AFSA Home Page


Home
About Arbitration and Mediation
Rules and Clauses
Facilities and Rates
.co.za Disputes
Training
Members
FAQ
Projects and Services
News
Links
Branches
Litigation Support
Contact Us
Founding Members and Directorate

Disputes
User Guide   |   Documentation and Resources   |   Frequently Asked Questions  |  Previous Decisions 
Introduction

The Arbitration Foundation of South Africa (AFSA) is proud to have been appointed, by the Department of Communications to provide alternative dispute resolution services for .co.za domain name disputes.

As the electronic age dawns, it is imperative for service providers to adapt their offerings to better suit the times.  Through its administration of .co.za domain name disputes, AFSA wishes to show, in a most tangible way, its readiness do just that.

The administration of .co.za domain name disputes under the Electronic Communications and Transactions Act 25 of 2002, stretches the boundaries of current ADR philosophy and practice. In this new and streamlined process, the parties must submit written arguments in prescribed format within truncated timeframes, and assert their rights over strings of data bits contained in the ether of a WHOIS database.

This philosophy is far removed from the drawn out rigours of traditional litigation, or even the expedited processes of arbitration, mediation and facilitation. It is therefore appropriate that AFSA makes this User Guide available to the public, in an effort to introduce it's adjudicative role, the truncated timeframes associated with each step of the process and the overall suitability of this type of service to internet based disputes.

We at AFSA have thoroughly enjoyed our work in developing this type of dispute adjudication, and making it available to the public at large. We ask you to join us, to embrace the concept of efficiently adjudicating .co.za domain name disputes and add yet another proud chapter to appropriate dispute resolution in Southern Africa.

Top

A brief overview of the functions of AFSA and how it came to administer .co.za domain name disputes.

The Arbitration Foundation of Southern Africa was launched by the then Minister of Justice, Dr Dullah Omar, in October 1996. Its main purpose is to provide alternative dispute resolution mechanisms which are more speedy, effective, efficacious, less expensive and less antagonistic than judicial adjudication.

To this end, AFSA is a section 21 company, a corporate partnership between the legal profession, the accounting profession and the business community represented by SACOB.

AFSA's activities include:-

  • the administration of arbitrations and mediations;
  • the establishment and maintenance of panels of arbitrators and mediators drawn from the legal and accounting professions and from the business and labour communities;
  • publication and revision of Arbitration Rules and handbooks;
  • training in dispute resolution;
  • related initiatives in SADC;
  • regional and international joint venture projects;
  • public service on behalf of the AFSA/BAC Trust

Under Government Notice R.1166 dated 22 November 2006, the Department of Communications invited applications from potential service providers wanting to administer .co.za domain name disputes. AFSA, feeling it could make a valuable contribution in this regard, made application to the Department of Communications and was subsequently appointed as .co.za domain name dispute administrators.

Top

Introduction to .co.za domain name disputes, who the parties are and how the adjudication process works?

.co.za Domain name disputes are disputes related to internet domain names registered with .co.za suffixes. Each dispute exists between a registrant and a complainant. The registrant is the person whose details are registered as the owner of the .co.za domain name in the WHOIS database. The complainant is a person who lodges a complaint, with AFSA or another service provider appointed by the Department of Communications, in terms of the Electronic Communications and Transactions Act 25 of 2002.

Such a complaint must allege that the .co.za domain name registration in contention amounts to either an offensive or an abusive registration. The complaint must also allege that the complainant has rights in respect of a name or mark which is identical or similar to the domain name in contention.

In order to have such a dispute adjudicated, the complainant must choose a service provider from those approved by the Department of Communications. AFSA is one such service provider.

Let us assume, for the purposes of this discussion that the complainant chooses AFSA to adjudicate his/ her dispute, then:
       
A)  The complainant will initiate the dispute administration process by completing and submitting to the AFSA secretariat the Complainant's Initiation of Dispute (otherwise known as "Form A").

