Zamani Marketing and Management Consultants (the “Applicant”), instituted proceedings in terms of S33 of the Arbitration Act 42 of 1965 (the “Act”) to review and set aside an arbitration award. Subsequently, the Applicant also brought an interlocutory application wherein the Applicant sought to invoke Rule 53(1)(b) of the Uniform Rules of Court (the “Rules(s)”), in order to compel two of the three arbitrators to disclose notes as made by the arbitrators on copies of the pleadings and the discovery bundle.
Accordingly, the Court in this matter was called upon to decide on the following three issues: Firstly, Whether Rule 53 finds application to the review of an arbitration award brought in terms of section 33 of the Act; secondly, whether the arbitrators’ notes form part of the record; and, whether Zamani can compel the disclosure of the arbitrators’ notes.
Relying on the case of Government of Republic of South Africa v Midkon 1984 (3) SA 522 (T), the arbitrators’ argued that a review under section 33 of the Arbitration Act 42 of 1965 is sui generis and therefore, Rule 53 finds no application in this matter. The arbitrators took the position that they exercised a private function and that their manuscript notes do not form part of the record, therefore contending that they are not required to disclose their notes to the Applicant.
Rule 53, stipulates that: – (1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior Court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairperson of the Court, tribunal or board or to the officer, as the case may be, and to all other parties affected —
(a) calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside, and
(b) calling upon the magistrate, presiding officer, chairperson or officer, as the case may be, to despatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desires to give or make, and to notify the applicant that he or she has done so.
In consideration of Rule 53, the Court held that the institutions, functionaries and functions referenced above concerns those who exercise public power; however, the Court was of the view that the applicability of the rule should not be limited to those who exercise such powers. The Court further stated that the Act gives courts supervisory powers that requires an arbitration tribunal to adhere to certain standards and failure to adhere to same permits a court to set aside the award that the arbitration tribunal has made.
The Court held that Rule 53 is indeed applicable to an arbitration review and held that the wording of Rule 53 makes reference to proceedings as described in section 33 of the Act. The Court confirmed that the grounds for judicial intervention include how the arbitration is conducted and how the award is obtained, and not whether the award or its reasons are correct. The Court went on to state that an arbitration tribunal does not exercise public powers, but performs a quasi-judicial function and, therefore an application under section 33 is a review proceeding by which a Court applies legislative and public standards to a tribunal that adjudicates a dispute.
The Court referred to various cases in terms of which the use of Rule 53 was endorsed and stated that Midkon (above) is not authority for the proposition that Rule 53 cannot be of application to arbitration reviews. The Midkon case only decided that the failure to utilize Rule 53 is not an impediment to an arbitration review, because the rule in a particular case may be inappropriate.
Lastly, the Court stated that Rule 53 is not confined to the review of executive and administrative action, rather, the application of Rule 53 is to be determined by reference to what the rule states as its application and whether the procedures required by the rule have utility in an arbitration review. The Court further confirmed that since the conduct of arbitration proceedings are contained in the record, it is important that the arbitration tribunal disclose the record to ensure transparency and fairness .
In considering whether the arbitrators’ notes form part of the record and whether Zamani may utilize Rule 53 to compel the disclosure of the arbitrators’ notes, the Court referred to the case of Helen Suzman Foundation v Judical Service Commission 2018 (4) SA 1 (CC), wherein the Constitutional Court held that there is no general exclusion of the deliberations of the decision-maker from the Rule 53 record, either on the grounds of relevance or public policy. However, the aforementioned case was distinguished from the present case as the present matter specifically deals with an arbitration award. Arbitrators are required to make an award and in doing so, provide reasons for their decision. What must be judged is the reason behind the arbitration award. Notes have no necessary relationship to the award and what an arbitrator was thinking at a point in time when a note was made, is immaterial.
The Court concluded that when parties agree to have their disputes adjudicated by an arbitration tribunal, they repose adjudicative competences in the tribunal. Note taking allows the arbitrator, under conditions of the greatest freedom, to record something. Without this freedom, the adjudicative function would be compromised.
The application was accordingly dismissed.
The Court held that Rule 53 may be applied in an application to review an arbitration award, adapted as may be necessary to the circumstances of the case.
The Court held that arbitrators’ notes do not form part of the record of proceedings as they are too remote from the arbitration award and may harm the freedom with which arbitrators should be permitted to approach their task of adjudication and, as a result, Zamani may not compel the disclosure of the arbitrators’ notes.
The case highlights the importance of judicial intervention in reviewing arbitration awards and the function of arbitrators. According to this case, Rule 53 finds application to the review of an award brought in terms of section 33 of the Act, the reason for this is that Courts have the power to review the exercise of private judicial powers.
Written by Danmari Duguid and Snazo Tuswa