ARTICLE 1: Definitions
1.1
1.1.1 Words in the singular shall, where applicable, include the
plural, and the feature that in some instances express references
are made to the plural, or to the singular and plural, will not
detract from the aforegoing.
1.1.2 References to the male gender shall include references to
the female gender and to the neuter.
1.2 Unless the context otherwise indicates the following words
and phrases shall bear the following meanings.
"arbitration agreement": a written agreement providing for the
reference to arbitration of an existing dispute or a future
dispute, whether or not an arbitrator is named or designated
therein;
"the court": a Magistrates Court or the Supreme Court of South
Africa, or any court established or recognised by section 166 of
the Constitution of the Republic of South Africa, 1996, as the
context may indicate; and the "Supreme Court" includes any
successor in title to the Supreme Court;
"deliver": to deliver or send copies to all parties as provided
for in these Rules, and to file the original to the Registrar; and
"delivery" has a corresponding meaning; but "physically deliver"
shall mean physically deliver to the party indicated by the
context;
"pleading": includes documents comprising a Request for
Arbitration, a statement of defence, a counter-claim and a
statement of defence to a counterclaim;
"the Act": the Arbitration Act, 1965;
"the Foundation": the Arbitration Foundation of Southern Africa,
being the name under which the Arbitration Foundation of Southern
Africa ("AFSA") conducts its activities of providing the
administrative means for the conduct of arbitration
proceedings.
"the Registrar": the officer appointed by AFSA under that title
to perform the administrative functions conferred upon him under
these Rules for the Foundation;
"the Secretariat": the body of persons appointed by AFSA to
perform the functions conferred upon it under these Rules;
"writing": includes typewriting and the record of transmission
by telex, telefax or other means of telecommunication; and
"written" has a corresponding meaning.
ARTICLE 2: The Foundation's Secretariat and administration
2.1 The Arbitration Foundation of Southern Africa ("the
Foundation") is the name under which the Arbitration Foundation of
Southern Africa ("AFSA") conducts its activities of providing
administrative means for the conduct of arbitration proceedings.
Its activities include the appointment of a panel of persons who
have agreed to act as arbitrators under the aegis of and according
to the Rules of the Foundation, the appointment of an arbitrator or
arbitrators for resolution of particular disputes, the provision of
the venue and the administrative services for conduct of
arbitration proceedings under and in accordance with these Rules
for fees covering its administrative services and provision of a
venue and the fees and expenses of the arbitrator or
arbitrators.
2.2
2.2.1 The Foundation's activities in providing the aforesaid
arbitration facilities are controlled by a Secretariat, which
comprises the persons appointed by AFSA.
2.2.2 Any steps to be taken, and any decision to be made, and
any directions to be given, by the Foundation in terms of these
Rules, shall be taken by the Secretariat. The decision by majority
vote of the members of the Secretariat shall be the decision of the
Secretariat, and a written communication signed or authorised by
the person presiding over any meeting of the Secretariat, shall be
prima facie proof of the decision of the Secretariat.
2.2.3 In matters of urgency, the Chairman or Vice-Chairman of
the Secretariat may take any step, decision or give any direction
which the Secretariat may have taken or given, and the decision of
the Chairman or Vice-Chairman that a matter is one of urgency,
shall be decisive of the question whether a matter is one of
urgency within the purview of this sub-rule.
2.3 In the respects and to the extent delegated by or not
actually conducted by the Secretariat under 2.2.1 above, the
administration of the Foundation's activities shall be conducted by
the Registrar of the Foundation, who is the person appointed by
AFSA to that office, assisted by administrative personnel appointed
by AFSA.
The Registrar shall be the channel through which parties to
administration proceedings communicate with the Foundation, with
the Secretariat, and, except during hearings in his or their
presence, with the arbitrator or arbitrators.
2.4 Communications to AFSA, the Secretariat and the Registrar
should be physically delivered to:-
The Registrar
The Arbitration Foundation of Southern Africa
1st Floor, Maisels Chambers
No 4 Protea Place, Sandown
or be addressed to:
The Registrar
The Arbitration Foundation of Southern Africa
P.O. Box 653007
Benmore,
2010
or Docex 143 Randburg
or fax to (011) 320-0525.
ARTICLE 3: Area of applicability of these Rules
These Rules -
3.1 do not apply to disputes on matters in respect of which
reference to arbitration is, by law, not permissible;
3.2 apply only to commercial arbitrations administered by or
under the aegis of the Foundation; provided that, if the
Secretariat of the Foundation accepts a Request for Arbitration as
provided for in these Rules, such acceptance shall have the effect
of the arbitration being deemed to be a commercial arbitration;
3.3 supplement any specific provisions of an arbitration
agreement to arbitrate under the aegis of or according to the Rules
of the Foundation, in so far as such specific provisions are silent
on matters provided for in these Rules;
3.4 apply subject to any peremptory provisions of law applicable
to an arbitration conducted under these Rules.
ARTICLE 4: The request for arbitration and payment of the
administration fee
4.1 A party wishing to resort to arbitration under the aegis of
and according to the Rules of the Foundation, shall submit a
written Request for Arbitration to the Secretariat of the
Foundation through the office of the Registrar.
4.2 The written Request for Arbitration shall include the
following:
4.2.1 the names, description, addresses, telephone and fax
numbers (if any) of the claimant or claimants and of the party or
parties cited as defendant or defendants; the address given for the
defendant or defendants shall be an address as envisaged in
20.4.2;
4.2.2 a copy of the written agreement in terms whereof all the
parties to the requested arbitration agree to arbitration to be
conducted under the aegis of or according to the Rules of the
Foundation by one or more arbitrators appointed by the Foundation;
(This written agreement is hereinafter referred to as "the
arbitration agreement");
4.2.3 a brief statement indicating that an award in accordance
with the claims would fall within the terms of the arbitration
agreement;
4.2.4 a statement setting out the locus standi of each party;
the nature of the dispute; all the material facts and contentions
relied upon by the claimant so as clearly to establish the
circumstances of the case, and the relief claimed; such statement
shall annex copies of all documentation relied upon by the claimant
in support of such facts and contentions;
4.2.5 the claimant's choice of whether there should be one or
three arbitrators, and the claimant's choice (if any) of a
particular arbitrator or arbitrators listed on the Foundation's
panel of arbitrators. If the claimant has no choice of a particular
arbitrator or arbitrators, this fact shall be stated in the
Request. If the claimant has no choice of a particular arbitrator
or arbitrators, but does have a choice that the arbitrator or
arbitrators should be appointed by the Foundation, such a choice
shall be stated in the Request;
4.2.6 the administration fee indicated in paragraph 1 of the
annexe, the form of payment whereof is to be acceptable to the
Foundation.
4.3 The Request for Arbitration shall be accompanied by so many
copies thereof as total the number of defendants cited and
arbitrators requested.
