South Africa: Amendments To The Rules For The Conduct Of Proceedings Before The CCMA

Last Updated: 9 April 2015
Article by Brian Patterson, Irvin Lawrence, Ross Alcock and Stuart Harrison

Most Read Contributor in South Africa, September 2018

Amended Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) ("the Rules") were promulgated on 17 March 2015 and came into effect on 1 April 2015. New 'Guidelines on Misconduct Arbitrations' on how commissioners must deal with misconduct arbitrations have also been issued with effect from 1 April 2015, but these will be dealt with in a separate newsletter.

Some of the more noteworthy amendments to the Rules are discussed briefly below.

Serving and filing documents by email and SMS, and registered mail notifications

Service and filing of documents may now be effected by way of email. The relevant provisions of the Electronic Communications and Transactions Act, 2002 are, however, applicable in respect of any issues that may arise in relation to service by email.

In addition, the CCMA may now provide notification to parties in any manner prescribed in relation to the service of documents (eg by email) and, further, it may provide notice to parties by way of short message service (SMS). The CCMA has been doing this for some time, but this has now been formalised as a valid form of notification.

The Rules also state that, in relation to the 14-day and 21-day periods applicable in order to notify parties of conciliation and arbitration proceedings respectively, in instances in which notice of proceedings is sent by way of registered mail, an additional seven days must be allowed.

Disputes can no longer be dismissed where the referring party fails to attend conciliation

The requirement that parties must attend conciliations in person has been removed from Rule 13, as well as the reference to dismissal of the dispute in an instance in which the referring party fails to attend the conciliation proceedings. The "dismissal" provision has now been replaced with the words "conclude the proceedings by issuing a certificate that the dispute remains unresolved".

Proof of jurisdiction

Rule 14 now provides that a conciliating commissioner must require a referring party to prove that the CCMA has jurisdiction in an instance in which a jurisdictional issue has not been determined, provided that all jurisdictional issues requiring evidence may be deferred to arbitration. Strictly speaking, all jurisdictional issues require evidence, but it seems likely that in instances where the evidence is not common cause and oral evidence is required that it will be deferred to arbitration.

Non-compliance with a directive to file statements

Rule 19(3) now provides commissioners with a discretion to continue with a matter despite non-compliance with the CCMA or a commissioner's directive that the parties file statements. However, a party's non-compliance may be taken into account when considering costs at the conclusion of an arbitration hearing.

Representation at the CCMA

Rule 25, which deals with representation before the CCMA, has been amended to separately spell out the rights of representation for employers, unions and employers' organisations. Representation by an office bearer, official or member of a trade union remains permitted in instances in which the party is a registered trade union, although the rules now provide expressly that such representatives must have been authorised to represent the union. Representation by an office bearer or official or a director or employee of an employer that is a member of the employer's organisation is permitted for employers' organisations (although see the new qualification to this below).

Representation by a legal practitioner at arbitration continues to be permissible, subject to the same qualification relating to misconduct and incapacity dismissal arbitrations, but the new rules now preclude any person other than a legal practitioner from charging a fee or from receiving any financial benefit for agreeing to represent a party to proceedings before the CCMA.

A new, fairly widely framed power has been given to commissioners to exclude the rights of members of an employer's organisation to represent each other. Such representation can now be precluded where a commissioner believes that the representative joined the employer's organisation for the purposes of representing parties at the CCMA or where the representative's participation would be contrary to the purpose of the rule (which is stated as being to promote inexpensive and expeditious dispute resolution in a manner that is equitable to all parties); or is not in keeping with the objectives of the Labour Relations Act, 1995; or may have the effect of unfairly disadvantaging another party to the dispute. This amendment appears to be aimed at, among other things, labour consultants and the like who join employers' organisations simply to acquire rights (that they otherwise would not have) to represent employers at the CCMA, but the ambit of the rule goes wider than this and introduces an inquiry into the relative disadvantage to the other party to the dispute of allowing such representation. This may well give rise to litigation that tests the validity and boundaries of these restrictions.

Making applications relating to preliminary issues

Significant amendments have been made in relation to the filing of documents in applications in terms of Rule 31 (which relates to issues of condonation, joinder, rescission, postponement, jurisdiction and the like). Any party wishing to bring such an application is now required to bring that application 14 days prior to the date of a hearing. A notice of opposition and answering affidavits must then be served and filed within five days after receipt of the application and a replying affidavit must be served and filed within three days from the day on which any notice of opposition and answering affidavit is served on the applicant in an application.

Digital recording now mandatory for the CCMA

Rule 36 now specifically states that a record must be kept by way of digital recording and, if practically possible, legible notes must be kept, whereas previously a digital recording was not mandatory. This will serve to alleviate issues that arise in review proceedings where no recording is available for the purposes of filing a record relevant to the review of arbitration awards, and the parties have to try and reconstruct the record.

Expert witnesses

Rule 37A has been inserted to deal with expert witnesses. It requires a party who wishes to call an expert witness to give seven days' notice prior to the hearing to the CCMA and the other party, together with a summary of the evidence of the proposed witness, any document that will be relied on and the basis on which the witness is regarded as an expert. This is designed to enable the other party to consider the summary and minimise the need for a postponement in order to deal with expert evidence.

Costs in arbitration proceedings

An extensive new Rule 39 deals with costs orders in arbitration proceedings and stipulates factors to which a commissioner must have regard when making an order for costs.

In addition, the rule prescribes that commissioners may order costs in respect of reasonable disbursements incurred where one party is represented by a legal practitioner, and in relation to legal fees where both parties are represented by a legal practitioner. However, this is limited to R6 000 for the first day of the arbitration proceedings and R4 000 in respect of each additional day of an arbitration.

Certification of awards

Rule 40, dealing with the certification of arbitration awards, has also been amended. In terms of the amendment, any arbitration award that has been certified and which orders payment of an amount of money may be enforced by execution against property of an employer by the sheriff of the court in the magisterial district where the employer party resides or conducts business and, where the award orders the performance of an act, by way of contempt proceedings in the Labour Court. This removes the need for a warrant of execution to be issued out of the Labour Court or the High Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions