorneys and pupils) must be up to date with the latest Constitutional Court and Supreme Court of Appeal cases to within one week before the date of each exam. The guides do not rehash what you studied at University. Your LLB proves your capability. This guide will assist you to prepare for the LPC admission examinations. More importantly, this guide will also equip you to be an effective, competent, calm and (reasonably) confident attorney when you enter the legal profession. REQUEST TO CANDIDATE ATTORNEYS FOR DUE DILIGENCE Please read this guide attentively. Please carry out all recommended court attendances. Please carry out all the recommended practical exercises. Please complete reading all the material in the LPC reading list. Please note the notional hours to complete all 15 guides are 400 hours. Please note this guide, like the other fourteen guides, is sufficient for self-study. Please remember, the exams are based on the LPC’s most up to date reading list. • Currently the most up to date reading list is from 28 March 2025 of Notice 3086 of 2025 published in Government Gazette 52388. • Matters omitted from the LPC reading list will not be in the examinations unless the statute, case or article is included in your exam paper and allows you extra reading time to consider that statute, case or article. • Matters mentioned in the LPC reading list will be the subject of exam questions. • You will be required to answer the exam questions from the perspective of: o Facts first o Law later • The LPC exams, also referred to as assessments, are practical in nature. • The questions will proceed from the following perspective: – o What would you, as attorney of record, advise your client to consider? o What would you, as attorney of record, advise your client to do? o When and why would you refer a matter to another attorney or to counsel? o And similar practical questions. REFERENCES One of the products of Juta & Co Ltd is Jutastat. Many of the notes to this guide are downloaded from Jutastat. Please read the notes with care and diligence. This guide also relies on the Southern African Legal Information Institute (SAFLII). SAFLII is free and open access on the Internet. NOTE WELL The sequence of this guide follows the sequence in the most recent LPC syllabus of 28 March 2025 for candidate attorneys. The fifteen guides are designed to be updated when the LPC so requires. Bullet points below are drafted to assist you to grasp the material in the reading list. You must decide whether to accept or to amend the bullet points to suit your understanding. When there are no bullet points, you need nonetheless to read the rule or case or article to prepare for your exams. LPC SYLLABUS AND THE OFFICIAL SOURCE FOR ALL EXAMINATION QUESTIONS AT THE LPC ATTORNEYS’ ADMISSION EXAMS CURRICULUM READING LISTS AND COURSE CONTENT This column is sourced from PRINCIPAL WORKS: the Norms and Standards the • Grogan, Workplace Law Juta (2015) chapter 20 LPC published on 11 • Ramsden McKenzie’s Law of Building and Engineering Contracts and December 2020 in Arbitration Juta (2014) Government Gazette 43981 Tobie Wiese Alternative dispute resolution in South Africa, Negotiation, Mediation and Arbitration 2021 Juta Introduction to alternative dispute resolution (ADR) 1. INTRODUCTION The impact of Rule 41A of the 1.1. Distinction between adversarial proceedings and facilitative / Uniform Rules of Court consensus-building processes. The role of a mediator. Understand that courts expect actual compliance with Rule 1.2. Conflict management and dispute resolution 41A and not mere lip service. - LSSA Manual on Alternative Dispute Resolution Defining and understanding: - - Access to justice and social justice what is a conflict. - Rights vs interest disputes Negotiation. - Rights vs position-based negotiation Conciliation - Ethics involved in conciliation (conflicts of interest, confidentiality, Mediation. mediator liability) Protection of Investment Act 22 - Drafting certificates, outcome reports, settlement agreements of 2015, section 13. Arbitration. 2. COURT-ANNEXED MEDIATION PROCESSES Arbitration Act 42 of 1965 and 2.1. Rule 41A, Uniform Rules of Court the International Arbitration Act 15 of 2017. 