ARTICLE 5: Acceptance or refusal of the request for
arbitration
5. The Secretariat, if satisfied that the dispute is prima
facie, and that all the claims fall within the terms of the
arbitration agreement, and that 4.2 and 4.3 have been complied
with, and if it is not otherwise in its free discretion unwilling
to accept the Request for Arbitration, shall notify the claimant
that it accepts the Request to provide the administrative means for
the requested arbitration. If the Secretariat declines to accept
the Request for Arbitration, it shall notify the claimant
accordingly, and if it so declines solely on the ground that it, in
its free discretion is unwilling to accept such Request, it shall
refund the administration fee to the claimant.
ARTICLE 6: Response of the defendant
6.1 If the Foundation accepts the Request for Arbitration, the
Registrar shall forward a copy of the Request for Arbitration to
the defendant at the address indicated in the Request for
Arbitration, and at the same time in writing notify the defendant
that he is, within 21 calendar days of receipt of the Request for
Arbitration, required, by delivery to the Registrar and the
claimant, to respond -
6.1.1 to any choice expressed by the claimant as to whether one
or three arbitrators should be appointed;
6.1.2 to any choice for a particular arbitrator or arbitrators
expressed by the claimant;
6.1.3 if he does not agree to either the number or to the choice
of the arbitrator or arbitrators proposed by the claimant, by
expressing his own choice of the number of arbitrators and of the
particular arbitrator or arbitrators.
6.1.4 by indicating whether he disputes or admits that the
arbitration agreement was concluded by him and is still operative
for the purposes of arbitration, and whether he disputes or admits
that the claim falls within the terms of the arbitration agreement;
and, if he does so dispute any of the aforegoing, to set out his
grounds for so disputing it;
6.1.5 if no such dispute as is referred to in 6.1.4 is
raised,
6.1.5.1 by delivering his statement of defence, setting out the
material facts and contentions relied upon by him, and indicating
which of the claimant's facts and contentions are admitted and
which are disputed by him, and which of the claimant's claims for
relief are conceded and which are disputed by him, and setting out
his prayers for relief; such statement shall annex copies of all
documentation relied upon by the defendant in support of such facts
and contentions;
6.1.5.2 by delivering any counter-claim, which he seeks to
bring, which counter-claim shall mutatis mutandis comply with
4.2.1, 4.2.3 and 4.2.4 above.
6.1.6 by including with his response so many copies thereof as
total the number of claimants and the number of arbitrators
requested by the claimant or claimants or the defendant or
defendants.
6.2 The Registrar's written notification referred to in 6.1
above shall be accompanied by further written notification
6.2.1 that, despite any dispute by the defendant that the
arbitration agreement was concluded by him or was or still is valid
and operative or that the claim falls within the terms of the
arbitration agreement, the Foundation will appoint an arbitrator to
consider the issues so disputed and decide whether or not to
proceed with the arbitration, and, if he decides to proceed
therewith, to do so;
6.2.2 that to the extent that there is no agreement between the
claimant or all the claimants and the defendant or all the
defendants, as to the number of arbitrators, the choice of
arbitrator or arbitrators, or the category from which an arbitrator
or arbitrators should be appointed, the Secretariat will make a
choice, and will appoint an arbitrator or arbitrators
accordingly.
6.2.3 that the defendant, or the defendants jointly, as the case
may be, is or are required to pay the administration fee in the
amount indicated in the annexe, the form of payment whereof is to
be acceptable to the Foundation.
6.2.4 default by the defendant to respond timeously as required
by 6.1, may result in the arbitrator, after giving notice of the
time and place of the arbitration proceedings as contemplated in
10.1, making an award without further notification to him.
6.3
6.3.1 A defendant may within the said period of 21 calendar days
apply in writing to the Secretariat, through the Registrar, for an
extension of time to deliver his statement of defence and, where
applicable, counter-claim, giving grounds for the requested
extension and the period of extension requested. Whether or not a
defendant makes such application for an extension of time, and, if
he does so, then at the same time as making such application, the
defendant or defendants shall nevertheless respond as required by
paras. 6.1.1 to 6.1.4 inclusive and 6.1.6 above, and pay the
administration fee referred to in 6.2.3 above, and furnish the
Registrar with an address for delivery to him of pleadings and
receipt of all communications from the Secretariat or the Registrar
and from the other party, failing which he will be deemed to have
accepted the address furnished to the Secretariat by the claimant
as such address.
6.3.2 Within the period indicated in 6.1, or the period extended
in terms of 6.3.1, the defendant shall deliver his statement as
required by 6.1.4 or 6.1.5, as the case may be.
6.4 In the event of the delivery of a counter-claim, the
claimant shall deliver a statement of defence, complying mutatis
mutandis with 6.1.5.1 above, within 21 calendar days of the
delivery of the counter-claim. The provisions of para. 6.3 in
regard to the extension of time will mutatis mutandis apply in
regard to delivering a statement of defence to a counter-claim.
ARTICLE 7: Notice to claimant in the event of a particular
arbitrator or arbitrators agreed upon, not being available
Whenever the Secretariat has not declined to accept the Request
for Arbitration as provided for in Article 5, but the service of
the particular arbitrator or arbitrators agreed upon in the
arbitration agreement or under the procedure set out in 4, 5 and 6,
cannot be procured for the particular arbitration, the Secretariat
shall -
7.1 inform the parties that the services of the particular
arbitrator or arbitrators cannot be procured for the particular
arbitration;
7.2 invite the parties to agree within a stated time, upon
another particular arbitrator or other particular arbitrators
selected by them from the Foundation's panel of arbitrators, and
inform them of the consequences under 7.3.2.1 or 7.3.2.2, as the
case may be, of a failure so to agree;
7.3
7.3.1 in the case of such agreement, and after it is satisfied
as prescribed by 9.1.1, 9.1.2, and 9.1.3, appoint an arbitrator or
arbitrators in accordance with such agreement, in which event 9.2
shall apply;
7.3.2 in the case where there is no such agreement
7.3.2.1 where the arbitration agreement permits it, and after it
is satisfied as prescribed by 9.1.1, 9.1.2, and 9.1.3, appoint an
arbitrator or arbitrators in accordance with the applicable
provisions of 9.1, in which event 9.2 shall apply;
7.3.2.1 where the arbitration agreement does not permit it,
inform the parties that the requested arbitration cannot proceed
under the aegis of the Foundation.
ARTICLE 8: Arbitrator to deal with jurisdictional issues
8.1 Where the Secretariat has accepted a Request for
Arbitration, but a party cited as a defendant disputes that he was
a party to an arbitration agreement, or that the arbitration
agreement is still valid and operative, or that the claim falls
within the terms of the arbitration agreement, or a defendant to a
counterclaim disputes that the counterclaim falls within the
arbitration agreement, an arbitrator shall be appointed in
accordance with these Rules, to consider the matters so contested
and decide whether or not to proceed with the arbitration, and, if
he decides to proceed therewith, to do so.
8.2 Any application to a court of law on any matter so
contested, or on any other matter in dispute in arbitration
proceedings commenced under the aegis of the Foundation, shall not
affect the continuation of the arbitration proceedings, save and to
the extent that a court otherwise orders.
8.3 Any party to such arbitration proceedings who is aware of
such an application to a court, shall notify the Registrar, who
shall inform the arbitrator thereof.
