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Disputes
User Guide   |   Documentation and Resources   |   Frequently Asked Questions  |  Previous Decisions
How was AFSA appointed to administer domain name disputes?
AFSA submitted an application for accreditation to the Department of Communication. This application was a response to Government Notice R.1166 dated 22 November 2006.

The application was guided by Chapter IV of the Alternative Dispute Resolution Regulations contained in the Electronic Communications and Transactions Act 25 of 2002.

AFSA submitted its application for accreditation on 15 December 2006, and was notified of its accreditation in February 2007. Thereafter, AFSA set about putting into place systems to support their arbitral role. This website, is one of the results of those efforts.

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Who appointed AFSA to administer arbitration services for domain name disputes?
AFSA was appointed to this role by the Department of Communication.

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What is the applicable piece of legislation?
The applicable Act is The Electronic Communications and Transactions Act 25 of 2002. This Act can be found in Government Notice R.1166 dated 22 November 2006.

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What is the nature of a .co.za domain name dispute?
(Refer to section 3 of the Electronic Communications and Transactions Act 25 of 2002)

A person who is registered as the owner of a .co.za domain name (registrant), must submit to dispute resolution proceedings if a complainant asserts that:

  1. The complainant has rights in respect of a name or mark which is identical or similar to the domain name and, in the hands of the registrant the domain name is an abusive registration; or
  1. the domain name, in the hands of the registrant is an offensive registration.

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What is the procedure for submitting a complaint with respect to an abusive or an offensive domain name to AFSA?
(Refer to section 16 of the Electronic Communications and Transactions Act 25 0f 2002.)

Any person may initiate a dispute subject to AFSA's supplementary procedure. This means that the person must initiate a dispute by following the formalities laid down by AFSA.

These formalities are laid out in AFSA's "Form A". They relate closely to the procedure laid down in the legislation referred to above. AFSA's "Form A" can be found elsewhere on this website.

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How does the AFSA appointed arbitrator decide whether a .co.za domain name registration is offensive or abusive?
In terms of section 4 of the Electronic Communications and Transactions Act 25 of 2002:

Factors which may indicate that a domain name is an abusive registration include:

  1. circumstances indicating that the registrant has registered or otherwise acquired the domain name primarily to:

    • sell, rent or otherwise transfer the domain name to a complainant or to a competitor of the complainant, or any third party, for valuable consideration in excess of the registrant's reasonable out-of-pocket expenses directly associated with acquiring or using the domain name;
    • block intentionally the registration of a name or mark in which the complainant has rights;
    • disrupt unfairly the business of the complainant; or
    • prevent the complainant from exercising his, her or  its rights;

  2. circumstances indicating that the registrant is using, or has registered , the domain name in a way that leads people or businesses to believe that the domain name is registered to, operated or authorised by, or otherwise connected with the complainant;

  3. evidence, in combination with other circumstances indicating that the domain name in dispute is an abusive registration, that the registrant is engaged in a pattern of making abusive registrations;

  4. false or incomplete contact details provided by the registrant in the whois database; or

  5. the circumstances that the domain name was registered as a result of a relationship between the complainant and the registrant, and the complainant has:

    • been using the domain name registration exclusively; and
    • paid for the registration of the domain name registration.

An offensive registration may be indicated if the domain name advocates hatred  based on race, ethnicity, gender or religion and/ or that constitutes incitement to cause harm.

There is a rebuttable presumption of abusive registration if the complainant proves that the registrant has been found to have made an abusive registration in three or more disputes in the 12 months before the dispute was filed.

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Are there factors which may indicate that the domain name is not an abusive registration?

In terms of section 5 of the Electronic Communications and Transactions Act 25 of 2002:

 

Factors, which may indicate that the domain name is not an abusive registration, include-

  1. Before being aware of the complainant's cause for complaint, the registrant has:

    • used or made demonstrable preparations to use the domain name in connection with a good faith offering of goods or services;
    • been commonly known by or legitimately connected with a mark which is identical or similar to the domain name; or
    • made legitimate non-commercial or fair use of the domain name

  2. the domain name is used generically or in a descriptive manner and the registrant is making fair use of it;

  3. that the registrant has demonstrated fair use, which use may include web sites operated solely in tribute to or fair criticism of a person or business; Provided that the burden of proof shifts to the registrant to show that the domain name is not an abusive registration if the domain name is identical to the mark in which the complainant assets rights, without any addition; and

  4. the registrant must rebut the presumption of section 4(3) of the Electronic Communications and Transactions Act 25 of 2002 by proving that the registration of the domain name is not an abusive registration.

