Dispute resolution

In this time of complex relationships between individuals, companies and other organisations, it is becoming increasingly important to consult a professional dispute resolution law firm to avoid costly disagreements.

Regarded as one of South Africa’s leading dispute resolution teams, Bowman Gilfillan’s attorneys are well-placed to offer our clients outstanding advice, whether strategic or general. This advice is coupled with professional and efficient legal service, whether in a court room, arbitration, tribunal hearing, dispute resolution forum or mediation.

The dispute resolution department’s assistance is sought in all areas of law, but most notably in the following areas:

Administrative, public law and regulatory
Bowman Gilfillan regularly represents clients in proceedings before statutory bodies that regulate diverse areas of economic and social activity. These include:

  • the Competition Commission and Competition Tribunal
  • the International Trade Administration Commission
  • the Financial Services Board
  • the Securities Regulation Panel
  • the Independent Communications Authority
  • the Human Rights Commission
  • the Medicines Control Council
  • the Commission on the Restitution of Land Rights
  • the Department of Health’s Pricing Committee
  • various gaming and gambling regulatory bodies

We also act for clients in High Court reviews of the conduct of such regulatory authorities, whose acts and decisions must be lawful, rational and procedurally fair.

Alternative dispute resolution
The commitment that our dispute resolution lawyers give to clients is to identify and pursue the most effective means possible of avoiding or resolving disputes. Alternative Dispute Resolution (ADR) refers to a wide range of processes that may be called upon to give effect to this commitment. ADR processes include:

  • arbitration (in its various forms)
  • judicial appraisal
  • expert determination
  • ombudsman services
  • med-arb
  • neutral fact finding
  • early neutral evaluation
  • mediation (in its various forms)
  • executive tribunals
  • independent interventions
  • assisted stakeholder dialogue
  • brokered talks
  • independent review
  • relationship building

ADR is flexible, and specific processes can be designed to suit complex disputes in almost any situation in which conflict or disputes may arise. Our dispute resolution lawyers believe that where there is willingness to resolve a dispute or to take the necessary steps to prevent a dispute from arising, there is always a process that can be found or designed that is suitable to achieve that end. The key is to identify a process that is likely to be most effective, particularly in time and cost, to achieve the desired objective.

Antitrust and competition
Lawyers in Bowman Gilfillan’s competition law practice represent clients in a variety of matters before the Competition Tribunal, a statutory body created in terms of the Competition Act 89 of 1998. This representation takes the form of defending clients against allegations of anti-competitive behaviour in contravention of the Competition Act, seeking leave to intervene (on behalf of a client which is an interested party) in cases in which the Competition Commission or a third party alleges that an entity is engaging in anti-competitive behaviour, and representing parties in large merger proceedings. Dispute resolution lawyers in this practice are not only well versed in the statutory framework of competition legislation, but also draw from the litigation and administrative law knowledge and experience of other members of the team.

Arbitration (local and international)
Arbitration is an alternative dispute resolution process where parties appoint an arbitrator or a panel of arbitrators to make a ruling which, in the absence of an agreement to allow for an appeal, is final and binding.

Arbitration has been a popular method of resolving disputes, particularly in the employment, construction and engineering sectors.

A number of the directors of the firm are members of the Association of Arbitrators and have significant expertise in domestic arbitrations. The firm is also becoming increasingly involved in international arbitrations. On account of the time that it takes to get to trial, as well as the appeal procedures involved, arbitration is regarded as a speedy and effective means of resolving disputes.

Bankruptcy, restructuring and insolvency
Dispute resolution is not a concept that one would normally expect to fall within the insolvency and business restructuring practice area. However, pending the implementation of the anticipated business rescue provisions, dispute resolution is utilised. Arrangements that are advantageous to both the debtor and the general body of creditors can be reached outside of the formal liquidation process. Judicial management is still a limited option and the threat of liquidation proceedings is often a catalyst to bring the parties to the table to implement a settlement.

Commercial litigation
At Bowman Gilfillan, we acknowledge that, despite the most well thought out commercial plans, disputes are inevitable. Our team of commercial litigation specialists are all well placed to analyse commercial litigation disputes and identify creative solutions that, wherever possible, prevent disputes from escalating to the point where they have to be resolved by a court. If court-based litigation is ultimately unavoidable, our approach remains to attempt to resolve any dispute in a cost-effective manner aimed at generating results that are commercially relevant to our clients’ needs.

