The Origin of Arbitration Law in South Africa

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

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Field Value
 
Title The Origin of Arbitration Law in South Africa
 
Creator Rantsane, Ditaba Petrus
 
Subject arbitration
alternative dispute resolution
award
merchants
craftsman
compromissium
praetor
infamia
litigation
Roman law
Roman-Dutch law
common law
courts
arbitration agreements
arbitration clause
English law
party autonomy
judicial intervention
 
Description This article seeks to trace the historical origin of arbitration as it is currently practised in South Africa. The resort to alternative dispute resolution methods has existed since time immemorial. The practice of arbitration was identified in the Bible when it was practised by King Solomon. South African traditional communities practised arbitration before the arrival of Western nations in South Africa, who brought with them their norms and practices. The community entrusted the responsibility of resolving disputes amicably to the headman, the Chief or the King. The practice of traditional alternative disputes resolution was disrupted by colonialism, which introduced Roman-Dutch law and subsequently English law influences. The aim of the parties under both Roman-Dutch law and English law was to steer their disputes away from courtrooms with their rigid rules and procedures. Hence the resort to arbitration. Through the passage of time, the parties lost respect for arbitration. Judicial intervention became a necessary tool to enforce the agreement to arbitrate or the subsequent award.
A concern was raised in some quarters regarding the South African arbitration legislation that stagnated in 1965 when it was enacted. The sophisticated legal system and the impartial and independent judiciary, provided a strong support to arbitration and its autonomy. The firm judicial support did not detract from the necessity for a complete overhaul of the arbitration prescript, which might position South Africa as the hub of commercial arbitration in Africa and globally. The enactment of the International Arbitration Act, 2017 marked a great milestone towards achieving that goal. Arbitration is embedded in the fabric of South African commercial dispute resolution.
 
Publisher Faculty of Law, North-West University, South Africa
 
Date 2020-11-03
 
Type info:eu-repo/semantics/article
info:eu-repo/semantics/publishedVersion
Peer reviewed article
 
Format application/pdf
text/plain
application/epub+zip
 
Identifier https://journals.assaf.org.za/index.php/per/article/view/8963
10.17159/1727-3781/2020/v23i0a8963
 
Source Potchefstroom Electronic Law Journal; Vol 23 (2020); 1-27
1727-3781
 
Language eng
 
Relation https://journals.assaf.org.za/index.php/per/article/view/8963/10607
https://journals.assaf.org.za/index.php/per/article/view/8963/10608
https://journals.assaf.org.za/index.php/per/article/view/8963/10609
 
Rights Copyright (c) 2020 Ditaba Petrus Rantsane
http://creativecommons.org/licenses/by/4.0
 

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