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National Land Transport Act, 2009 (Act No. 5 of 2009)

Regulations

Regulations on Contracting for Public Transport Services

8. Arbitration in urgent matters

 

(1) Where a matter must be referred to arbitration under section 46(2) of the Act and the contracting authority notifies the operator in writing that the matter is urgent, the matter must proceed to urgent arbitration in terms of this regulation.

 

(2) Except as otherwise provided in these regulations, the arbitration proceedings shall be conducted in accordance with the arbitration laws of the Republic, and in English.

 

(3) The arbitration proceedings must be conducted on an informal basis, it being the intention that a decision should be reached as expeditiously and inexpensively as possible, but in any event within 30 days of the arbitrator being appointed, Subject only to the due observance of the principles of justice.

 

(4) The parties must each nominate an arbitrator in writing within four days after the operator receives the notification referred to in subregulation (1), and if they fail to agree on an arbitrator within three days thereafter, or a party fails to nominate an arbitrator, the Bar Council of the area in which the contract was executed must be asked by either party to nominate an arbitrator on an urgent basis, who must be a retired judge or an advocate with at least ten years' experience in practice at the bar and will be appointed in writing by the contracting authority.

 

(5) Within 10 days after the arbitrator is appointed, or within such further period that the arbitrator may approve on good cause shown, each party must submit to the arbitrator a full written statement of his, her or its case which must set out all the evidence, sworn statements, facts, submissions and expert opinion as such party deems necessary to support its contentions in regard to the matters in dispute and simultaneously serve a copy thereof on the other party.

 

(6) If a party fails to submit a statement of case within the period specified in subregulation (5), the arbitrator may proceed to make an award without it.

 

(7) Within seven days after receipt of the copy of the other party's statement of case, or within such further period that the arbitrator may approve on good cause shown, either party may submit a further supplementary statement to the arbitrator, and must serve a copy thereof on the other party.

 

(8) If the arbitrator considers that the matter cannot be decided on the papers before him or her, the arbitrator may call for other evidence or for witnesses to testify at a place determined by the arbitrator.

 

(9) Witnesses must testify in the presence of both parties unless the arbitrator rules differently.

 

(10) The parties, who may question such witnesses, and the arbitrator may appoint a commissioner to take evidence of any person within or outside the Republic and forward it to the arbitrator as if he or she were a commissioner appointed by the court.

 

(11) Subject to these regulations, the arbitrator shall have discretion and all powers allowed by law to ensure the just, expeditious, economic and final determination of the dispute, including the matter of costs, and without derogating from the generality of the foregoing, shall also have the power—
(a) to order any party to cover the cost of an interpreter;
(b) to determine the time, place and venue of the hearing and the hours during which it will take place;
(c) to strike out or dismiss a claim or defence on grounds of failure by a party to comply timeously with any ruling or interim award by the arbitrator, or on grounds of delaying conduct by a party which is likely to cause substantial prejudice to the other party;
(d) to proceed with the arbitration in the absence of or without hearing a party who is in default or fails to appear or to comply with any ruling or interim award of the arbitrator;
(e) to make any ruling or give any direction necessary or advisable for the just, expeditious, economic and final determination of all disputed matters raised in the statements of case, including the matter of costs;
(f) to determine the validity of the contract and the value of the unexpired portion thereof, if any;
(g) to permit the amendment of a party's statement of case (but not affidavits submitted therewith) and require a party to amend its statement of case so that it is not evasive and, on application of a party, to strike out from the other party's statement averments which are vague, scandalous, vexatious or irrelevant;
(h) to make rulings or give interim awards on matters of onus, admissibility of evidence and procedure, including ones of an interlocutory or interim nature, and rulings or interim awards relating to costs and the implementation of interim or final awards;
(i) to make such findings of fact and law as may be required for purposes of the proceedings and the award, including an order as to costs, and including an award whereby a party is restrained from any conduct, either on an interim or final basis;
(j) before making a final award and on the application of a party, to state any question of law arising in the course of the proceedings as a special case for the opinion of senior counsel, which opinion shall be final and binding on the arbitrator and the parties, and not subject to appeal;
(k) in determining the procedure for the arbitration, and after hearing the parties, to direct—
(i) that the dispute must be determined summarily at an informal hearing attended by both parties;
(ii) the summary trial of an issue to decide whether any issue or point has no reasonable prospect of success and should be dismissed or struck out, or as to whether an interim award should be made for a sum indisputably due;
(iii) that a party should furnish more particulars or details on any issue;
(iv) that a party must produce or make available for inspection to the other party and to the arbitrator any document, property or thing under the control of the first party;
(v) that there shall be one or more inspections in loco;
(vi) 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 issues determined by the arbitrator;
(vii) that parties must provide each other with a list of names of witnesses to be called, with a statement of the substance of their 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;
(viii) that the hearing should proceed on documents (including written submissions), only, without the presentation of other evidence.

 

(12) The arbitrator must do all in his or her power make an award within 30 days after he or she was appointed, or as soon as possible thereafter.

 

(13) Any award made by the arbitrator—
(a) shall be final and binding on the parties;
(b) shall be carried into effect forthwith by the parties;
(c) may be made an order of court by a party only if the other party fails to heed the terms of the award, and
(d) may include an order directing the unsuccessful party to pay the costs of the arbitrator and the expenditure incurred by the successful party.

 

(14) Neither party may withdraw from such arbitration once the contracting authority has certified that the matter is urgent under this regulation, and if a party purports to withdraw the arbitrator shall continue to determine the matter as set out in this regulation, whether the party is present or not.