2.2. Magistrates court The role of ADR in litigation. - Rules of Voluntary Court-Annexed Mediation, 2014 - Rules: Conduct of proceedings of Magistrate’s Courts of South Africa, 2019 2.3. Divorce Mediation - Function of the mediator - Children’s Act, Brownlee v Brownlee Gauteng Local Division 2008/25274 - Best interests of the child, parenting plan, maintenance, division of assets, Memorandum of Understanding Mediation in Certain Divorce Matters Act 24 of 1987 Centre For Child Law v TS and Others 2023 (6) SA 1 (CC) 3. ARBITRATION 3.1. Arbitration Agreements - Jurisdiction Dis-Chem Pharmacies Limited v Dainfern Square (Pty) Ltd & Others [2023] ZASCA 115 and the general principle in favour of pleading over and the consequences of failing to plead over in all adversarial litigation Close-Up Mining and Others v Boruchowitz NO and Another 2023 (4) SA 38 (SCA) especially at paras [10] to [16], [23] and [34] to [36] - Competence-competence principle - Enforcement of arbitral awards: o Domestic - Arbitration Act 42 of 1965 o International - International Arbitration Act 15 of 2017 - Section 13 of the Protection of Investment Act 22 of 2015 3.2. Role of chairperson (presiding officer) and participant 3.3. Employment arbitration - CCMA or bargaining council o Issues for mediation/ conciliation o Issues for arbitration - Private arbitration 3.4. Construction Arbitration - Charter of Disputes - ICC recommendations - FIDIC & JBCC contracts INDEX Overview – Fifteen Guides pages 1 to 3 LPC syllabus and the official source for all examination questions at the LPC attorneys’ admission exams pages 4 to 5 Index page 6 Dispute Resolution- How to use the reading list pages 7 to 8 A. General page 7 B. Introduction pages 7 to 8 C. Practical message for candidate legal practitioners page 8 D. Reading list page 8 1. INTRODUCTION pages 8 to 11 1.1 Distinction between adversarial proceedings and facilitative/ consensus-building processes. pages 8 to 10 1.2 Conflict management and dispute resolution. pages 10 to 11 2. COURT-ANNEXED MEDIATION PROCESSES pages 11 to 13 2.1 Rule 41A, Uniform Rules of Court page 11 2.2 Magistrates court page 11 2.3 Divorce Mediation pages 11 to 13 3. ARBITRATION pages 14 to 16 3.1 Arbitration Agreements. pages 14 to 15 3.2 Role of chairperson (presiding officer) and participant pages 15 to 16 3.3 Employment arbitration page 16 3.4 Construction Arbitration page 16 Alternative Dispute Resolution – HOW TO USE THE READING LIST A. GENERAL This module prepares you to understand the basic but essential principles, concepts and procedures of Alternative Dispute Resolution. Candidates must read the Arbitration Act 42 of 1965, and the case law indicated in the reading list. Some of the salient issues are set out in bullet points below. The reason to read the references in the reading list is to prepare for your attorneys’ admission exams. The examiners draft exam questions from the syllabus. The syllabus includes the column Curriculum and Course Content and the column Reading List in the table above. Questions based on matters not in the syllabus are allowed only where the statute, case or article being examined is added into the examination paper. In that event, you will be given an extra fifteen minutes to read and consider the question before writing your exam. This principle applies to all the modules in regulation 6(10) and for all your admission exams. Note well: many candidate attorneys do not have access to the South African Law Reports nor the All South Africa reports published by LexisNexis. In this guide some references to the URLs of SAFLII are included. Remember: the bullet points are designed to help you understand salient issues. The phrase: Subject to your reading, the following points may be drawn from the case cited above requires you to check whether the bullet points are indeed an accurate reflection of the case. Be proactive: you can develop your own bullet points for exam preparation and for use later in practice. The Department of Justice website also has up to date legislation and subordinate legislation. See the following URLs: https://www.justice.gov.za/ https://www.justice.gov.za/constitution/index.html https://www.justice.gov.za/legislation/acts/acts_full.html https://www.justice.gov.za/legislation/rules/rules.htm B. INTRODUCTION The main purpose of the Norms and Standards is to provide a national approach to standardise and implement practical vocation training of candidate attorneys in terms of regulation 6(10). Five years of deliberation including two colloquiums and frequent publications of the syllabus have preceded the gazetting of the LPC syllabus on 28 March 2025. In future, the LPC syllabus will be updated and amended as required by circumstances in the legal profession. Examiners’ obligations There will be an emphasis on rules in regular use in practice; see the reading list. In your admission exams any question posed on the interpretation of an Act of Parliament or a rule requires the examiners to include that text in the question paper itself. To reiterate: you do not need to know the legislation and rules by heart. C. PRACTICAL MESSAGE FOR CANDIDATE LEGAL PRACTITIONERS • To avoid an unnecessary repetition on how you as candidates need to learn the skills to advise your clients and to take instructions in practice, please read pages 16 to 24 of the Guide for Constitutional Practice, and apply the necessary changes for matters that are not constitutional issues. D. READING LIST The reading list is to the point. PRINCIPAL WORKS: • Grogan, Workplace Law Juta (2015) chapter 20 • Ramsden McKenzie’s Law of Building and Engineering Contracts and Arbitration Juta (2014) Tobie Wiese Alternative dispute resolution in South Africa, Negotiation, Mediation and Arbitration 2021 Juta Note for the candidates: You may use the principal works for reference during preparation for your admission exams. You will use those works in practice if you specialise in any law that uses arbitration and mediation. Please focus on the matters set out below. 