Commercial property and real estate
In the practice area of commercial property and real estate law, we have attorneys who offer specialist dispute resolution advice and solutions – litigation, arbitration and mediation — in commercial property and real estate disputes. Our services include a full spectrum of services that are pertinent to this practice area, including:

  • disputes arising out of lease agreements
  • evictions (whether in accordance with PIE, SETA or the common law)
  • acquisitions
  • disposals
  • property developments
  • construction
  • regulatory matters (rates, rezoning, sub-division)
  • general contractual arrangements pertaining to property

Constitutional advice and litigation
Since the advent of democracy, constitutional law has become central to our understanding of the law. It literally stretches the entire legal landscape from exercise of power by the state, statutory interpretation, delictual liability of the state arising of conduct state officials to legality of contractual provisions. At Bowman Gilfillan, we are appropriately skilled to provide advice and guidance on these questions of law. But our approach to constitutional law is not theoretical, it is focused on the practical effects of the constitution in relation to our clients’ needs. We represent clients in litigation at the High Court, Labour Court, Supreme Court of Appeal and, finally, Constitutional Court. Next time you experience an apparently intractable constitutional question, contact a dispute resolution lawyer at Bowman Gilfillan.

Construction and engineering
We have a dedicated construction law group spanning both transactional and dispute resolution disciplines. Our skilled and experienced team of construction and engineering lawyers provide specialist advice and assistance in relation to construction and engineering disputes. Our diverse team includes mediators, arbitrators and litigators.

Our expertise relates to the entire spectrum of construction and engineering law, and the related regulatory environment. It includes a thorough knowledge of the standard forms of contract, including FIDIC, the NEC, the SAICE General Conditions of Contract and the JBCC.

Drawing on the diverse expertise of the Construction Law Group partners, who have an in-depth understanding of issues that present themselves in the construction and engineering environment, we are able to deliver relevant and practical advice and insight efficiently and cost–effectively.

Employee benefits, pensions and medical aid dispute resolution
The employee benefits group practises commercial mediation, arbitration and litigation in respect of pension, healthcare and other benefits-related disputes. Our benefits lawyers are recognised as practitioners of choice to represent parties in the High Court, the Labour Court, the Equality Court, employment tribunals, section 15K (pension surplus) tribunals and before the appeal organs of the Financial Services Board and the Council for Medical Schemes. We have experience in lobbying the regulators regarding legislative interpretation and policy formulation to minimise disputes.

Employment dispute resolution
The employment law department principally deals with disputes arising out of the employment relationship. Many of these disputes culminate in litigation in the Commission for Conciliation, Mediation and Arbitration (CCMA), the Labour Court, the Labour Appeal Court, the Pension Funds Adjudicator, the High Court or private arbitration. We assist and represent parties throughout the process of dispute resolution. The disputes include issues regarding dismissals, discrimination, strikes, the review of CCMA arbitration awards, wages and collective bargaining, executive incentive schemes and medical and retirement benefit funds.

Environment, mining, energy and natural resources
Members of this practice area regularly appeal and High Court reviews of decisions taken by:

  • the Department of Water Affairs
  • the provincial environmental authorities
  • the Department of Mineral Affairs
  • regulatory authorities such as the National Energy Regulator and the Nuclear Energy Regulator
  • the Department of Environment Affairs and Tourism

We have experience litigating in the High Court on constitutional aspects of environmental rights, water rights and socio-economic rights. We have successfully appealed and defended appeals of environmental impact assessment decisions and taken such decisions on review to the High Court. We also have experience defending criminal prosecutions related to pollution and unpermitted activities.

Forensics and white-collar crime
Our approach to forensic investigations aims to reduce, control, and prevent white-collar crime such as:

  • fraud
  • theft
  • breach of trust
  • the corruption of public officials
  • the insolvency process
  • securities fraud
  • counterfeiting

Our services include:

  • fraud prevention and detection
  • computer forensics
  • forensic audit and investigation
  • procurement services
  • human resources audits
  • fraud reporting
  • civil loss recovery
  • criminal action
  • employment law services

The single most effective and long-term investment any organisation can make is to empower its people with knowledge and understanding with regard to the fight against economic crime. Our services accordingly include comprehensive fraud training.

Information technology
At present, IT-related disputes can be settled either by way of arbitration or High Court litigation. The key to successful IT dispute resolution is technical understanding of IT issues. Our IT dispute resolution lawyers all have an understanding of IT and take a keen interest in IT developments. This means that in any IT-related dispute, we are able to offer a level of understanding and expertise to ensure that clients receive the best outcome.

