Wikipedia’s definition of mediation is “a structured, interactive process where an impartial third-party assists disputing parties in resolving conflict through the use of specialised communication and negotiation techniques”. Mediation, when utilised in law, is a form of alternative dispute resolution. Parties that are involved in a dispute may choose the mediation process to resolve the issues between them, either before …
The lessees’ right of pre-emption
The Constitution of the Republic of South Africa (“the Constitution”) does not explicitly provide for a right of appeal from a Small Claims Court judgment. However, section 34 of the Constitution does provide that “everyone has the right to have any dispute […] decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal …
Provocation as a defence
A client poses a question to their attorney: My ex-boyfriend (Y) saw me and my new love interest (X) at a restaurant. Y aggressively confronted me and wanted to know why I have moved on so quickly. X then nicely asked him to leave me alone, whereafter X started to swear at Y. X then lost his temper and punched …
Shared titles, shared responsibility?
The case of Du Plooy and The Cascades Body Corporate and Another deals with a slip-and-fall incident by one of the owners in the scheme and member of the body corporate who was subsequently entrusted by the owners with the duty of the cleaning and gardening services. Mr. Du Plooy, as Plaintiff, slipped and fell in the common area of …
Understanding the functions of the CCMA
I have a dispute which has been referred to the CCMA. How does the process work? The Commission for Conciliation, Mediation and Arbitration (“CCMA”) is a state-funded institution which acts as the centrepiece of the statutory dispute resolution system in the employment sphere. The CCMA, however, operates independently from the state. A dispute is referred to the CCMA within 30 …
Arbitration: What you should know
If two parties have a dispute and conciliation fails, you may request to resolve the dispute by arbitration. At an arbitration hearing, a commissioner gives both parties an opportunity to fully state their cases. The commissioner then decides on the issue in dispute. The decision, called the arbitration award, is legally binding on both parties. Attempts must generally be made to resolve …
CAN SOMEONE RECORD ME WITHOUT MY PERMISSION?
Over the past few months, we have seen videos being posted on social media of physical altercations, poor service delivery and racial slurs, but the victims of the videos and audible recordings are usually unaware that they are being recorded. The recordings are conducted without their permission and then shared. But is someone allowed to record you without being granted …
Choosing mediation when resolving disputes
If I suggest mediation to a party with whom I have a dispute, am I signalling that I lack confidence in my own case? Mediation offers many advantages to parties for resolving a range of disputes, when compared to litigation and arbitration. The mediator must however be properly qualified. Lawyers, who understand mediation, have an important part to play in …