The Form A is accompanied by its own supplementary procedure, explaining AFSA's requirements for successfully submission of the document. The Form A is intended to initiate the dispute adjudication process in a logical manner, by:-

  • setting out the complainant's details;
  • setting out contact details for the complainant's representative (if any);
  • setting out the registrant's details as found in the WHOIS database;
  • allowing the complainant to select their preferred means of communication with AFSA, such as facsimile or registered post amongst others;
  • indicating whether they prefer the dispute to be adjudicated by one or by three adjudicators (there are significant cost implications associated with this election);
  • specifying the domain name which is the subject of the dispute at hand;
  • identifying the second level domain name administrator with whom the domain name is registered;
  • allowing the complainant an opportunity to specify in detail the basis of the complaint;
  • allowing the complainant an opportunity to specify in detail whether the basis of the complaint is an offensive or an abusive registration;
  • identifying whether any other legal processes have been initiated or terminated relating to the domain name that is the subject of the dispute;
  • provide proof of payment of the fixed fees payable depending on the number of dispute adjudicators chosen;
  • confirming that the information provided is, to the best of the complainant's knowledge, true and correct;

B) When AFSA has received both the complainant's Form A and the fixed fee, AFSA will assess the Form A (notification of dispute) against the provisions of the Electronic Communications and Transactions Act 25 of 2002 (the Act).

If the Form A complies with the Act, AFSA will forward a copy of the dispute together with an explanatory cover sheet to the registrant. The date of such transmission becomes the date of commencement of the dispute. AFSA notifies the complainant, registrant, second level domain administrator and the Department of Communications of the date of commencement of the dispute.

Where AFSA finds that the Form A does not comply with the requirements of the Act, AFSA will notify the complainant of the nature of the non-compliance. The complainant then has five days to correct any non-compliance, failing which the dispute is deemed to have been withdrawn.

Where AFSA does not receive the fixed fee from the complainant within 10 days of receiving the Form A, the dispute is deemed to have been withdrawn and terminated.

C)  Within 20 days of the date of commencement of the dispute, the registrant must complete and submit a written response to AFSA. This written response is submitted on AFSA's Form B.

The Form B is accompanied by its own supplementary procedure, explaining AFSA's requirements for the successful submission of the document. The Form B is intended to allow the respondent to rebut the allegations contained the Complainant's Initiation of Dispute document in a logical manner. Form B is laid out as follows:-

  • the registrant's details;
  • contact details of the registrant's representative (if any);
  • contact details of the registrant's technical contact as per the WHOIS database;
  • contact details of the registrant's administrative contact as per the WHOIS database;
  • contact details of the registrant's billing contact as per the WHOIS database;
  • the registrant's preferred means to receive communications from AFSA, such as facsimile or registered post amongst others;
  • whether the registrant prefers the dispute to be adjudicated by one or by three adjudicator (there may be significant cost implications associated with this election);
  • an opportunity for the registrant to provide a detailed response to the allegations and statements contained in the complainant's Form A;
  • an opportunity to identify whether any other legal processes have been initiated or terminated relating to the domain name that is the subject of the dispute;
  •  proof of payment of the fixed fees payable (if any) depending on the number of dispute adjudicators chosen;
  • confirming that the information provided is, to the best of the respondent's knowledge, true and correct;

If the respondent does not submit a response (Form B) within 20 days of notification of commencement of the dispute, AFSA will appoint an adjudicator to decide the matter based on the information contained in the complainant's Form A only.

D) Upon receipt of the response, AFSA will forward such response to the complainant. The complainant then has five days to submit a reply to the registrant's response.

Upon the expiry of the five days, but no later than two days thereafter, AFSA will appoint an adjudicator/s to decide the matter.

Top

Who are the adjudicators, how are they appointed and how do they function?

AFSA maintains and publishes a list of adjudicators and their qualifications. Adjudicator's are appointed on a rotation basis subject to availability. Once adjudicator/s have been appointed, AFSA will notify the parties of the adjudicator appointed and the date by which the adjudicator must forward a decision.

No party to a dispute may communicate directly with an adjudicator. All communications between any party to a dispute and an adjudicator must be sent through the AFSA secretariat. There are no exceptions to this rule.

Adjudicators are required to be independent and impartial, and must disclose to AFSA any circumstance impacting negatively upon their independence and impartiality.

It is the function of the adjudicator to ensure that the parties are treated with equality and that each party is given a fair opportunity to present its case. Ultimately the adjudicator must decide the dispute in accordance with the principles of law.

It should be noted that in the event a party does not comply with the time periods established by the Act, or by the adjudicator, then the adjudicator must still proceed to a decision on the dispute. The adjudicator may draw appropriate inferences from the lack of compliance of any party during the adjudication process.

Top

The costs associated  with .co.za domain name disputes.

The complainant initiates a dispute by completing a Form A and submitting it to AFSA. On the Form A, he or she must elect whether they want the dispute to be adjudicated by one adjudicator or by three adjudicators.

If the complainant should elect on adjudicator only, then a fixed fee in the sum of R10 000.00 is payable to AFSA.

If the complainant should elect three adjudicators, then a fixed fee in the sum of R24 000.00 is payable to AFSA.

AFSA will only initiate a dispute when both the complete Form A and the appropriate fixed fee have been received in respect of that dispute.

In terms of the Act, the registrant is also given an opportunity to elect whether he or she wants the dispute to be adjudicated by one adjudicator or by three adjudicators. Such election is made on Form B - the registrant's response to the complainants statements and allegations.

Where the complainant elects on Form A to have the matter decided by one adjudicator, and the registrant elects on Form B to have the matter decided by three adjudicators then both registrant and the complainant must submit to AFSA a fixed fee in the amount of R12 000.00 each.

Should either party wish to appeal the decision of the adjudicator, a fixed fee of R24 000.00 is payable by that party.

Allowance is made for a complainant or a registrant to approach the Department of Communications, in writing, for financial assistance when lodging or defending a dispute.

Top

Lodging an appeal against the decision of the adjudicator/s

Both the registrant and the complainant have the right to appeal the decision given by a single adjudicator.  In contrast, the decision of three arbitrators is final and can not be appealed.

In order to lodge an appeal, either the registrant or the complainant must submit to AFSA a statement of intention to appeal together with the appeal fee of R24 000.00 .
The statement of intention to appeal makes it clear that an appeal is requested, but does not contain the actual grounds or reasons for appeal.

Within 15 days of submitting the statement to appeal to AFSA, the appeal notice must be submitted to AFSA. The appeal notice may not exceed 1000 words and it must set out the detailed reasons for the appeal.

AFSA will forward the statement of intention to appeal and the appeal notice to the other party within three days of receipt thereof (provided the fixed application fee has been received).

The other party may submit a response to the appeal notice within 10 days after receiving it from AFSA. The appeal notice response may also not exceed 1000 words and must set out detailed grounds and reasons why the appeal should be rejected.

Following the receipt of the appeal notice response, or the expiry of the deadline to do so, AFSA will appoint a panel of three adjudicators to decide the appeal. These adjudicators must be impartial and must consist of:

  1. the chairperson of AFSA's adjudication panel for this type of dispute;
  2. and the next available two adjudicators appointed by rotation from AFSA's list of adjudicators for this type of dispute.

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.

Appeal decisions must be returned by the appeal panel within 20 days of the appointment of the last adjudicator, following which they are forwarded by AFSA to the registrant, the complainant, the Department of Communications and the second level domain administrator.

Top

Implementing the decision of the adjudicator/s

Where the adjudicator decides that a disputed domain name should be transferred to the complainant , AFSA will communicate this decision to the second level domain administrator for implementation.

The second level domain administrator must implement the decision of the arbitrator, unless either party commences legal action in the High Court of the Republic of South Africa concerning the domain name.

In this case the adjudicator's decision will not be implemented until the second level domain administrator receives:-

  1. proof of a resolution or settlement between the parties;
  2. proof that the lawsuit has been dismissed or withdrawn;
  3. a copy of a court order.

Top

Back


Home  |   About  |   Rules and Clauses  |   Facilties and Rates  |   .co.za Disputes  |   Training  |   Members  |   F.A.Q
Projects and Services  |   News  |   Resources  |   Links  |   Branches  |   Litigation Support Services  |   Contact Us  |   Directorate and Administration
Contact AFSA