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Does AFSA's mandate extend to the actual content of a website or is the mandate restricted to the domain name only?
(Refer to section 2 of the Electronic Communications and Transactions Act 25 of 2002)

AFSA's mandate is restricted to disputes concerning the registration and use of internet domain names only.

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Who appoints the adjudicator/s?
(Refer to section 20 of the Electronic Communications and Transactions Act 25 of 2002)

AFSA maintains and publishes a list of adjudicators, including their qualifications. This list must be made available to the public.

AFSA makes its appointment in each case based on the next available adjudicator, appointed by rotation from its list of adjudicators.

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Who are the adjudicators?
(Refer to sections 20 & 21 of the Electronic Communications and Transactions Act 25 of 2002)

An adjudicator is a suitably qualified person, appointed by AFSA to decide a dispute relating to an internet domain name.

An adjudicator must be impartial and independent in all the matters he/ she adjudicates. Therefore, it is incumbent upon the adjudicator to disclose any circumstances which may affect their impartiality/ independence. Where the adjudicator discloses circumstances which may impact upon his/ her impartiality or independence in a matter, AFSA will determine whether another adjudicator should be appointed.

AFSA, as part of its broader service, provides appropriate dispute resolution services to the public at large. As part of this service, AFSA maintains lists of eligible adjudicators according to categories of disputes eg: construction, divorce etc.

For domain name disputes, AFSA will publish a list of suitable adjudicators and their qualifications. Adjudicators will be appointed, by AFSA, from this list on a rotation basis, subject to individual availability. 

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Can I contact the adjudicator?
(Refer to sections 22 & 23 of the Electronic Communications and Transactions Act 25 of 2002)

No party to a dispute, or their representative, may communicate with an adjudicator.

All communications between the parties to a dispute and the adjudicator must be sent through AFSA in the formats determined by AFSA procedure for administering domain name disputes (See Form A and Form B).

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What is the difference between a "Statement of Intention to Appeal" and an "Appeal Notice"?
(Refer to section 32 of the Electronic Communications and Transactions Act 25 of 2002)

A statement of intention to appeal is a notice, in writing, which makes it clear that an appeal is requested. The statement of intention to appeal only contains the  written intention to appeal, it does not contain the grounds or reasons for the appeal.

The appeal notice sets out clearly the grounds or reasons for an appeal. It may not exceed 1000 words in length, and must set out detailed grounds for the appeal.  

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Where do I find the applicable documentation?
All the documentation required throughout the dispute process can be found on the current website: www.arbitration.co.za

Documents can also be made available in hard copy. Call The Arbitration Foundation of Southern Africa on (+27 11 320 0600).

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What if I have questions relating to .co.za  domain name disputes which are not dealt with on this website?
Please call the Arbitration Foundation of Southern Africa on + 27 11 320 0600.

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How long does AFSA take to adjudicate a .co.za domain name dispute?
The overall time taken to adjudicate a dispute, and make a ruling varies from dispute to dispute. However the following process outline is provided as a guide. It is based on the maximum times allowed by the Electronic Communications and Transactions Act 25 of 2002 for each step in the process. The process is laid out schematically and in chronological order below, with the maximum times allowed for each step in brackets:
  1. Notification of dispute sent to AFSA
  2. AFSA Checks that the dispute complies with the provisions of the Electronic Communications and Transactions Act 25 of 2002.
  3. AFSA also checks that the fixed fee in respect of this dispute has been paid. (10 Days)
  4. Complainant fixes any non-compliance found by AFSA in the dispute submission. (5 Days)
  5. AFSA notifies the complainant, registrant (registered owner of the .co.za domain name in the WHOIS database), the second level domain administrator, and the Department of Communication of the dispute.
  6.  The registrant submits a response to AFSA (20 Days)
  7. AFSA submits the response from the registrant to the complainant.
  8. Complainant submits a reply to the registrant's response. (5 Days)
  9. AFSA appoints an adjudicator to decide the dispute based on the documentation already submitted (2 Days)
  10. Adjudicator forwards his/ her decision to AFSA. (14 Days)
  11. AFSA Communicates the adjudicator's decision to both the complainant, respondent and the Department of Communication.
  12. AFSA forwards the adjudicator's decision to the relevant second level domain administrator (5 Days)
  13. Waiting period (5 Days)
  14. Second level domain administrator  implements the decision (2 Days)

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How are the decisions of the adjudicator enforced?
Decisions of the Adjudicator are enforced by the second level domain administrator.

