Abstract:
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.
Description:
The
contribution is based on my LLD-thesis titled "Consumer Arbitration in South Africa
and its Effect on the Consumer's Right to Redress and Enforcement" completed in
2017 at the University of Pretoria, South Africa under the supervision of Professors
Jacolien Barnard and Monray Botha. (http://hdl.handle.net/2263/67886)