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 arbitrationnature 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)