What do arbitrators expect from practitioners? Help us do the right thing

technicalities Block or redirect? – City of JhbMM v SAMWU 2008 – LR7.11 Peremptory or explanatory? Jurisdiction – Settlement – Mooi LC 2009 Dispute within scope of LRA – Pte arb Contract – contracting out of LRA rights? – SACTWU v Dakbor Clothing 2007 Coll.agm’t binding

Efficiency - CCMA Consolidate/duplicate – ULP – suspension followed by dismissal Separate or consolidate Raise jurisdictional challenge early – Internal appeal – exhaust domestic remedies? – Encourage ability to cure defect Who signs LR 7.11 Condonation

Efficiency Postponements – Not civil litigation – CCMA directs scheduling – Don’t assume application granted Must attend scheduled hearing to apply – Martin v CCMA 2008 Tender costs – no provision in rules (but see PSCBC) Rule 23 if agreement + 7 days prior to arb postpone – BUT op. impact on CCMA

Use CCMA Conciliation – Don’t follow Premier Gauteng / Ramabulana 2008 Appear w mandate: ± payment Build credibility w comm. Jurisdictional rulings CCMA R14 – EOH Bantu 2010 Cele ‘ruling’ in conciliation NOT determinative – Goldfields 2009 Van Niekerk Preferable to deal with disputes of fact in arb – Avgold Target 2010 Basson If not dealt with in con must deal with in arb

Jurisdictional rulings Rulings that must to be made prior to conciliation Party compliance - time limits; Ch III Org Rts (premature, Jurisdiction CCMA/BC/LCt Does dispute fall within scope of LRA or eg PFA/DoL Despite Rule 14 - don’t initiate review to overturn certificates – determination of factual disputes e.g. was there a dismissal;

Jurisdictional rulings cont’d – Mixed law & fact e’ee/ind.contr. Reason for dismissal – strike Goldfields Mining / CCMA – EOH Bantu ensure CCMA comm records unresolved jurisdictional questions on LR7.12 certificate

Condonation / Rescission If condonation required – apply ASAP – condonation – deal with whole period Oral hearings: – Lay people? Factors to consider not well dealt with – Misunderstanding of prejudice – respondent’s capacity to answer not adverse impact on applicant

Rescission Apply ASAP w good cause If aware of dispute prior to arb – track w CCMA – Failure to attend – Merits If rescission unlikely? – Settle or litigate?

Applications Legal rep – Not dealt with in Rules: Mention in conciliation Try to secure agreement Must be prepared to run if refused Lay a proper basis for: Complexity not impact Netherburn LAC Musi

Statutory arbitration nature of process mixed – statutory equivocation: – Investigative – managed/driven by comm. (s 138(1) - Naraindath (Wallis – Small Claims Court model) – adversarial party-driven – s 138(2) Quid pro quo for lawyer exclusion? Parties empowered to present personally / directly Correlation between adversarialism & lawyer participation?

investigative Commissioner’s overall duty under s 138(1) – Role of rep? Help arbitrator to further s 138(1) – Identify issues – Locate legal framework – Identify test to apply – Identify relevant factual disputes Failure to do so? E C Agri Co-op v Du Plessis 2000

Role of rep continued Assist commissioner – Don’t Patronise or intimidate – explain courteously if you think comm misunderstands issue/ test/ is unaware of relevant precedent e.g. evidentiary burden and overall legal onus of proof

Relation between domestic hearings and arbitration If domestic hearing informal (Avril Elizabeth) no record CCMA full rehearing of all evidence If full hearing & record what value? – Assist comm identify if all relevant issues fully canvassed in record. If so, no need to rehear what is properly recorded. If credibility in issue recall witnesses for XX only.

Documents Try to have informal pre-arb – CCMA seldom holds Try get agreed bundle; if not inform other side what docs you intend to use Docs must assist arbitrator – Chronology, witness statements, relevant documents (w translation) – Mark documents – Align your doc. presentation w case strategy – Help arb make a fair/legally compliant award Case law – copy & mark Don’t rely on old unreported judgments

Post hearing submissions In simple purely factual disputes be ready to argue Post hearing written submissions – Help arbitrator

Appointment of Commissioner Use partial choice available – S 136(5)