1. INTRODUCTION 1.1. Distinction between adversarial proceedings and facilitative/consensus-building processes. There are at least five main differences between adversarial and facilitative processes. They are mentioned below. For convenience arbitration and court litigation are grouped under adversarial proceedings, while mediation and consensus building are grouped under facilitative processes. There are also important differences between court litigation and arbitration. And, since Rule 41A there is a compulsory mediation clause that applies to litigation. In practice you may decide there is far more overlap between the processes than is indicated below. The lack of overlap is for teaching purposes. You may debate the differences and similarities of the procedures with your principal and your fellow candidates. Consider the following: The essential differences between mediation and arbitration are: • Mediation is informal, unless conducted in terms of Rule 41A • Mediation does not require pleadings or formal statements • Mediation is facilitative while arbitration is adversarial • Mediation encourages parties to reach consensus and agreement • Mediation is not adversarial unlike court litigation generally • Matrimonial matters may be mediated: matrimonial matters may not be arbitrated The essential differences between arbitration and litigation are: • Arbitration begins with an arbitration agreement between the parties • Arbitration agreement is defined in the Arbitration Act 42 of 1965 as a written agreement providing for the reference to arbitration of any existing dispute or any future dispute relating to a matter specified in the agreement • Litigation begins with process issued out of court between the parties • Arbitration is conducted privately and not in a public forum • Litigation is conducted in open court because: o Open courts are an essential aspect of the rule of law o Litigation is conducted before an impartial presiding judicial officer • Arbitration is by agreement between the parties: in litigation the defendant/respondent is compelled to court • Matters relating to matrimonial causes may not be arbitrated • Matters of status may not be arbitrated • In arbitrations, the parties may choose their arbitrator: in litigation the presiding judicial officer is determined by the Judge President, the Regional Court President or Chief Magistrate or in some matters simply by court rosters • The award in an arbitration is between the parties: the court’s judgment is public record • In arbitration the parties pay the fees of the arbitrator and any arbitration organisation that administers the arbitration • In litigation in South Africa the parties do not pay the judge or magistrate nor do the parties pay court fees. There are jurisdictions in which the litigants must pay court fees: such as Australia, the United Kingdom and Germany The essential similarities between arbitration and litigation are: • Litigation and arbitration follow formal pleading process • Litigation and arbitration are adversarial proceedings • The issues are defined by the parties; in pleadings and statements of case and defence • The arbitrator like a presiding judicial officer determines matters on evidence • The arbitrator and the judge are required to give reasons for their decision • The award, like a judgment, may be executed upon The essential similarities between mediation and arbitration are: • Both are conducted in private because their rationale is the underlying agreement between the parties • Neither takes place in a public forum • Generally the award or settlement remains private as between the parties The role of a mediator. • The mediator liaises, shuttles and mediates between the parties • The mediator does not hear evidence • The mediator facilitates settlement • The mediator does not impose an award or judgment • The mediator’s methods are described later 1.2. Conflict management and dispute resolution - LSSA Manual on Alternative Dispute Resolution This publication is most useful if you have the time to read it. It is LLB quality material. The contents will not be examined in your admission exams unless extracts from the LSSA Manual are included in the exam paper for your comment. - Access to justice and social justice Arbitration is a valid form of access to justice under our Constitution. Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews 2009 (4) SA 529 (CC) at para [219]. Although the case is not in the reading list, para [219] encompasses the Constitutional Court’s rationale. See: https://www.saflii.org/za/cases/ZACC/2009/6.html - Rights vs interest disputes The standard definition of a dispute of right is a legal dispute over the interpretation, application or enforcement of an existing right. The standard definition of a dispute of interest is a dispute about a right which has not yet come into existence. For example: A dispute of right: a lessee fails to pay rent on time. The lessor claims the rent. The lessor proves the contract and has the right to receive the rent. A dispute of interest: the lease has terminated by effluxion of time. The lessor will lease the property to the same lessee for a higher rent. The lessee wants the property but for a lower rent. There is no new lease until the parties agree to the rent. This is a classic dispute of interest. - Rights vs position-based negotiation See the Guide for Labour Dispute Resolution - Ethics involved in conciliation (conflicts of interest, confidentiality, mediator liability) - Drafting certificates, outcome reports, settlement agreements Rule 41A requires the mediator and parties within five days of the mediation to issue a joint minute indicating whether the matter was settled or not, and if a partial settlement was achieved the terms of that settlement. Settlement agreements are subject to the Law of Contract relating to offer and acceptance. • The essential terms of a settlement are the parties and the terms of the settlement. • Useful, but not essential terms are the governing law, what happens if the settlement fails – (for example, does the status quo ante remain or must the aggrieved party sue on the settlement) – and • The usual boilerplate clauses. RAF v Taylor & Related Matters 2023 (5) SA 147 (SCA) at paras [37] to [51] See: https://www.saflii.org/za/cases/ZASCA/2023/64.html • A settlement or • Compromise • known as a transactio in our case law • renders the underlying dispute res judicata 2. COURT-ANNEXED MEDIATION PROCESSES 2.1. Rule 41A, Uniform Rules of Court Please read the rule: it has nine subsections 2.2. Magistrates court - Rules of Voluntary Court-Annexed Mediation, 2014 - Rules: Conduct of proceedings of Magistrate’s Courts of South Africa, 2019 See Chapter 2 of the Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa – GN R740 of 2010, rules 70 to 79. Note to candidates: the rules for mediation in the Magistrates’ Courts are not used often in practice. However, Rule 41A of the Uniform Rules of Court is being used frequently now. 2.3. Divorce Mediation See also the Guide for Matrimonial Law Children’s Act 38 of 2005 • Section 21(3) on Parental responsibilities and rights of unmarried fathers • Requires that if there is a dispute between the biological father and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in section 21, o the matter must be referred for mediation to a family advocate, o social worker, o social service professional or o other suitably qualified person. • Section 33 on Contents of parenting plans • Requires preparing a parenting plan through o the assistance of a family advocate, social worker or psychologist; or o mediation through a social worker or other suitably qualified person. - Function of the mediator The functions of a mediator were referred to in B v B Gauteng Local Division 2008/25274 https://www.saflii.org/za/cases/ZAGPJHC/2009/76.html Subject to your reading, the following points may be drawn from the case cited above • In any pre-trial conference the parties (lawyers) must consider a referral to mediation for possible settlement • Mediation can produce remarkable results in the most unpropitious of circumstances, especially when conducted by people trained in the process of mediation o The success of the process lies in its very nature. o Unlike settlement negotiations between legal advisers, the process is conducted by an independent expert who can, ▪ under conditions of the strictest confidentiality, ▪ isolate underlying interests, ▪ use the information to identify common ground and, ▪ by drawing on his or her own legal and other knowledge, ▪ sensitively encourage an evaluation of the prospects of success in court and ▪ an appreciation of the costs and the ▪ practical consequences of continued litigation ▪ particularly if the case is likely to be lost. • Mediation can do more for the parties than negotiation. • Sheer commercial