Covid-19: Arbitration may avert the massive court backlogs

South African courts already face massive issues related to backlogged matters. Court closures and hearing of limited matters to flatten the Covid-19 curve will raise further delays in resolving disputes. Arbitration proceedings may offer a viable solution.

In order to facilitate the implementation of the lockdown, the Minister of Cooperative Governance and Traditional Affairs has issued several regulations under the Disaster Management Act, 2002, allowing each Minister in government to issue directions relevant for the proper functioning of his or her portfolio during the lockdown. Various directions have been issued by the Minister of Justice and Correctional Services which have a bearing on how the courts will operate during the lockdown. The Chief Justice has also issued directions related to the functioning of the courts during and beyond the lockdown on 19 March 2020 and 17 April 2020.

The impact of the lockdown and the directions on the functioning of already backlogged South African courts will invariably extend beyond the lockdown, as a result of, among other measures, the mandatory delay in hearing of all non-urgent matters, suspension of service via sheriff for all non-urgent and non-specified documents, as well as the prescribed limited access to actual court precincts for purposes of filing and other document related processes.  Inevitably, these measures will simply compound the pre-existing delays present in the hearing rolls and other date-dependent instruments of the courts.

These compounded delays will continue, despite provision being made for certain matters to be held via electronic means in the directions, as these provisions are only applicable to certain matters which have been set down on dates which fall within the lockdown period.  While the Judge Presidents of each High Court have implemented court-specific directives which, in some cases, prescribe regulations in relation to virtual hearings set down until the end of June 2020, these do not directly deal with the above-mentioned backlogs which are to come following the implementation of the directions, specifically in relation to new matters which are to be instituted and/or set down.

Considering this, we foresee a tangible impact on the ability of claimants (and defendants) to have their matters expeditiously heard and completed before the courts. In order to ensure that any potentially litigious dispute which may arise, either as a result of the lockdown, or in the ordinary course of business, is at least afforded the option of bypassing the expected and increased backlogs which will face our judicial system in the coming months, we recommend that arbitration proceedings be considered. The efficacy of arbitration proceedings when compared to proceedings before the court cannot be overstated, particularly in light of the coming compounded delays. 

In order to ensure that arbitration proceedings are at least an option in future disputes, dispute resolution clauses in all existing agreements should be reviewed with the aim of ascertaining whether there is provision for any dispute arising therefrom to be referred to arbitration.  If there is no provision for referral to arbitration, inclusion of this should be given serious consideration if the agreement has yet to be concluded.  Alternatively, the other party/ies to the agreement should be approached with a view to negotiating the inclusion of an appropriate arbitration clause. If a dispute is ongoing, counterparties may be approached to assess whether they would be willing to reach an agreement on referring the dispute to arbitration.

Webber Wentzel is well placed to offer expert guidance and advice on the various approaches encompassed in mitigating any potential delays in dispute resolution proceedings and moving disputes toward the arbitral forum. If an ongoing, or new, dispute requires resolution during or after the lockdown (while social distancing measures remain in place), Webber Wentzel has the necessary capacity and infrastructure to facilitate meetings and hearings (including virtual meetings and hearings) where practicable.