VFV Mseleku - news

By: Vfv Mseleku  11-11-2011
Keywords: law

Latest NewsFor a long time the partners of Van der Merwe Ferreira Van Wyk (as it then was) were looking for an opportunity to make the firm a truly South African firm of attorneys and to enter the firm into a new growth path. During the latter part of 2005 they were introduced to Sipho Mseleku, a business person of note who happened to have had his legal skills honed at one of the country's prestigious law firms. After discussions with Sipho, the partners and Sipho agreed that Sipho will be employed on a part-time basis, as a consultant to the firm. This was part of the beginning of a courtship that started in January 2006 and was consummated in September 2006 when Sipho and Fani Dingiswayo joined the firm and the firm changed its name to VFV MSELEKU. The minds met and we could not have asked for a better 25th year anniversary present. This meeting of the minds was an important milestone in the life and to the stakeholders of VFV MSELEKU. Our new partners have been heartily welcomed by our staff and our clients have, in unison, congratulated us on this positive step. VFV MSELEKU has internalized the importance of transformation and diversity. Whilst others give reasons, acceptable and unacceptable, why they have not transformed and diversified, we decided to transform and diversify. The legacy we wish to leave for the future leaders of this firm is that diversity enriches a nation. From diverse views spanning from animal breeders to investment advisors there is agreement that to get the best results, diversification is crucial. We believe that diversity does not require the doing of new things; it requires that the age old need to ensure the longevity of an organization is achieved through mentoring professionals and producing leaders without considering their gender or skin colour. VFV MSELEKU'S commitment to rendering a quality and efficient service to its clients has received new impetus. The firm is continuing on a path that it started when it first appointed the associates that it has not regretted appointing some 3 years ago. We and our staff are continuously in each other's spaces. With the depth and breath of experience gained from 25 years in practice, the different roles and expertise that we have gathered in different places of different sizes, we strive to train our staff to ensure that the service that our clients receive is one that assists them to succeed in their businesses and that their rights are well protected. The meeting of the minds promises great things for us and for our clients.
Commercial contracts have over time provided for the resolution of disputes by means of arbitration. Arbitration is favoured in commerce as disputes are resolved speedily by an arbiter who is agreed upon by the parties or who is appointed by a body that is agreed to by the parties. The courts respect this and respect the decisions of the arbitrators whether or not they agree with the arbitrator's legal conclusions. This was again demonstrated in the latter part of last year when the South African Supreme Court of Appeal ("the SCA") was called upon to look into a dispute that was decided by arbitration. What is very interesting about this decision is that the court of first instance did not agree with the legal conclusions reached by the arbitrator and held that these were so incorrect that they constituted grounds for the review of the arbitrator's decision. The SCA applied a principle that is recognized by our law and stated that the conclusions that were reached by the arbitrator were legal conclusions and, as such, the court could not interfere with them. Much as there is an advantage in referring disputes to arbitration, parties need to be very careful on who the arbiter is or who appoints the arbiter Below is a summary of the SCA decision in the matter between Telkom and Telcordia BackgroundDuring 1999 Telkom, entered into an agreement with Telcordia Technologies Inc. The main object of this agreement was for Telcordia to supply Telkom with a state-of-the-art automated telecommunication system. The agreement contained an arbitration clause. Telcordia contended that it had to deliver software that complied with the specification, which had been mutually developed, agreed upon, and paid for by Telkom. Telkom, on the other hand, argued that the Project Plan had precedence over Exhibit C, which contained the definition of 'specifications'. The arbitrator accepted Telcordia's interpretation in relation to the primary question and accordingly found it unnecessary to deal with the subsidiary questions. Telkom made application for the review of the arbitrator?s award in the High court and the High Court held in Telkom?s favour that the arbitrator had committed gross irregularities. The irregularities that the court found that the arbitrator had committed related to the nature of the evidence that the arbitrator took into account; that the arbitrator failed to appreciate the import of South African law in relation to both contractual interpretation and to the amendment of written contracts. In setting aside the High Court's decision, the SCA found that the high court had disregarded the principle of party autonomy in arbitration proceedings and failed to give due regard to an arbitral award, this the court found to be contrary to something our courts have consistently done since the early part of the 19th Century. The court found that an arbitrator 'has the right to be wrong' on the merits of the case and that the wrong interpretation of the agreement could not afford a ground for the review of an arbitrator's award by a court. The court found that the power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or wrongly; and to determine what evidence was admissible, rightly or wrongly. Without determining whether the arbitrator was correct or not, the SCA held that the errors of the kind complained of by Telkom had nothing to do with the arbitrator exceeding his powers; they are errors committed within the scope of his mandate. To illustrate, the court stated that an arbitrator in a 'normal' local arbitration has to apply South African law; if he errs in his/her understanding or application of the local law the parties have to live with that error. If such an error amounted to a transgression of his powers it would mean that all errors of law are reviewable, which the court found would lead to absurdity in the processes of arbitration. The order of the High Court was set aside. Conclusion
It is therefore key to know who your arbiter is and have some measure of comfort that your arbiter will not be prone to commit errors of merits, interpretation of agreements and the applicable law.

Keywords: law

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VFV Mseleku serves on the A-Panel of attorneys of all the major banks and in this capacity we attend to bond registrations and, because of the profile of our Real Estate department, are able to negotiate and liaise with the financial institutions on behalf of our real estate clients. Advice on disputes and dispute resolutionWe understand that business people are not in business to be engaged in disputes.