The case for opening private arbitrations
I’M STARTING a lone crusade to get private arbitrations open to the public. I think it is the next frontier in the battle for open justice, an accepted principle in SA’s constitutional scheme.
In a seminal judgment, Deputy Chief Justice Dikgang Moseneke described open justice as “a cluster or, if you will, umbrella of related constitutional rights”, including freedom of expression, part of which is a right of access to information, and the right to a public trial.
“This systemic requirement of openness in our society flows from the very founding values of our Constitution,” Justice Moseneke said.
Because of open justice, the public not only has the right to attend court hearings, it has access to all the court papers. Because of open justice, we — the public — have also managed to access internal disciplinary proceedings, such as that of former prosecutor Glynnis Breytenbach and, more recently, the disciplinary hearing of controversial Gauteng Hawks head Shadrack Sibiya.
The media have also been able to access arbitration proceedings in the Commission for Conciliation, Mediation and Arbitration (CCMA). Later this month, journalists will be able to attend the CCMA arbitration proceedings of fired South African Revenue Service spokesman Adrian Lackay. We even have access to bar council disciplinary hearings.
Open justice has meant that we have been put in a better position to make up our own minds about matters of manifest public interest.
An example is the smoke and mirrors in the controversy surrounding the Hawks and Independent Police Investigative Directorate (Ipid). Were Sibiya, former Hawks head Anwa Dramat and suspended Ipid head Robert McBride purged because of their “high-level” investigations? Or did they, as claimed by Police Minister Nathi Nhleko, plan and execute a number of abhorrent renditions, sending Zimbabwean nationals to their deaths?
We can make up our own minds better because when disputes are ventilated in open legal proceedings, there are important safeguards: all the relevant facts have to be stated under oath. Lying in court papers is a crime. In open legal proceedings, there can be no unnamed sources with mysterious agendas. One of the best things about legal proceedings are the annexures. Not only must the relevant facts be stated, they must be backed up by original documents: letters, minutes, reports and so on. I so love annexures. And, by their very nature, legal proceedings demand that both sides are fairly afforded their say. There isn’t a better process I know of to get to the truth.
Which brings me to private arbitrations. It is not often that big commercial disputes are litigated in the courts. When they are, I am struck by how little we know about what big companies are up to and how little they want to share, especially when it comes to the money.
In the few cases that have involved big businesses, court papers have given rare and crucial insights into our industries. This is not to say that the big companies do not get into fights. They do. All the time. Or so I hear. But we never know about them because they have agreed beforehand, through a contract, to have the dispute determined through private arbitration.
When I was an attorney, an arbitration clause was one of the standard, boilerplate clauses we put in almost every commercial contract we drafted.
In an arbitration, the parties choose a retired judge or senior advocate and go through a similar process as a court case, but with crucial differences. One of these is that the public is not allowed to attend.
Another is that the arbitration award — the judgment — does not have to be published.
An open process and a reasoned judgment are considered to be two of the crucial methods of judicial accountability. Yet a large number of disputes in SA are missing these. Some of these disputes are manifestly of public interest; they could affect jobs, they could affect the markets, sometimes they could even affect the economy.
But often, we don’t even know about them, despite corporates often wielding as much of power as the government. The rationale for transparency and openness is as great, in my mind.
I am not against arbitrations in principle. There are lots of advantages to them, not least that they are quick and they take the pressure off a court system already creaking under its load. I just think there should be an avenue available for the public to access them. Perhaps not necessarily an automatic right of access, but at the very least on application, if it is in the public interest.
I also think there needs to be some kind of a public-notification requirement so disputes of a certain size or importance must be published somewhere. Kind of like Rule 16A of the Uniform Rules of Court, which requires a public notice when any court case raises a constitutional matter. I am hoping the clever lawyers out there will come up with the best way to achieve this.
In the meantime, I’m trying to come up with a hashtag: #OpenArbies #ClosedArbitrationsMustFall.
Rabkin is law and constitution writer.