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PROPERTY: Task Team Takes Arbitration to a New Level


Recent Gauteng Business News

A task team comprising leading South African property industry figures is putting together an urgently needed sectional title arbitration panel (the Sectional Title Alternative Dispute Resolution Panel) in an attempt to break the deadlock that has arisen over the resolution of disputes in sectional title complexes.

Task team member Marina Constas, a specialist sectional title attorney and a director at BBM Attorneys, says that in sectional title complexes, disputes – whether over noise, maintenance, pets, rules, conduct or even the collection of levies – are inevitable. However, because the parties are almost always personally involved and likely to continue to be neighbours, issues need to be settled as quickly and painlessly as possible.

“I am, and always will be, a proponent of arbitration as opposed to a court hearing. A properly run arbitration headed up by a robust, suitably qualified arbitrator trumps the Magistrates’ Court or High Court process. In terms of the Standard Rules of Arbitration, the arbitrator has the discretion to hold the hearing informally and to dispense with certain rules of court,” she says.

However, unreasonable delays, exorbitant fees and poor credibility have all but scuppered this process. She explains that, in terms of Management Rule 71, if disputing sectional title parties cannot agree on an arbitrator, the matter must be referred to the Chief Registrar in Pretoria. “While this system is slightly better than having to go to the Registrar in every Deeds office, there are still serious concerns,” she says.

While it was initially thought that a solution would be for the Chief Registrar to appoint a nominee with a specialist sectional title background to select arbitrators, it soon became apparent that the Chief Registrar would not relinquish his authority. “Representatives of the Chief Registrar are, however, willing to work with the Association of Arbitrators to form a specialised panel from which to select arbitrators,” she explains.

The task team that will put this panel in place includes Constas, Zarina Kellerman, (executive director of the Association of Arbitrators), Donald Joubert (a fellow of the Association of Arbitrators) and Annette Horwitz (a director at Calteaux and Partners Attorneys). It has the buy-in of the Chief Registrar in Pretoria.

“We are now asking people interested in serving on this sectional title arbitration panel to put forward their applications. The Chief Registrar has agreed to utilise this panel in respect of sectional title matters once it is in place,” she says.

The Sectional Title Alternative Dispute Resolution Panel is expected to comprise between 10 and 15 people. Applicants need not be attorneys, but there will be different levels of arbitrators so that more complex disputes can be handled by an arbitrator who is an attorney, she adds.

Constas believes that pre-selecting a panel of arbitrators will also do away with other major problems that have cropped up during the resolution of disputes – such as the arbitrators having little knowledge of or experience in dealing with sectional title matters, and overcharging. “In a recent, simple matter, an arbitrator charged R54 000. These types of matters should cost a maximum of R15 000!”

A pre-requisite to act as a mediator or arbitrator on this panel is that, once chosen, the person will have to complete a three-day course on arbitration and sectional title that will be run by the four task team members in every province later in the year. In addition to ensuring that arbitrators are properly qualified, the task team will also put in place guidelines on fees.

“This development will make a huge difference in streamlining the process of arbitration and mediation in sectional title disputes. In fact, it will take arbitration to a whole new level,” she states.

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