Legal Practitioners must be advocates of alternative dispute resolution

March 18th, 2019

Part-time member of the Companies Tribunal (the Tribunal), Matshego Ramagaga, said the Tribunal was not receiving as many matters as one would have expected. She was speaking at the Alternative Dispute Resolution Seminar held in Johannesburg on 27 February.

By Kgomotso Ramotsho

The Companies Tribunal (the Tribunal) in partnership with the Mandela Institute hosted an Alternative Dispute Resolution (ADR) Seminar in Johannesburg on 27 February. Part-time member of the Tribunal, Matshego Ramagaga, said that the Tribunal was not receiving as many matters as one would have expected. She added that the business environment – by its nature – is bound to have disputes, as well as conflicts.

Ms Ramagaga said the government of South Africa (SA), aspires for a healthy society and healthy businesses, she pointed out that in the light of this, government found it proper that ADR be rooted in the Constitution and further introduced it in the Companies Act 71 of 2008. She added that she did not want to believe that legal practitioners have not been promoting ADR because they fear that they will be out of business. She pointed out that whether there is a recession or when the economy is at its best, legal practitioners will always be needed.

Ms Ramagaga said the approach for legal practitioners to take, is to say that legal practitioners are allowed to partake in sessions where mediation takes place. She added that the only difference in mediation for a legal practitioner is that you are not expected to represent your client, but expected to advise your client. She said that legal practitioners should advocate for ADR, and added that this can be done when legal practitioners make it their business to receive training on ADR. Ms Ramagaga noted that the beauty of mediation –be it in the tribunal environment – or any other environment is that mediation focuses on the people who participate, which in this case are parties. She pointed out that when you are the mediator in a case, you are not the focus, but rather there to help parties identify their problems.

Ms Ramagaga said the cornerstone of mediation is to partake in good faith, and pointed out that if parties partake in mediation – while not in good faith – it will be an unproductive exercise. She added that legal practitioners should see to it that if their clients bring a dispute to them, they should take it on themselves to try persuade the client to go for mediation. She said legal practitioners should be able to tell their clients when a matter is a dispute and whether it is capable of being resolved.

Ms Ramagaga added that when she said the government aspires for a healthy society, the aim is to introduce mediation to society as a whole. She pointed out that in criminal law, legal practitioners speak about ‘restorative justice’, which is about people talking. She said people would often say ‘I will see you in court’, however, with mediation you talk and try to resolve the issue around the dispute. She pointed out that it would be unfortunate if one came across a deal, only to find out that the key player in that deal is someone they previously fought or parted with while having a dispute, she said that would put one at a disadvantage.

Part-time member of the Companies Tribunal, Khatija Tootla, spoke at the seminar.

Another part-time member of the Tribunal, Khatija Tootla, added that South Africans like to consult all the time, which she says is not a bad thing and perhaps it is the way to go. She said that the primary objective of mediation and arbitration in the Tribunal is that the objectives of the Companies Act were expanded. She pointed out that the Tribunal has user friendly procedures and there are Rules for Mediation and Rules for Arbitration.

Ms Tootla said that even though there are some people who go to the Tribunal for assistance, she found that legal practitioners did not seem sure about the services being offered at the Tribunal. She spoke about a mediation matter she was involved in and said that senior council was representing their client and as the matter was settled, she told the council that the Tribunal also dealt with arbitration, but council was not aware of that. She pointed out that one of the challenges the Tribunal has, is the issue of awareness and added that people have not acquainted themselves with the Act, and they ought to do the same with regards to dispute resolution.

Chief Director of the Consumer and Corporate Regulation Division at the Department of Trade and Industry, MacDonald Netshitenzhe, said the purpose of tribunals is to come up with solutions when a dispute arises. He added that his department would prefer that the tribunal system not be clogged up with processes, which will end up confusing litigants. He said that government wants conciliation, mediation and arbitration in South Africa and internationally. He pointed out that the idea of a tribunal was not to have legal practitioners arguing at the tribunal.

Chief Director of the Consumer and Corporate Regulation Division at the Department of Trade and Industry, MacDonald Netshitenzhe, said institutions of higher learning must empower students on alternative dispute resolution at tertiary level.

Mr Netshitenzhe mentioned one of the three functions of the Tribunal and said that ch 7 part C of the practice guidelines of the Tribunal, indicates that as an alternative a person can apply for relief to a court or by filing a complaint with the commission. A person who will be entitled to apply for relief or file for a complaint, in terms of the Companies Act, may refer a matter, subject of such an application or complaint for resolution by mediation, conciliation or arbitration to the Tribunal.

Mr Netshitenzhe said that they were having discussions at his department on why there was no clause in the Companies Act, which states that people must not go straight to court with their dispute, but rather start at the Tribunal, where the Tribunal will help to talk about issues the parties have. He added that he would like to see conflict resolution, mediation and arbitration being promoted at institutions of higher learning so that it becomes a culture, when people want to resolve disputes. He gave an example of when there is a dispute in the family they do not go to court or to the police, but rather have a dispute resolution at home.

Mr Netshitenzhe said it will be difficult for students who have not been taught ADR when they enter the system because when a dispute matter arises they will be unable to resolve it since they were not trained in mediation and will instead start coming up with heads of argument. He pointed out that universities should, therefore, empower students with ADR.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.