ARTICLE 9: Appointment of Arbitrator
9.1 Where the Secretariat is satisfied -
9.1.1 that a dispute is prima facie arbitrable by an arbitrator
to be appointed by the Foundation; and
9.1.2 that the defendant is in default timeously to deliver a
response as required by 6.1, or that the response as required by
6.1 and, if applicable, as required by 6.4, has or have been
delivered; and
9.1.3 that the administration fee as required by 4.2.6 has been
paid by the claimant; and that the adminitration fee as required by
6.2.3 has been paid by the defendant, or, in default of such
payment by the defendant, that it has been paid by the claimant;
the Secretariat shall appoint an arbitrator or arbitrators in
accordance with any agreement between the parties, and, to the
extent that there is no such agreement on the number of
arbitrators, the choice of arbitrator or arbitrators, in accordance
with its own choice; provided that, where there is no agreement on
the number of arbitrators to be appointed, the Secretariat shall
appoint a single arbitrator; and provided further that, where three
arbitrators are appointed, the Secretariat shall appoint one of
them as chairman.
9.2 The Registrar shall thereupon
9.2.1 in writing notify the arbitrator or arbitrators of his or
their appointment;
9.2.2 in writing notify the parties of the appointment of the
arbitrator or arbitrators;
9.2.3 forward the file to the arbitrator or arbitrators, and
inform him or them, as the case may be, that the arbitration may,
subject to the provisions of 10.2, proceed in accordance with Rule
10.1.
ARTICLE 10: Continuance of the arbitration proceedings
10.1 The arbitrator shall, subject to 10.2, proceed with the
arbitration at the place and at the time determined by him and of
which reasonable notice has been given to the parties, as
follows:-
10.1.1 in cases where the arbitrator is satisfied that the
Request for Arbitration and notices referred to in 6.1 and 6.2 have
been delivered or sent to the defendant in the manner prescribed in
20.3 and 20.4.2, and that the prescribed time for responding
thereto has expired, and that the party cited as defendant is in
default of responding as required by 6.1, and has not furnished the
arbitrator with good and sufficient cause for such failure, proceed
with the arbitration to its final conclusion in the absence of the
defaulting party;
10.1.2 in cases where the party cited as defendant disputes that
he was a party to the arbitration agreement, or that the
arbitration agreement is still valid and binding, or that the claim
falls within the terms of the arbitration agreement, (all of which
disputes are hereinafter referred to as "jurisdictional disputes"
), then (unless the party against whom the jurisdictional dispute
is raised, informs the arbitrator that he does not wish to proceed
until such dispute has been decided by a court) first decide the
jurisdictional disputes, and, if he decides them against the party
raising any or all of such disputes, then make a ruling for a
period for the delivery of a statement of defence (if not already
delivered) and counterclaim, if any, in accordance with 6.1.5, and
a statement of defence to any counterclaim in accordance with 6.4,
and then proceed as set out below;
10.1.3 in all other cases, hear the parties on the most
expeditious or least costly procedure to be adopted for the further
conduct of the arbitration, and thereafter rule upon such procedure
and upon time limits for complying with such procedure;
10.1.4 thereafter, in such manner as he deems appropriate, on
the application of a party or mero motu, conduct hearings or
otherwise deal with any further procedural and interlocutory
matters, including matters relating to compliance or non-compliance
with his procedural rulings;
10.1.5 proceed with the hearing until the final conclusion
thereof;
10.1.6 thereafter make a written award on all issues in the
dispute, including an award on costs;
10.1.7 notwithstanding anything provided in 10.1.1 to 10.1.6,
combine or dispense with any of the steps provided in 10.1.1 to
10.1.6 if he considers it appropriate for the just, expeditious,
economical and final determination of all the disputes raised in
the proceedings.
10.2
10.2.1 Before devoting any time to any step in the proceedings,
the arbitrator shall notify the Secretariat of the nature of such
step and of the time which he estimates will be required therefor.
The arbitrator shall give a similar notification to the Secretariat
before further proceeding with any step which will take more time
than he estimated before commencing such step.
10.2.2 Upon receipt of such notification from the arbitrator the
Secretariat shall notify the parties of the fees payable by each of
them in respect of the next step in the proceedings, or in default
of timeous payment by any party, may be paid by the other party to
ensure the continuance of the next step in the proceedings, and of
when such fees are payable.
10.2.3 Upon receipt of such payments, the Secretariat shall
authorise and instruct the arbitrator to proceed with the
arbitration only for the estimated time or further time in respect
whereof such fees have been paid; so that at all stages the parties
shall be required to pay fees only in respect of the estimated time
required for the completion of any current step or the next step in
the proceedings, and the arbitrator shall proceed only for such
time as advance payment of the required fees has been made.
10.2.4 Nothing provided above shall preclude parties or any
party to pay to the Secretariat an amount greater than is required
for any particular step or steps, and in that event the Secretariat
shall notify the arbitrator of the time for which he may proceed
with the arbitration without further authorisation and instruction
from the Secretariat.
10.2.5 The Secretariat may
10.2.5.1 in any where an arbitrator appointed by it has
nevertheless proceeded with the arbitration beyond the time for
which advance payment of the fees has been made, instruct the
arbitrator not to proceed with the proceedings until payment for
the time spent by the arbitrator and the required advance payment
has been made;
10.2.5.2 refund to the parties the whole or part of any advance
payment of fees where it is satisfied that such advance payment, or
part thereof, will, for any reason, constitute an overpayment for
the proceedings;
10.2.5.3 in any case where a counterclaim materially exceeds the
claim, in its discretion require the defendant to pay an additional
amount in respect of the administration fee payable by the
defendant so that such payment accords with the scale relating to
administration fees in the annexe.
10.2.6
10.2.6.1 Save as provided in 10.2.6.2, the arbitrator, after
satisfying himself that any notice required to be given to a party
in terms of these Rules has been given in the manner prescribed in
20.3 and 20.4, and that the prescribed time for responding thereto
has expired, may regard a party who fails to appear at a time and
place of which reasonable notice has been given to the parties, or
who fails to comply with any ruling made by him as being in
default, and may, after giving the parties reasonable notice of the
time when and place where he intends to proceed with the
arbitration, proceed with the arbitration in the absence of such
defaulting party or without hearing or further hearing such party;
provided that a defaulting party who does appear personally or by
representative at the said time and place shall be given an
opportunity of applying in such manner and within a period
prescribed by the arbitrator, to the arbitrator to cure his
default, whereupon the arbitrator may either grant such application
on such terms and conditions as he deems fit and proceed with the
further conduct of the arbitration in the manner ruled upon by him
(but subject to these Rules), or refuse such application and
proceed with the arbitration without further hearing the defaulting
party.
10.2.6.2 Where a party has at any time before an award is made,
on reasonable notice to all other parties, given the arbitrator
good and sufficient cause for his default in timeously complying
with these Rules or with any ruling made by the arbitrator, the
arbitrator may afford him an opportunity for curing such default,
and, if he fails to cure such default within the time stipulated by
the arbitrator, the arbitrator may proceed with the arbitration in
the absence of, or without further hearing, the defaulting party;
to its final conclusion at a time and place of which reasonable
notice has been given to all parties, including the defaulting
party.