folly can be demonstrated to both parties sitting at the same table hearing it come from somebody who is independent. See also the Guide for Matrimonial Law - Best interests of the child, parenting plan, maintenance, division of assets, Memorandum of Understanding Mediation in Certain Divorce Matters Act 24 of 1987 Please read the Act: it has only nine sections, some of which have been repealed. Note to candidates: The phrase “each division of the Supreme Court of South Africa” refers to the days before the Supreme Court was renamed the High Court of South Africa. See section 16(4) and 16(5) in Schedule 6 Transitional Arrangements of the Constitution of the Republic of South Africa, 1996. See also section 6 of the Superior Courts Act 10 of 2013. Centre For Child Law v TS and Others 2023 (6) SA 1 (CC) https://www.saflii.org/za/cases/ZACC/2023/22.html Subject to your reading, the following points may be drawn from the case cited above • A declaration of invalidity of section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 was warranted • Coupled with an interim reading-in o to allow never-married parents and o married parents who are not going through a divorce o to approach the Family Advocate in order to enlist its services • From 29 June 2023, Parliament had 24 months to cure the invalidity, failing which the reading-in will continue to be operative Mediators typically conduct mediations as sketched briefly below: • Mediator contract o The parties agree a contract with the mediator o The contract usually includes the fee arrangement and o The mediator’s access to documents relevant to the mediation • Mediation day o The mediator convenes the parties in one venue o The mediator sets out the rules and explains the approach to mediation • Mediation process – overview o The process begins with introductions all round: the mediator chairs o The mediator invites the parties to recount their story or narrative of the matter o The mediator remains impartial, polite and poses questions only for clarification • Mediation process – specifics o Most mediators request the contesting parties to adjourn to separate rooms o The fancy jargon word for that process is called ‘caucus’ or ‘caucusing’ o The mediator shuttles to the first party ▪ The mediator engages in discussions to determine the limits of that party’s position ▪ The mediator may muse some ideas for consideration o Then the mediator shuttles to the other party ▪ The mediator engages in discussions to determine the limits of that party’s position ▪ The mediator may muse some ideas for consideration • Mediation process – the shuttle shuffle scenario o Successful mediators shuttle often between the parties o Successful mediators shuffle many steps between the parties o Successful mediators maintain a positive approach even to recalcitrant parties o Successful mediators listen, liaise, shuttle and shuffle with respect for the parties • Mediation process – closure o When the mediator discerns that settlement is possible another joint meeting is held o The mediator may propose a settlement • After the mediation – assistance and reporting o Under Rule 41A the mediator must sign a joint minute with the parties’ lawyers o Otherwise the mediator may assist with drafting a settlement agreement • When you do your first mediation, you may adapt the above sketch to your preference 3. ARBITRATION 3.1. Arbitration Agreements The Arbitration Act 42 of 1965 defines an ‘arbitration agreement’ as: “means a written agreement providing for the reference to arbitration of any existing dispute or any future dispute relating to a matter specified in the agreement, whether an arbitrator is named or designated therein or not.” Central to an arbitration is the need for a dispute which exists or which may exist in the future. If there is no dispute, there is no jurisdictional fact to commence an arbitration. This is analogous to a breach of s 15(1) of the Arbitration Act: see Vidavsky v Body Corporate of Sunhill Villas 2005 (5) SA 200 (SCA) at para [12]. - Jurisdiction Dis-Chem Pharmacies Limited v Dainfern Square (Pty) Ltd & Others 2024 (4) SA 489 (SCA); [2023] ZASCA 115 https://www.saflii.org/za/cases/ZASCA/2023/115.html and the general principle in favour of pleading over and the consequences of failing to plead over in all adversarial litigation Subject to your reading, the following points may be drawn from the case cited above • Following Hos+Med Medical Aid Scheme v Thebe ya Bophelo Healthcare Marketing & Consulting (Pty) Ltd 2008 (2) SA 608 SCA at para [30] the source of the arbitrator’s power is the agreement between the parties • On a proper construction of the text of the arbitration clause, ‘any disputes or differences, doubts or question arising between the parties’, may be