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What are the costs associated with AFSA's dispute resolution process?
The fixed fee, payable by the complainant, depends on the number of adjudicators chosen:
    1.  R10 000.00 for one adjudicator
    2.  R24 000.00 for three adjudicators

Otherwise the fixed fee payable by both the complainant and the registrant is:

    1.  R12 000.00  payable by both the complainant and the registrant where the complainant elects to have one adjudicator and the registrant elects to have three adjudicators.

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What if the respondent chooses not to co-operate with the dispute resolution process?
(Refer to section 28 of the Electronic Communications and Transactions Act 25 of 2002)

If the respondent fails to comply with any of the time periods outlined in the Electronic Communications and Transactions Act 25 of 2002, then the adjudicator must nevertheless still proceed to a decision on the dispute. This amounts to a decision in default.   

The same principle applies if the respondent fails to comply with any time period established by the adjudicator.

Where any party does not comply with any provision or requirement of the Electronic Communications Act 25 of 2002, or does not comply with any request from the adjudicator, the adjudicator may draw such inferences from this fact as he or she considers appropriate.

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What if either of the parties wish at any time to withdraw from the process or settle the matter or otherwise terminate the matter?
(Refer to sections 12 (1) & 31 of the Electronic Communications and Transactions Act 25 of 2002)

Withdrawal

When the complainant first submits a notice of dispute, AFSA will ensure that the dispute complies with the provisions of the Electronic Communications and Transactions Act 25 of 2002. If it does not comply with the provisions of these regulations, AFSA will notify the complainant of the nature of the non-compliance.

The complainant then has five days within which to correct any non-compliance. Should the complainant not submit such corrections to AFSA within the five day time period, then the dispute is deemed to have been withdrawn.

In the case of withdrawal, AFSA will refund the complainant the fixed fee already paid, less administration charges.

Settlement

Settlements between the parties must be in writing, and a copy of the settlement signed by both parties must be delivered to AFSA. AFSA will confirm the validity of the settlement agreement between the parties.

Where the parties agree to a settlement before the appointment of an adjudicator for the dispute, AFSA will terminate the dispute and refund the complainant the fixed fee less administration charges.
  
Where the parties agree to a settlement after the appointment of an adjudicator but before the adjudicator's decision is made, the adjudicator will then terminate the dispute and the parties will forfeit all fees paid to AFSA to date.

Termination

If, before the adjudicator's decision is made, it becomes unnecessary or impossible to continue with the dispute, the adjudicator must terminate the dispute, unless either party objects to such termination.

Where a dispute is terminated, the parties forfeit all fees paid to date.

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What if either party initiates court proceedings relating to the .co.za domain name dispute during the currency of the dispute being administered by AFSA?
(Refer to section 33 of the Electronic Communications and Transactions Act 25 of 2002)

Where legal proceedings are initiated with respect to a .co.za domain name which is the subject of a dispute being administered under the Electronic Communications and Transactions Act 25 of 2002, the adjudicator must suspend the dispute immediately.

Any party which initiates such legal proceedings, must notify AFSA promptly.

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Does this process only apply to .co.za domain name disputes?
(Refer to section 2 of the Electronic Communications and Transactions Act 25 of 2002)

 

Only internet domain names registered in the .co.za second level domain are open to alternative dispute resolution under the Electronic Communications and Transactions Act 25 of 2002. Therefore AFSA can only adjudicate .co.za domain name disputes.

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What if either party is unhappy with the results of this process?
(Refer to section 32 of the Electronic Communications and Transactions Act 25 of 2002)

Either party has the right to appeal a decision given by a single adjudicator. To begin the appeal process, the dissatisfied party must submit a statement of intention to appeal together with the appeal fee. Within 15 days thereafter, the dissatisfied party must submit an appeal notice.

It is important to note that only the decision of a single arbitrator can be appealed. Any decision given by three arbitrators is final, and can not be appealed.

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What is a "Statement of Intention to Appeal"?
(Refer to section 32 of the Electronic Communications and Transactions Act 25 of 2002)

A statement of intention to appeal contains such information as makes it clear that an appeal is requested. The statement of intention to appeal does not contain the actual grounds or reasons for appeal.