ARTICLE 11: Powers of the Arbitrator
11.1 The arbitrator shall have the widest discretion and powers
allowed by law to ensure the just, expeditious, economical, and
final determination of all the disputes raised in the proceedings,
including the matter of costs.
11.2 Without detracting from the generality of the aforegoing,
the arbitrator shall have the following powers:
11.2.1 to determine the language or languages in which the
proceedings shall be conducted, and the award made, and which party
shall have the duty to provide for the services of an interpreter
if required;
11.2.2 to rule on his own jurisdiction, including rulings on any
dispute in regard to the existence or validity of the arbitration
agreement or the scope thereof;
11.2.3 to strike out or dismiss any claim or defence on the
grounds of failure of a party timeously to comply with any ruling
or interim award of the arbitrator, or on the ground of delaying
conduct on the part of a party so as to give rise to a substantial
risk of serious prejudice to the other party or parties;
11.2.4 to proceed with the arbitration in accordance with these
Rules, and make an award in the absence of or without hearing any
party who is in default as provided for in these Rules, or fails to
appear or to comply with any ruling or interim award of the
arbitrator;
11.2.5 to make any ruling or give any direction mentioned in
these Rules or as he otherwise considers necessary or advisable for
the just, expeditious, economical and final determination of all
the disputes raised in the pleadings, including the matter of
costs;
11.2.6 to determine, from time to time, the time, date and place
of the hearing, and the hours during which the hearing shall take
place;
11.2.7 to extend before or after their expiry, or abbreviate any
time limits provided for in these Rules or by his rulings or
directions;
11.2.8 to appoint one or more advisors or experts on any matter
(including law) to assist in the conduct of the arbitration, but
only with the agreement of all parties and of such advisor or
experts, and only if the parties and such advisors or experts have
agreed on the payment of the fees of such advisors or experts
directly by one or more of the parties;
11.2.9 to order any party who is a claimant, or claimant under a
counterclaim, to furnish security for costs in respect of his claim
or counterclaim;
11.2.10 to allow (but only with their express written consent)
other parties to be joined in the arbitration proceedings, and to
make an award on all issues submitted by all parties, including
parties so joined, for decision by the arbitrator;
11.2.11 to determine the existence or validity of any contract,
including any contract containing the arbitration agreement, and to
order rectification of such contract;
11.2.12 to order the parties to produce or make available for
inspection by any other party and by the arbitrator, by any
advisors or experts appointed to assist him in terms of 11.2.8, and
by any expert engaged by any party, any property or thing under the
control of the party or parties against whom such order is made;
and to hold inspections in loco; and to make orders for the interim
custody or preservation of goods or property, or, where such goods
or property would otherwise lose their value, for the realisation
of such goods or property and the interim preservation of the
proceeds of such realisation;
11.2.13 to permit the amendment of any pleading or other
document (other than an affidavit) delivered by a party;
11.2.14 to make rulings or give interim awards of any matter of
onus, admissibility of evidence, and of procedure, including
rulings or awards of an interlocutory or interim nature, and
rulings or interim awards relating to liability for and payment of
costs and implementation of interim or final awards;
11.2.15 to receive and take into account such oral or written
evidence as he deems relevant, and to make such findings of fact
and law as may be required for the purposes of the proceedings and
the award;
11.2.16 to state, at any stage before making a final award, any
question of law arising in the course of the reference in the form
of a special case for the opinion of the court or of counsel.
This power may be exercised on the application of any party to
the reference and shall be exercised if the court on the
application of any party so directs. Such opinion shall be final
and not subject to appeal and shall be binding on the arbitrator or
arbitration tribunal and on the parties to the reference;
11.2.17 to express his award in such currency as may be required
by the exigency of the situation, unless otherwise agreed by the
parties;
11.2.18 to order specific performance of any contract in
circumstances in which the Supreme Court of South Africa would have
the power to do so;
11.2.19 to make an order as to costs;
11.2.20 conduct the arbitration proceedings at any place, inside
or outside the Republic of South Africa, determined by him;
11.2.21 to appoint a commissioner to take the evidence of any
person within or outside the Republic of South Africa and forward
such evidence to the arbitrator as if he were a commissioner
appointed by the court;
11.2.22 to require any party to amend its pleadings so that they
are not evasive but are to the point; and, on the application of
another party, to strike out from a party's pleadings any averments
which are embarrassingly vague, scandalous, vexatious or
irrelevant;
11.2.23 to receive evidence given by telephonic or telecasting
means, provided that he is satisfied that such means afforded all
parties adequate opportunity of examining the witness giving such
evidence;
11.2.24 to make an award whereby a party is restrained from any
conduct, either as an interim or final basis;
11.2.25 generally to exercise such powers and duties as are
allowed to him by any agreement of the parties or by the laws of
the Republic of South Africa and as are required for the just,
economical and expeditious conduct and conclusion of the
proceedings, where these Rules are silent in any respect.
11.3 In determining the procedure for the conduct of the
arbitration proceedings, and without detracting from the generality
of 11.1, the arbitrator may, after hearing the parties thereon, and
if he considers it appropriate for the just, economical,
expeditious and final determination of the dispute, direct:
11.3.1 that the dispute should be determined summarily at an
informal hearing attended by all parties;
11.3.2 the summary trial of an issue to decide whether any issue
or point raised has no reasonable prospect of success and should
therefore be dismissed or struck out;
11.3.3 the summary trial of an issue as to whether an interim
award should be made for any sum indisputably due (whether on
account of debt or damages or on any other basis);
11.3.4 that any party should furnish more particulars or details
of his case on any issue;
11.3.5 that there should be discovery on oath or otherwise of
documents and recordings (subject to valid legal objection) either
in regard to all relevant matters or in regard to such issues as
determined by the arbitrator;
11.3.6 that parties provide each other with a list of the names
of witnesses to be called, and with a statement of the substance of
each witness' evidence, and that, save with the leave of the
arbitrator, no witness shall be called in respect of whom such name
and summary has not been provided;
11.3.7 that the hearing should proceed on documents (including
written submissions), only, without the presentation of other
evidence; and, if the parties so agree, without the presentation of
argument.
ARTICLE 12: The Award
12.1 The arbitrator shall make his final award as soon as may be
practic able, and in any event not later than 60 calendar days
after completion of the hearing, unless the parties in writing
agree to an extension of this period or, in exceptional
circumstances, the Secretariat extends such period.
12.2 The final award and all interim awards shall be made in
writing, and, unless all the parties in writing agree otherwise,
shall set out the reasons upon which the award is based. The award
shall be signed and dated by the arbitrator, or, in the case of a
tribunal of three arbitrators, by all the members of the
arbitration tribunal. If a minority of the members of a tribunal
refuses to sign the award, such refusal shall be mentioned in the
award but shall not invalidate it.
12.3 The arbitrator, the parties or their representatives being
present or having been summoned to appear shall deliver the award.
The award shall be deemed to have been published to the parties on
the date when it is so delivered.
