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Arbitration

Taking someone to ‘court’ is not the only way of getting your dispute resolved. These days, increasingly so, people are resorting to alternative dispute resolution procedures, such as mediation or arbitration.

Mediation is where the parties engage the services of someone else to act as a sort of go-between, negotiating to try and reconcile their differences in order to arrive at a situation with which they are both happy. It is considered a ‘soft’ (and often preferable) form of dispute resolution, because the result is by agreement, and is not forced on anyone. Mediation is suited to matrimonial disputes, for example, and some commercial disputes.

Arbitration is where the two parties enter into an agreement to have their dispute determined by an Arbitrator. Thereby, they contractually bind themselves to abide by and uphold the arbitrator’s decision (which is called an award) – and which can also be made an order of court.

Arbitration is considered to be a form of dispute resolution sometimes preferable to court litigation, because the parties can choose the Arbitrator, and generally dictate the pace of the proceedings. However, the Arbitrator does have significant powers, and the Arbitration Act 19651 provides for a (necessary) platform of formality to the proceedings. It is a common form of dispute resolution where contracts have created a relationship and something goes wrong – building, construction and engineering projects are typical examples.

  1. Any person who:2
    • without good cause, fails to appear when summoned to give evidence before an arbitration tribunal; or
    • fails to remain in attendance until excused by the arbitration tribunal; or
    • refuses to be sworn (or to affirm) as a witness; or
    • refuses to answer fully and to the best of his knowledge and belief any question lawfully put to him during any arbitration proceedings; or
    • without good cause, fails to produce any book, document or thing specified in a summons; or
    • wilfully insults any arbitrator or interrupts the proceedings or otherwise misbehaves himself in the place where the proceedings are being conducted,

    shall be guilty of an offence.

  2. Any person who, having been sworn or having made an affirmation, knowingly gives false evidence before an arbitration tribunal, shall be guilty of an offence.3
  1. As amended; the latest amendment was effectd by way of Act 12 of 2004. 

  2. Section 22(1). 

  3. Section 22(2).