categorised as either an interpretation of any provision of the agreement of lease; or the implementation of the lease agreement. Close-Up Mining and Others v Boruchowitz NO and Another 2023 (4) SA 38 (SCA) especially at paras [10] to [16], [23] and [34] to [36] https://www.saflii.org/za/cases/ZASCA/2023/43.html Subject to your reading, the following points may be drawn from the case cited above. • The parties may agree the matters to be referred to arbitration and enjoy considerable autonomy in doing so. • It is the arbitration agreement, o taken together with acceptance by the parties o of the conditions on which the arbitrator accepts appointment, o that determine the jurisdiction of the arbitrator o as to the matters referred to arbitration. • If the parties agree to confer upon the arbitrator a discretionary competence to decide a matter that has not been pleaded, but one that crystallises outside of the pleadings, there is no reason why the parties’ agreement should not be honoured. • It follows that there is no rule of law that an arbitrator cannot enjoy jurisdiction to decide matters not set out in the pleadings. o What competence the arbitrator enjoys depends upon what is contained in the arbitration agreement. o This is an application of the principle of party autonomy. o It is also consistent with the Arbitration Act. ▪ An arbitration agreement is defined in the Arbitration Act to mean a written agreement providing for the reference to arbitration of any existing dispute or any future dispute relating to a matter specified in the agreement. ▪ That is expansive language, and ▪ it would include a dispute that arises in the course of arbitration proceedings that the arbitrator is given a discretion to entertain. - Competence-competence principle Canton Trading 17 (Pty) Ltd t/a Cube Architects v Hattingh NO 2022 (4) SA 420 (SCA) at paras [34] to [36]: see https://www.saflii.org/za/cases/ZASCA/2021/163.html • the principle means arbitrators enjoy the competence to rule on their own jurisdiction • although the competence-competence principle has not been applied in our domestic law • there is warrant for South African courts to consider its application [para 36] o the principle has been applied in international arbitrations in South Africa See: Zhongji Development Construction Engineering Co Ltd v Kamoto Copper Co SARL 2015 (1) SA 345 (SCA) at para [36]. - Enforcement of arbitral awards: o Domestic - Arbitration Act 42 of 1965 • Section 31 allows an arbitration award to be made an order of court. • S 31(3) provides that an award which has been made an order of court may be enforced in the same manner as any judgment or order to the same effect. o International - International Arbitration Act 15 of 2017 • Section 16 provides for the recognition and enforcement of arbitration agreements and foreign arbitral awards • S 16 is subject to the caveats in section 18 - Section 13 of the Protection of Investment Act 22 of 2015 • An investor that has a dispute in respect of action taken by the government may within six months of becoming aware of the dispute request the Department of Trade and Industry to facilitate the resolution of such dispute by appointing a mediator. 3.2. Role of chairperson (presiding officer) and participant • An arbitrator must act according to the arbitration agreement as amended from time to time • An arbitrator must act fairly towards the parties when deciding the dispute o The arbitrator must exercise care, o proceed diligently and o act impartially and o without any personal interest in the proceedings 3.3. Employment arbitration Please read the Guide for Labour Dispute Resolution - CCMA or bargaining council o Issues for mediation/ conciliation o Issues for arbitration - Private arbitration 3.4. Construction Arbitration - Charter of Disputes - ICC recommendations - FIDIC & JBCC contracts Note to candidates: Construction arbitration is a specialist area of law. You are required to know of the existence of the FIDIC and JBCC contracts. You will not be examined on FIDIC and the JBCC in your admission exams. FIDIC is the acronym for Fédération Internationale Des Ingénieurs-Conseils, the International Federation of Consulting Engineers, established in Ghent, Belgium in July 1913, currently headquartered in Geneva, Switzerland. JBCC is the acronym for the Joint Building Contracts Committee. The JBCC is a non-profit company originally incorporated as a section 21 company under the Companies Act, 1973 with the registration number 1997/017676/08. It was converted to an NPC on 29 April 2020. The JBCC is currently headquartered at Coachman’s Crossing Office Park, Block A Unit 1, 4 Brian Street, Bryanston, Johannesburg. Nicholas J. Tee January/February 2026

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