12.4 Interim awards may be made on different issues at any time
within the period allowed for making a final award.
12.5
12.5.1 If the parties reach a written settlement after the file
has been forwarded to the arbitrator, the arbitrator shall, upon
being furnished by any party with proof that the parties have in
writing agreed thereto, make an award in accordance with such
written settlement.
12.5.2 If such settlement does not deal with all disputes raised
in the arbitration, the arbitrator shall, unless the settlement in
its terms precludes it, make an award in accordance with such
settlement under 12.5.1, and proceed with the arbitration
proceedings in respect of any disputes, including the matter of
costs, not dealt with in such settlement.
12.6 Where there is more than one arbitrator, the decision of
the majority shall be the decision of the arbitration tribunal,
provided that, in the absence of a majority on any issue, the
decision of the chairman shall determine the issue.
12.7
12.7.1 A party to arbitration proceedings in respect whereof an
award, whether interim or final, has been made under these Rules,
may, within 14 calendar days after publication of the award, upon
written notice to the arbitrator and all other parties, apply to
the arbitrator to correct in the award any clerical or
typographical errors, any patent errors arising from any accidental
slip or omission, errors in computation, or any errors of a similar
nature.
12.7.2 The arbitrator shall, if he considers the application for
correction to be prima facie warranted, give the other parties an
opportunity of making oral or written submissions, as he may
determine, on the application for correction, and thereafter and in
any event within 30 calendar days of the application, either refuse
the application or correct his award, and thereupon the uncorrected
award or the corrected award, as the case may be, shall be his
award.
12.8
12.8.1 The parties to the arbitration may, within 6 weeks after
publication of the award, by writing signed by them, remit any
matter which had been referred to the arbitrator, to the arbitrator
for reconsideration and for the making of a further award or for a
fresh award or for such other purposes and in such manner as they
may specify in the said writing.
12.8.2 The arbitrator shall dispose of such matter as soon as is
practicable, and in any event within three months after the date of
the said writing, unless such writing otherwise directs.
12.8.3 If the arbitrator has, after making the award, died or
become unable or unwilling to deal with the remittal, the award may
be remitted to a new arbitrator agreed upon by the parties or
appointed, with agreement of the parties, by the Secretariat, which
new arbitrator's powers shall include the powers referred to in
14.5.2
12.9 Where an award orders the payment of a sum of money, such
sum shall, unless the award otherwise provides, carry interest from
the date of publication of the award at the same rate as a
judgement debt.
12.10 Unless the parties have in the arbitration agreement or
otherwise agreed that the award shall be subject to appeal, or
unless and to the extent that it is remitted as provided in 12.8,
an award, or an award as corrected in terms of 12.7, shall, subject
to the provisions of the Act or any other law, be final and not
subject to appeal, and each party shall abide by and comply with
the award in accordance with its terms.
12.11 Anything to the contrary in these Rules notwithstanding,
the arbitrator may withhold his award until all payments due to the
Foundation have been made.
ARTICLE 13: Costs of the Arbitration
13.1 Unless the parties have in writing otherwise agreed, the
arbitrator shall in his award deal also with the costs of the
arbitration, and decide which parties shall bear the costs of the
arbitration or in what proportions the parties shall bear such
costs.
13.2
13.2.1 The costs of the arbitration referred to in 13.1 include
the fees payable to the Foundation in respect of the administrative
charges and the provision of a venue and the arbitrator's fees and
any expenses incurred by the arbitrator for the performance of his
arbitral duties, the fees and expenses of expert witnesses
specifically declared by the arbitrator to be recoverable costs,
and the normal legal costs incurred by the parties.
13.2.2 The arbitrator shall, when he awards costs, direct the
scale on which such costs are to be taxed and be recoverable.
13.3
13.3.1 If an award does not state that there is to be no award
as to costs and also omits any provisions in regard to costs, or
omits to deal with all aspects of costs required to be dealt with,
or omits to direct the scale upon which costs awarded are to be
taxed and be recoverable, then any party to the arbitration may,
within 14 days of the publication of the award apply, on notice to
other parties having an interest therein, to the arbitrator for an
order directing by and to whom such costs shall be paid or the
scale upon which such costs shall be taxed and be recoverable.
13.3.2 The arbitrator to whom an application is made in terms of
13.3.1 shall, after affording all parties having an interest
therein an opportunity to be heard, make such award as to costs as
he deems fit so as to cure the omission referred to in 13.3.1.
13.4 The arbitrator may, in making an award as to costs, declare
that such costs shall include the costs incurred in the obtaining
of an opinion of the court or the opinion of counsel on a question
of law under these Rules or under the provisions of a law.
13.5
13.5.1 A party in whose favour or against whom an order for
costs has been made by an arbitrator, shall be entitled to have the
amount of such costs taxed according to law, and if neither party
so insists, such costs may, if the arbitrator is prepared to do so,
be taxed by the arbitrator.
13.5.2 If the arbitrator is requested and agrees to settle or
tax the amount of costs payable in terms of the award, he shall
estimate the time which will be taken up thereby, and notify the
Secretariat accordingly. The Secretariat shall thereupon notify the
parties of the fee payable by each party; or of the fee payable by
one party in the event of default of payment by the other party,
and upon receipt of the whole of such fee, the Secretariat shall
notify the arbitrator that he may proceed to settle or tax the
amount of the costs awarded.
13.5.3 The arbitrator shall thereupon give reasonable notice to
the parties who have an interest therein, of the time and place of
such settlement or taxation of the amount of the costs awarded, and
at such time and place so settle or tax the amount of such
fees.
13.5.4 In settling or taxing the costs the arbitrator may, with
the written agreement of the parties and of a taxing consultant,
whose fees the parties have in writing undertaken to him to pay,
engage the services of such taxing consultant to assist him.
13.6 Notwithstanding anything provided in 13.1 to 13.5, an
arbitrator may, if he considers that in all the circumstances (not
being limited to the degree of success of the parties on the merits
of the dispute) it is just to do so, provide in his award for a
limit to the amount of costs which may be recovered.
ARTICLE 14: Qualification and disqualification of Arbitrators,
termination of appointment of arbitrators, and appointment of
substitute arbitrators
14.1
14.1.1 A prospective arbitrator shall, before his appointment by
the Secretariat, in writing disclose to the Secretariat any facts
and circumstances of which he is aware and which might reasonably
give rise to justified doubts as to his independence or
impartiality in the eyes of the parties.
An arbitrator already appointed shall, if any facts or
circumstances of which he is aware thereafter arise, which might
reasonably give rise to justified doubts as to his independence or
impartiality in the eyes of the parties, in writing disclose the
same to the Secretariat.
14.1.2 Where 14.1.1 is not applicable, an arbitrator shall, on
assuming his duties, sign and furnish to the Secretariat a
declaration to the effect that he is not aware of any circumstances
which might reasonably give rise to justified doubts as to his
independence or impartiality to act as arbitrator in the matter,
and that he will forthwith disclose such circumstances to the
Secretariat if they should arise at any time before the arbitration
is concluded.