International trade
The lawyers in our international trade law practice have extensive experience in international trade dispute settlement, including at the World Trade Organization, all of the European Union institutions, particularly the European Commission and the International Trade Administration Commission of South Africa, involving a wide range of international trade issues such as anti-dumping, subsidies and safeguards.

Maritime and transport
Conflict is part and parcel of international shipping and trade. Disputes are generally multi-faceted – often involving numerous parties and jurisdictions. For over a century, the Maritime and Transport Department at Bowman Gilfillan has met the demands of the industry by providing dispute resolution services to our extensive range of local and international clients. We strive to solve problems in a manner that is efficient, commercially sound and cost-effective.

We are one of the largest dedicated shipping and transport legal teams in the country and have expertise in the following areas:

  • maritime casualties — collisions, groundings and salvage
  • ship arrests
  • bills of lading and charter-party disputes
  • hull and cargo insurance
  • ship mortgage foreclosures
  • Protection and Indemnity (P&I)
  • Personal injury
  • Customs and excise
  • Clearing and forwarding

As ship casualty experts, we concentrate on avoiding legal problems before they start by operating a 24-hour emergency response team.

Media, entertainment and sport
Dispute resolution through means other than court-based litigation plays an important role in the world of media, entertainment and sport. The privacy afforded by dispute resolution is invaluable since the negative publicity surrounding public figures involved in litigation is often more harmful than the outcome of the litigation itself.

Mediation is a key alternative dispute resolution process. Surprisingly, in South Africa it has been used mainly in labour disputes, matrimonial disputes, community disputes and political disputes. While mediation has flourished in these areas, with the result that South Africa has produced some of the foremost mediators in the world, little progress has been made to date in putting the process to use in commercial disputes. But this is changing fast – with Bowman Gilfillan at the forefront of the establishment and growth of commercial mediation as a centreal process to the resolution of complex commercial disputes. Bowman Gilfillan’s dispute resolution lawyers have driven the introduction of internationally accredited training of commercial mediators — by the Centre for Dispute Resolution (CEDR), the leading ADR body in the UK and arguably in Europe — and the establishment of a panel of commercial mediators. A Bowman Gilfillan partner is co-chair of the African Mediation Association, an independent association of mediation bodies across the continent. The outstanding success of mediation in resolving complex commercial disputes, including cross-border or multi-jurisdictional disputes, is indicative of the important role it will play on the South African dispute resolution landscape.

Medico legal
Bowman Gilfillan represents a large international medical professional indemnity association and furnishes medico-legal advice to its members in South Africa. The membership includes doctors, dentists, psychologists and other health professionals in private practice as well as in the employ of State institutions. The assistance furnished to health professionals most often relates to complaints to professional bodies, civil claims in the High Court and Magistrates’ Courts, and statutory enquiries arising from alleged malpractice and/or negligence.

Pharmaceuticals and healthcare

Bowman Gilfillan’s pharmaceutical practice has extensive experience in pharmaceutical law and healthcare law and regulation, and advises on all aspects of the law, including:

  • general regulatory issues
  • product registrations
  • professional negligence by doctors and other healthcare professionals
  • medical schemes
  • hospitals
  • antiretrovirals
  • constitutional and administrative law issues surrounding pharmaceuticals and healthcare

The tax department represents taxpayers in alternative dispute resolution proceedings. It regularly acts on behalf of taxpayers by lodging objections, appeals and review applications against tax assessments. The tax department regularly represents taxpayers in negotiations with the South African Revenue Service (SARS) regarding all categories of tax. The tax department has represented taxpayers in the Tax Court, the High Court, and the Supreme Court of Appeal, and has successfully lobbied the National Treasury and SARS for legislative changes on many occasions.

Technology, media and telecommunications
Bowman Gilfillan’s technology, media and telecommunications law practice area has been at the forefront of the development of South Africa’s broadcasting and telecommunications jurisprudence for over a decade. The firm has been involved in numerous High Court review applications, as well as appeals to the Supreme Court of Appeal and the Constitutional Court, in respect of regulatory decisions in this area of the law. In addition, the firm has represented clients in proceedings before the Broadcasting Monitoring and Complaints Committee and its successor, the Independent Communications Authority of South Africa’s (ICASA) Complaints and Compliance Committee.

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