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What is an "Appeal Notice"?
(Refer to section 32 of the Electronic Communications and Transactions Act 25 of 2002)

An appeal notice sets out, in writing, detailed grounds and reasons for the appeal. The appeal notice may not exceed 1000 words.

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What is an "Appeal Notice Response"?
(Refer to section 32 of the Electronic Communications and Transactions Act 25 of 2002)

An appeal notice response sets out, in writing, detailed grounds and reasons why the appeal should be rejected. An appeal notice response is submitted by the other party, after having sight of the appeal notice submitted by the party wishing to appeal the adjudicator's decision.

An appeal notice response may not exceed 1000 words.

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What is the appeal process and how long does it take?
The overall time taken to adjudicate an appeal, and make a ruling varies from appeal to appeal. The following process outline is provided as a guide only. It is based on the maximum times allowed by the Electronic Communications and Transactions Act 25 of 2002 for each step in the appeal process. The process is laid out schematically and in chronological order below, with the maximum times allowed for each step in brackets:
  1. Statement of intention to appeal and the appeal fee are submitted to AFSA by either party to a dispute.
  2. Appeal notice is submitted to AFSA by the party who submitted the statement of intention to appeal. (15 Days)
  3. AFSA forwards the statement of intention to appeal or the appeal notice to the other party. (3 Days)
  4. The other party submits an appeal notice response to AFSA. (10 Days)
  5. AFSA appoints an appeal panel of three adjudicators.
  6. The appeal panel returns its decision. (20 Days)

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How does AFSA choose the appeal panel adjudicators?
(Refer to section 32 of the Electronic Communications and Transactions Act 25 of 2002)

The appeal panel adjudicators must be impartial. They must consist of:

  1. The chairperson of AFSA's group of adjudicators for .co.za domain name disputes.
  2. The next available two adjudicators appointed by rotation from AFSA's list of adjudicators for .co.za domain name disputes.

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Will the appeal panel take into consideration any new evidence presented during the course of the appeal?
(Refer to section 32 of the Electronic Communications and Transactions Act 25 of 2002)

The appeal panel will not take into consideration any new evidence presented in the appeal notice or appeal notice response, unless they believe that it is in the interests of justice to do so.

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Is it possible to take the decision of an appeal panel on further appeal?
(Refer to section 32 of the Electronic Communications and Transactions Act 25 of 2002)

In terms of the Electronic Communications and Transactions Act, appeal decisions cannot be subject to any further appeal.

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Are previous decisions available to the general public, and if so where can they be found?
AFSA intends to publish such of the adjudicators' decisions as will be of interest to other adjudicators and potential parties to a dispute. Decisions will be published in bulletins issued twice each year and made available for a nominal charge to interested parties.

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Must the adjudicator consider any precedents when deciding a co.za domain name dispute?
(Refer to section 13 of the Electronic Communications and Transactions Act 25 of 2002)

An adjudicator must consider and be guided by previous decisions made in terms of the Electronic Communications and Transactions Act (national decisions) and decisions made by foreign dispute resolution providers (foreign decisions).

Furthermore, an adjudicator must be guided by national, foreign and international law.

Where an adjudicator considers any of the above sources, he or her decision must reference those sources fully.

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Do I have to engage a legal professional to represent me and present my complaint/ response to AFSA?
It is not necessary for the complainant or respondent to engage legal representative to put their cases to AFSA. The .co.za dispute resolution process has been designed to be as accessible as possible to the general public.

What is required is for a complainant or respondent to be able to clearly communicate the nature and detail of the dispute, or their response to allegations contained in the dispute submission.

The adjudicator must base his/ her decision on such written information as the complainant and respondent make available. It is therefore imperative that both the complainant and respondent make comprehensive submissions, clearly stating their complaints or responses.

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May I submit my complaint/ response in a layout that is convenient to me?
AFSA aims to provide an efficient .co.za domain name dispute resolution service. To this end, AFSA has custom designed documentation which allows the complainant or respondent to clearly and logically set out the basis and detail of their complaint/ response (See Form A and Form B).

These documents are made available together with a supplementary procedure explaining how to complete them. All documents can be made available in hard copy or electronic formats on request.

AFSA asks the complainant and respondent to be sure to use AFSA's own documentation in order to facilitate the effective and efficient resolution of .co.za domain name disputes.

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