14.2
14.2.1 Upon receipt of any notification as referred to in
14.1.1, the Secretariat shall forthwith provide copies thereof to
the parties, and determine when the parties must notify the
Secretariat whether or not they wish the arbitrator to be
appointed, or continue or cease to act as arbitrator, as the case
may be, and, if they or any of them wish the arbitrator not to be
appointed, or to cease to act, as the case may be, the grounds for
such wish shall be furnished.
14.2.2 If the time determined in accordance with 14.2.1 has
expired without a party notifying the Secretariat that he does not
wish the arbitrator in question to be appointed or continue to act
as arbitrator, as the case may be, or if the Secretariat, after
affording the parties and the prospective or appointed arbitrator
an adequate opportunity to respond in writing to the submissions
and comments of each other, decides that there are insufficient
grounds for not appointing the arbitrator in question, or for the
appointed arbitrator to cease to act as such, it shall notify the
parties and the prospective or appointed arbitrator accordingly,
and the appointment or proceedings, as the case may be, shall then
proceed in accordance with these Rules.
14.2.3 If the Secretariat, upon receipt of a notification as
referred to in 14.1.1, decides that a prospective arbitrator should
not be appointed, or an appointed arbitrator should cease to act as
such, it shall appoint a substitute arbitrator in terms of
14.5.
14.3 An arbitrator shall recuse himself when, due to physical,
mental, or other disability, he becomes incapable properly to
perform his duties, and in circumstances which would require a
judicial officer to recuse himself.
14.4 The Secretariat shall be entitled, after a written or oral
hearing (as directed by the Secretariat) of the parties and the
arbitrator, to terminate the appointment of an arbitrator on the
grounds that he has become disqualified from acting or continuing
to act in terms of these Rules, or his inability or refusal to act,
or that he has failed timeously and effectively to perform any of
his functions as arbitrator.
14.5
14.5.1 Whenever the Secretariat has decided not to appoint a
particular arbitrator, or his appointment has been terminated by
the Secretariat, or he is removed from office, or dies, or he
recuses himself, or his appointment is in any other way terminated
or set aside, the Secretariat may, unless the arbitration agreement
provides otherwise, appoint a substitute arbitrator in accordance
with the agreement of all the parties, or, failing such agreement,
of its own choice.
14.5.2 A substitute arbitrator, appointed as aforesaid, shall
have the power to act in the arbitration and make an award as if he
had been appointed in accordance with the terms of the arbitration
agreement, and may avail himself of the evidence recorded in the
arbitration proceedings before his appointment, and may, if he
thinks fit, recall for further examination the person who has given
such evidence.
ARTICLE 15: Law to be applied:
15.1 Subject to 15.2,
15.1.1 the parties shall be free to agree upon the law to be
applied to the merits of the dispute, and the arbitrator shall in
that event apply that law;
15.1.2 in the absence of such agreement, the arbitrator shall
apply the law, which he considers as the applicable law, according,
where applicable, to the rule of conflict of laws, which he
considers applicable.
15.2
15.2.1 Where the law to be applied is not South African law
(hereinafter referred to as "foreign law"), the arbitrator shall
apply such foreign law only if it can be ascertained by him readily
and with sufficient certainty and only to the extent that such
foreign law is not opposed to South African principles of public
policy or natural justice. Where the arbitrator informs the parties
that he is unable to ascertain such foreign law readily and with
sufficient certainty, it shall be the duty of the party relying on
such foreign law to prove the relevant foreign law by means of
evidence. In the absence of such evidence, or where the arbitrator,
despite such evidence, is unable to determine such foreign law, he
shall apply South African law.
15.2.2 Where the written agreement of all parties require the
arbitrator to make his award ex æquo et bono, he shall make his
award on that basis.
15.3 The arbitrator shall apply the South African law of
evidence; provided that he may allow a party to present evidence in
written form, either as signed statements or in affidavit form, in
which event any other party may require the deponent to attend the
proceedings for oral examination and crossexamination, and, if the
deponent fails to attend and submit to be examined and
cross-examined, the arbitrator may exclude such evidence in written
form altogether, or may attach such weight to it as he thinks
fit.
ARTICLE 16: Representation of parties
16.1 Any party may -
16.1.1 in the case of a natural person, represent himself or be
represented by any other person or persons authorised by him;
16.1.2 in the case of a juristic person or a representative
litigant, be represented by any person or persons authorised by it
or him.
16.2 The name and address, professional title (if any),
telephone number, and fax number (if any) of a person representing
a party in the arbitration proceedings shall, forthwith upon
receipt of notification that an arbitrator has been appointed, be
notified to the arbitrator and to the other parties.
ARTICLE 17: Recording of evidence and record of all
proceedings
17.1 The oral evidence of witnesses shall be recorded in such
manner and to such extent as the parties may agree, or failing such
agreement, as the arbitrator from time to time, after consultation
with the parties, directs.
17.2 In the event of any agreement or directive as referred to
in 17.1 at any time not being carried out, the arbitrator shall
himself, in such manner as he sees fit, keep a record of the oral
evidence of witnesses.
17.3 The arbitrator shall retain in the file supplied by the
Secretariat, all pleadings and other documents delivered by all
parties or submitted to the arbitrator, and all interim and final
awards made by him, and all reports furnished to him and by him to
the Secretariat, and all notes kept by him of oral evidence or
argument which was not otherwise recorded, and of a transcript of
evidence and of argument recorded otherwise than by the arbitrator
and furnished to the arbitrator by the parties or any of them.
Upon conclusion of the arbitration proceedings the arbitrator
shall return this file to the Secretariat by delivering it to the
Registrar.
ARTICLE 18: Summoning of witnesses
The attendance of any witness to give evidence and to produce
books, documents or things to the arbitrator may be secured by
invoking the provisions of any law, and the arbitrator shall render
such assistance to a party as he may require to invoke such
provisions.
ARTICLE 19: Offers of settlement
19.1 Any party against whom a claim is made may at any time
prior to publication of the arbitrator's award tender, without
admission of liability and as an offer of settlement, to pay or
perform the whole or part of the claim made, and such tender may be
accompanied by a tender to pay all or part of the costs of the
arbitration of the party to whom the tender is made.
19.2 Such tender shall be in the form of a written notice, given
to the claimant but not to the Registrar nor to the arbitrator, and
shall specify:
19.2.1 the claim or counterclaim, or the particular part
thereof, in respect of which the tender is made;
19.2.2 the precise payment, or undertaking to do or not to do
something, which is tendered;
19.2.3 any tender made in respect of the costs of the
arbitration.
19.3 The party to whom the tender is made shall be entitled, for
a period of 10 calendar days from the receipt of the notice
containing the tender, by written notice to the party making the
tender, to accept the tender, failing which he shall be deemed to
have rejected the tender.
19.4
19.4.1 If the tender is accepted in terms of 19.3, the party
accepting the tender shall be entitled to disclose the tender and
the acceptance thereof to the arbitrator and, upon notice to the
party who made the tender and all other parties, apply to the
arbitrator for an award in terms of the accepted tender. To the
extent that the tender does not extend to costs of the arbitration,
the party applying for an award in terms of the accepted tender
may, if the terms of the tender did not preclude it, apply to the
arbitrator also for a costs award.
19.4.2 The arbitrator shall, upon notification of an application
for an award in terms of 19.3, make an award in terms of the
accepted tender, and, if the accepted tender does not cover the
issue of costs, hear the parties on the issue of costs and
thereafter make such award as to costs as he deems just.
19.5 If the tender is not accepted in terms of 19.3, the fact of
the tender and of its non-acceptance shall not be brought to the
knowledge of the arbitrator until he has made his award on all
issues in dispute in the arbitration, other than costs, whereafter
those facts may be made known to the arbitrator and shall then be
taken into account by him in making an award as to costs; provided
that, if the arbitrator has made an award as to costs before
acquiring knowledge of the tender and its non-acceptance, the party
who made the tender shall be entitled to have the costs award
reconsidered and, if the arbitrator deems it just, varied by the
arbitrator in the light of the facts of the tender and
non-acceptance thereof brought to his knowledge.
ARTICLE 20: Manner of time periods for delivery of pleadings,
documents and other notifications
20.1 All pleadings and other documents and notifications,
complete with annexes, shall be delivered in typed form with an
original for the Secretariat, and a sufficient number of copies to
provide one copy for each party and one copy for the arbitrator or
each of the arbitrators.
20.2 All pleadings, documents and notifications required to be
delivered, shall, save where the Rules otherwise provide, be
physically delivered to the Registrar and sent to other parties by
the Registrar, and all communications of parties with the
Secretariat shall, save where the Rules otherwise provide, be
communicated through the Registrar.
20.3 All notices or communications from the Secretariat or the
Registrar or the arbitrator to a party shall be copied to all other
parties, and shall be deemed to have been validly given or effected
if they are physically delivered, or sent by registered post or
sent by facsimile transmission, telex, telegram, or other recorded
form of transmission providing a record.
20.4
20.4.1 The address to which all pleadings, documents, and other
notifications to a claimant may be physically delivered or sent,
shall be the address furnished by him in the Request for
Arbitration, or such other address as he may thereafter in writing
notify to the Registrar and all parties.
20.4.2
20.4.2.1 Subject to 20.4.2.2, the manner in which all pleadings,
documents, and other notifications to a defendant, or a third party
who has in the manner prescribed in these Rules consented to be
joined in the arbitration proceedings, may be physically delivered
or sent, shall be the following:
(a) by physically delivering it to him personally; provided that
if he is a minor or a person under legal disability, it may be
physically delivered or sent to his guardian, curator, tutor or a
person in a similar legal relationship to him (hereinafter referred
to as his "guardian"); or
(b) by physically delivering it at or sending it to his or his
guardian's residence or place of business; or
(c) by physically delivering it at or sending it to his place of
employment; or
(d) if he has chosen a domicilium citandi, by physically
delivering it at or sending it to the address given as such
domicilium citandi; or
(e) in the case of a corporation or company, by physically
delivering it at or sending it to the registered office or to the
principal place of business of such corporation or company; or
(f) by physically delivering it to or sending it to any agent
who is authorised in writing to accept it on behalf of the party to
whom it is addressed; or
(g) where the defendant or third party is a firm, a partnership
or a voluntary association, by physically delivering it or sending
it to its place of business or to the proprietor of the firm, a
partner of the partnership, or the chairman or secretary of the
committee or managing body of the voluntary association in the
manner referred to in (a), (b), (c), (d) or (f); or
(h) if more than one person is cited jointly as defendant or
third party in their representative capacities, by physically
delivering or sending it to each of them in any manner provided for
in this Article; or
(i) where the defendant or third party is a central or
provincial government or a local government body, or a statutory
body, by physically delivering it or sending it to the nominal
executive head of that government or local government body or
statutory body, or in any manner provided for by law.
20.4.2.3 Where a claimant, defendant, or third party who has in
the manner prescribed in these Rules consented to be joined in the
arbitration proceedings, furnished to the Registrar an address for
the purposes of the delivery or sending of pleadings, documents, or
other notification, they may be physically delivered or sent to
that address or such other address of which he has in writing
notified the Registrar and all other parties.
20.5 Delivery or notification or communication of any pleading,
document, or other notification from the Secretariat or the
Registrar, and from a party to another party, shall be deemed to
have been effected on the day when such delivery or notification or
communication was actually received, or if made in accordance with
20.3 to an address referred to in 20.4, should in the ordinary
course have been received by the party to whom it was addressed or
his representative or a person at that address who would ordinarily
be expected to have brought it to his attention.
20.6 Periods of time specified in these Rules or by the
arbitrator shall commence on the day following the day on which a
pleading or notification is deemed to have been delivered or sent
as provided above, or, as the case may be, the order of the
arbitrator was made or other event occurred whereafter a party is
required to take any step or perform any act within a certain
period; provided that, if the first or last day (but not
intervening days) of such period is a Saturday or Sunday or
official holiday, the period in question shall commence or expire,
or both commence or expire, on the first working day
thereafter.
20.7 Whenever, in terms of these Rules, it is required that
notice be given of any step or proceeding by or to the Secretariat,
the Registrar, or any party, the period of such notice shall,
unless otherwise provided herein, be 7 calendar days.
ARTICLE 21: General
21.1 FEES PAYABLE PRO RATA
The fees payable to the Secretariat shall, as provided herein,
be payable in equal shares by the claimant and by the defendant;
provided that, if there is more than one claimant or defendant,
such claimants or defendants shall pro rata to their numbers be
liable to pay their share of the fee; and provided further that, if
any party defaults in paying his share of such fee, any other party
may pay the defaulting party's share to enable the arbitration to
proceed, and may at any stage of the proceedings apply for an order
for costs to recover the other party's share so paid. The
arbitrator may make such order as to costs on such application as
he deems just.
21.2 ARBITRATION TO BE PRIVATE
21.2.1 The arbitration proceedings shall be conducted in
private, and a party shall be entitled to require the arbitrator to
exclude therefrom any person whose presence is not reasonably
required by another party.
21.2.2 Save as is required by law, or for the exercise of a
party's rights in a court of law, the Secretariat and the Registrar
shall, unless the parties in writing notify the Secretariat
otherwise, maintain confidentiality in regard to any matter being
dealt with or dealt with by the Foundation.
21.3 NON-LIABILITY OF FOUNDATION AND ARBITRATOR
The Foundation shall not be liable to any party for any act or
omission relating to an arbitration conducted under its aegis, and
shall have no liability or responsibility towards the parties or to
any arbitrator in respect of any arbitration commenced under the
aegis of the Foundation but not completed according to these Rules.
An arbitrator appointed by the Foundation shall not be liable for
any act or omission relating to an arbitration in which he was the
arbitrator, except for deliberate misconduct by him.
21.4 DECISIONS BY MAJORITY
Where three arbitrators have been appointed, the decision of the
majority shall on all matters prevail; provided that where there is
no majority on any issue or matter, ruling, decision, or award, the
decision of the chairman shall prevail.
