Disputes emanating from commercial leases in SA

Firstly, apologies for being conspicuous by my absence and for being somewhat less than my normal prolific self with posts of late! I have been very busy as I will report in my next post.

I am taking time out from eDiscovery, per se, to comment upon this area and you may be wondering as to the reason. Well, as I mentioned in my last post when I referred to LexNove and Whipping the Cat, I like innovative thinking within the law especially when technology is used. Therefore, I was delighted to meet Gideon Pretorius recently, and exchange communications with Advocate Ben Ridgard. They are two of the founders of The Tribunal of Commercial Property - and the independent Custodian and adviser is Judge Willem Van Der Merwe.

This is such a refreshing, practical, innovative piece of successful thinking. My information is that it was borne out of frustration at the slow system (and therefore high cost) here when a matter of this nature arises. I have seen in the UK, and other jurisdictions, whereby parties can legitimately elongate a matter within the system in the hope that the other side will either get fed up, run out of cash or die! Gideon tells me that it is common for a dispute of this nature to take anything up to 3 years before it can be aired in Court. It is not unusual to see disputes whereby, for example, the Tenant complains about work needing to be done on the property by the Landlord and eventually escalates it by refusing to pay rent. What we have then, is a situation whereby each side has a claim against the other and it is this type of claim and counterclaim which gives rise to the kind of deals and high costs that make everyone wonder if it is worth pursuing. 

What is good about the Tribunal is that it takes 12 weeks from beginning to end, with fixed fees, and each party can upload their claim and supporting documents. I also like that the 27 Arbitrators are all skilled and experienced Counsel from various Bars across SA, and all personally selected by Judge Van Der Merwe. It is difficult to see how anyone involved in genuine dispute of this nature would not avail themselves to this procedure, and of course it would be best if relevant clauses agreeing to refer disputes to the Tribunal were inserted into the Lease in the first instance. I gather that the Tribunal has precedent clauses for annexure and insertion. Gideon also informs me that it is used, not just for Lease disputes but other property related disputes.

I aim to continue discussions with Gideon and Adv Ben as they wish me to look at any way of improving their system using my knowledge of electronic documents and I will be very happy to do so.

Meanwhile I am pleased to have looked at this matter and even more pleased to recommend its use in appropriate cases.