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ORDINANCE No. 24 of 1904,
To Provide for the Settlement of Differences by Arbitration.
PRELIMINARY. 1. So much of any law as is repugnant to or inconsistent with the provisions of this Ordinance shall be and is hereby repealed.
2. In this Ordinance, unless a contrary intention appears :
written agreement to submit present or future differences to arbitration, whether
an arbitrator is named therein or not. Court" means the Supreme Court, the Witwatersrand
High Court and any Circuit Court hereafter estab
lished in this Colony. * Judge” means a Judge of the Supreme Court. “official referee means a referee appointed by the Court
or a Judge thereof. “special referee" means any particular person appointed
to be a referee in any particular matter.
REFERENCES BY CONSENT OUT of Court. 3. A submission, unless a contrary intention is expressed therein, shall be irrevocable except by leave of the Court or a Judge or by consent of all the parties thereto, and shall have the same effect in all respects as if it had been made an Order of Court.
4. A submission, unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the Schedule to this Ordinance so far as they are applicable to the reference under the submission.
5. Where a submission provides that the reference shall be to an official referee, any official referee to whom application is made shall, subject to any Order of Court or a Judge, hear and determine the matters agreed to be referred.
6. If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any Court, against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred to arbitration, any party to such legal proceedings may, at any time after appearance, and before delivering any pleadings, or taking any other steps in the proceedings, apply to that Court to stay proceedings, and that Court or a Judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings.
7. Criminal matters, so far as the prosecution or punishment thereof is concer
erned, shall not be submitted to arbitration, nor without special leave of the Court shall any of the following matters be submitted to arbitration, namely :
(a) matters relating to status ;
disability may be interested.
8. In any of the following cases :
(a) where a submission provides that the reference shall
be to a single arbitrator and all the parties do not after differences have arisen concur in the appointment of an arbitrator ;
(b) if an appointed arbitrator fails or refuses to act or
is incapable of acting or dies, and the submission does not show that it was intended that the vacancy should not be supplied and the parties do not supply
the vacancy ; (c) when the parties or two arbitrators are at liberty to
appoint an umpire or third arbitrator and do not appoint him in any case where such appointment is requisite for the decision of the matters in dispute
or the due conduct of the arbitration ; (d) when an appointed umpire or third arbitrator fails or
refuses to act or is incapable of acting or dies, and the submission does not show that it was intended that the vacancy should not be supplied and the parties
or arbitrators do not supply the vacancy ; any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint, or, if agreement be necessary, to agree in the appointment of an arbitrator or umpire or third arbitrator.
If the appointment is not made or agreed to, as the case may be, within seven clear days after the service of the notice, the Court or a Judge may, on application of the party who gave the notice, and upon notice to the other party, appoint an arbitrator, umpire or third arbitrator, who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties.
9. When a submission provides that a reference shall be to two arbitrators, one to be appointed by each party, then, unless the submission expresses a contrary intention :
(a) if either of the appointed arbitrators fails or refuses
to act or is incapable or acting or dies, the party who appointed him may appoint a new arbitrator in
his place ; (6) if on such reference one party fails to appoint an
arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party
who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent ;
provided that the Court or a Judge may set aside any appointment made in pursuance of this section.
10. Every arbitrator and umpire must be and continue throughout th reference to be disint ted with reference to the matters referred, and the parties to the reference and any party to reference may require any arbitrator or umpire to make
declaration before beginning or continuing his duties as such arbitrator or umpire that he has no interest, direct or indirect, in the matters referred, or in the parties to the reference, and knows of nothing disqualifying him from being impartial and disinterested in the discharge of such duties ; provided always that any party may expressly waive any right to object to any arbitrator or umpire on the grounds of interest or the like.
11. The Court may at any time, upon motion, remove any arbitrator or umpire against whom a just ground of recusation is found to exist, or who has misconducted himself in connection with the matters referred to arbitration.
12. The arbitrator or umpire acting under a submission shall, unless the submission expresses a contrary intention, have power :
(a) to administer oaths, or to take the affirmations of the
parties and witnesses appearing ; and (b) on the application of either party to appoint a Com
missioner to take the evidence of a person residing outside the Colony, and forward the
to arbitrators in the same way as if he were a Commis
sioner appointed by the Court ; and (c) to state an award as to the whole or part thereof in
the form of a special case for the opinion of the
Court; and (d) to correct in any award any clerical mistake or error
arising from any accidental slip or omission.
13. Any party to a submission may take out process of the Court for the attendance of witnesses, but no person shall be compelled under any such process to produce any document which he could not be compelled to produce on the trial of any action.
14. The time for making an award may from time to time be enlarged by order of the Court or a Judge, whether the time for making the award has expired or not.
15. (1) In all cases of reference to arbitration the Court or a Judge may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire.
(2) When a matter is remitted as aforesaid the arbitrators or umpire shall, unless the order of remittal otherwise directs, make their award within three months after the date of such order.
16. (1) Where an arbitrator or umpire has misconducted hirr. self the Court may remove him.
(2) Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the Court may set the award aside, and may award costs against any such arbitrator or umpire personally.
17. An award which has been made a rule of Court may be enforced in the same manner as a judgment or order to the same effect.
18. Where the submission does not provide in what place the arbitration shall be held the arbitrators or umpire may from time to time decide upon such place as may be reasonably accessible to the parties and convenient for the purposes of the reference.
REFERENCES UNDER ORDER OF COURT.
19. (1) Subject to Rules of Court, the Court or Judge may refer any question arising in any cause or matter (other than a criminal proceeding) for enquiry or report to any official or special referee or officer of the Court.
(2) The report of an official or special referee or officer of the Court may be adopted wholly or partially by the Court or a Judge, and with or without such amendments as may to the Court or Judge seem meet, and if so adopted may be enforced as a judgment or order to the same effect, or the Court or a Judge may remit the report for further consideration, or make such other order thereon as may be just. 20. In any cause or matter (other than a criminal proceeding): (a) if all the parties interested who are not under
disability consent; or (6) if the
matter requires any prolonged examination of documents, or any scientific, technical or local investigation which cannot, in the opinion of