Wherever a matter relating to the procedure of an arbitration
is, according to these Rules, not within the power of an arbitrator
to rule upon or decide, the Secretariat shall have the residual
power to decide such issue, and the parties shall be bound by such
decision.
ARTICLE 22: Appeals
22.1 Where the parties have, whether in terms of the arbitration
agreement or otherwise, in writing agreed that an interim award or
the final award of an arbitrator or arbitrators shall be subject to
a right of appeal the following rules shall, save to the extent
otherwise agreed by them in writing, apply.
22.2 A notice of appeal shall be delivered by the appellant,
within 7 calendar days of publication of the award, failing which
the interim award or final award shall not be appealable. If there
is a crossappeal, a notice of cross-appeal shall be delivered
within 7 calendar days of delivery of the notice of appeal, failing
which a cross-appeal shall be precluded.
22.3 The notice of appeal and notice of cross-appeal, if any,
shall state whether the whole or part only of the award or interim
award is appealed against, and, if only part thereof is appealed,
it shall state which part, and shall further specify the findings
of fact and rulings of law appealed and the grounds upon which the
appeal or cross-appeal is founded.
22.4
22.4.1 Upon delivery of a notice of appeal, the Secretariat
shall obtain from the arbitrator or chairman of the arbitrators, as
the case may be, an estimate of the time which will reasonably be
required for the appeal tribunal to study the record, hear the
appeal and cross-appeal, if any, and make an award thereon.
22.4.2 Thereafter the Secretariat shall, through the Registrar,
notify the parties of the fees payable by each of them in respect
of the appeal, cross-appeal, if any, and of the date by which such
fees are payable, and that, if any party fails to pay his share of
such fees, the other party is entitled within 10 calendar days of
being notified by the Secretariat of such failure, to pay also the
fee of the defaulting party to ensure the continuance of the
appeal.
22.5 Upon receipt of the fees payable for the appeal, and
cross-appeal, if any, the Secretariat shall appoint the appeal
arbitrator or arbitrators agreed upon in writing by the parties, or
the number of appeal arbitrators from the category of arbitrators
agreed upon in writing by the parties, or, failing agreement upon
the number of appeal arbitrators, a single appeal arbitrator, and,
failing agreement on the said category, from a category of its
choice.
22.6 The appeal arbitrator or appeal arbitrators, as the case
may be, shall then, after hearing the parties, direct the party by
whom, the manner in which, extent to which, and the time within
which the record for the appeal and cross-appeal, if any, shall be
prepared and the place where and the time when the appeal and
cross-appeal, if any, shall be heard.
22.7 If any party is in default of timeously paying his share of
the fees for the appeal and cross-appeal, and the other party does
not timeously as provided in 22.4.2 pay also the share of fees
payable by the defaulting party, or if the directions referred to
in 22.6 are not complied with, the appeal or crossappeal, as the
case may be, shall lapse.
22.8 The nature of the appeal and cross-appeal, and the powers
of the appeal arbitrator or arbitrators shall, save to the extent
that the written agreement between the parties or this article 22
provides otherwise, be the same as if it were a civil appeal and
cross-appeal to the Appellate Division of the Supreme Court of
South Africa.
ARTICLE 23: Arbitrations to be held urgently by consent of the
parties
23.1 If all parties to a dispute agree in writing that, at a
time and place agreed upon, and according to a procedure agreed
upon or expressly stated to be decided by the arbitrator, an
arbitration should be conducted as a matter of urgency, they may
jointly apply in writing to the Secretariat for such an arbitration
to be conducted by an arbitrator of their choice or to be appointed
from a particular category in the annexe, by the Secretariat.
23.2 The Secretariat shall notify the parties whether such an
urgent arbitration can be held, and, if so, of the administration
and venue fee and the further daily fees therefor, and, upon
payment of such administration fee and the first daily fee, appoint
such arbitrator.
23.3 The arbitrator shall then and only for so long as the fees
payable for each day after the first day of the hearing have been
paid by not later than noon of the previous day, at the time and
place agreed upon, and according to the procedure agreed upon, or,
if expressly left to him for decision, decided upon by him, conduct
such arbitration to its conclusion and make an award.
23.4 Save as set out in 23.1, 23.2 and 23.3, other provisions of
these Rules shall apply mutatis mutandis to such urgent
arbitrations.
ARTICLE 24: Amendment of these Rules
24. These Rules may at any time be amended by the Secretariat,
and will be available on request made to the Registrar. Such
amendments shall be applicable to all future and current, including
part-heard, arbitrations, save to the extent that the arbitrator
may, in the interests of a just determination of the dispute, rule
otherwise. It shall be the duty of the parties at all times to
ascertain such amendments from the Registrar.
A N N E X E
1_ Administration fee payable in terms of Rule 4.2.6
1.1 Payable by claimant in arbitrations in which the claim is or
claims are expressed in money.
R1000.00 per R100 000.00 up to R1.5 million +.1% exceeding R1.5
million + VAT. This fee is not refundable.
1.2 Payable by claimant in arbitrations in which the claim is
not expressed in money.
Discuss with the Registrar. This fee is not refundable.
2_ Administration fee payable in terms of Rule 6.2.3 by
defendant (or, failing payment by the defendant, by the claimant in
terms of Rule 9.1.3) in arbitrations in which the claim is
expressed in money.
R1000.00 per R100 000.00 up to R1.5 million +.1% exceeding R1.5
million + VAT. This fee is not refundable.
3_ Fees payable, after appointment of arbitrator, for
continuance of arbitration proceedings in terms of Rule 10
NOTE 1
These fees comprise first, the administration fee, and, secondly
the fee payable per day to the arbitrator. Should a venue at the
Foundation be reserved for the purposes of the hearing, the parties
will be charged by the Foundation on a pro rata basis. The
arbitrator will charge an hourly rate for preparation of awards and
attendance at meetings with the parties. The daily venue fees, and
the arbitrator's daily fees, will be multiplied by the number of
days which it is estimated every next step in the arbitration
proceedings will require, and the product thereof will be payable
in terms of Rule 10.2.2 as to 50% by the claimant (or claimants pro
rata to their number) and 50% by the defendant (or defendants pro
rata to their number), or, in default of payment by any party, by
the other party if he wishes to ensure the continuance of the next
step in the arbitration proceedings. Any extraordinary
administration or venue expenses incurred, or expenses incurred by
the arbitrator, will be added to the aforesaid daily fees.
The fee for an Appeal arbitrator or arbitrators: A fee
determined by the Secretariat in terms of Rule 22.4.2
The fees quoted do not include the arbitrator's travel costs
where applicable. Where an arbitrator has reserved dates and the
matter is settled the Secretariat will retain an appropriate amount
by way of the arbitrator's collapse fee..All fees quoted exclude
V.A.T.
NOTE 2
The parties may, in liaison with the arbitrator and the
Registrar, agree that the arbitrator determine that a particular
arbitration venue of the Foundation be used for a specified number
of days. Failing such agreement, the arbitrator determines the
venue where the next step in the arbitration takes place. Recording
and transcription fees, if required, are not included and are
subject to quotation.
Catering facilities are also available subject to prior
arrangement.