CCMA RULES

 

PART EIGHT
GENERAL (ss 35-41)



35.   Condonation for failure to comply with the Rules and form

  1. The Commission or a commissioner may condone any failure to comply with any provision of these Rules, on good cause shown.
  2. In exercising its powers and performing its functions the Commission may act in such a manner as it deems expedient in the circumstances in order to achieve the objects of the Act. In doing so it shall have regard to substance rather than form, save where the Act provides otherwise.

36.   Recordings of Commission proceedings

  1. The Commission must keep a record of -

    1. all processes except conciliations, unless otherwise stated in these Rules;
    2. any arbitration award or ruling made by a Commissioner.

  2. The record must be kept by means of a digital recording and, if practically possible, also by legible notes.
  3. A party may request a copy of the record or a portion of a record kept in terms of sub-rule (2), on payment of the costs where applicable.

37.   How to have a subpoena issued

  1. Any party who requires the Commission or a commissioner to subpoena a person in terms of Section 142(1) of the Act, must file a completed LRA Form 7.16 together with a written motivation setting out why the evidence of the person to be subpoenaed is necessary.
  2. A party requesting the Commission to waive the requirement for the party to pay witness fees in terms of Section 142(7) (c) must set out the reasons for the request in writing at the time of requesting the Commission to issue a subpoena in respect of that witness. The Commission's decision must be made in writing and delivered when issuing the subpoena.
  3. An application in terms of sub-rule (1) must be filed with the Commission at least fourteen (14) days prior to the arbitration hearing, or as directed by the commissioner hearing the arbitration.
  4. The Commission may refuse to issue a subpoena if-

    1. the party does not establish why the evidence of the person is necessary;
    2. the party subpoenaed does not have seven (7) days in which to comply with the subpoena;
    3. not satisfied that the party requesting the subpoena has paid the prescribed witness fees and, reasonable travel costs and subsistence expenses of the person subpoenaed.

  5. A subpoena must be served on the witness subpoenaed -

    1. by the person who has requested the issuing of the subpoena or by the Sheriff, at least seven (7) days prior to the scheduled date of the arbitration; and
    2. accompanied by proof of payment of the prescribed witness fees for one day in accordance with the tariff of allowances published by notice in the Government Gazette in terms of Section 142(7) of the Act and the witnesses' reasonable travel costs and subsistence expenses.

  6. Sub-rules (4)(c) and (5)(b) do not apply if the Commission, in terms of Section 142(7)(c), has waived the requirement to pay witness fees.

37A.   Expert witnesses

A party intending to call an expert witness shall give seven (7) days, prior to the hearing, notice thereof to the Commission and the other party to the dispute together with a summary of the proposed evidence of such witness, any document on which the witness will rely during evidence and the basis on which the witness is regarded to be an expert to enable the other party to consider the summary and obviate the need for any postponement.

38.   Payment of witness fees

  1. A witness subpoenaed in any proceedings in the Commission must be paid a witness fee in accordance with the tariff of allowances published by notice in the Government Gazette in terms of Section 142(7) of the Act.
  2. The witness fee must be paid by -

    1. the party who requested the Commission to issue the subpoena; or
    2. the Commission, if the issuing of the subpoena was not requested by a party or if the Commission waives the requirement to pay witness fees in terms of Section 142(7)(c).

  3. Despite sub-rule (1), the commissioner may, in appropriate circumstances, order that a witness receives no fee or reasonable travel costs and subsistence expenses or only part of such fees or expenses.

39.   Order of costs in an arbitration

  1. In any arbitration proceedings, the commissioner may make an order for the payment of costs according to the requirements of law and fairness and when doing so should have regard to -

    1. the measure of success that the parties achieved;
    2. considerations of fairness that weigh in favour of or against granting a cost order;
    3. any with prejudice offers that were made with a view to settling the dispute;
    4. whether a party or the person who represented that party in the arbitration proceedings acted in a frivolous and vexatious manner-

      1. by proceeding with or defending the dispute in the arbitration proceedings, or
      2. in its conduct during the arbitration proceedings;

    5. the effect that a cost order may have on a continued employment relationship;
    6. any agreement concluded between the parties to the arbitration concerning the basis on which costs should be awarded;
    7. the importance of the issues raised during the arbitration to the parties as well as to the labour community at large;
    8. any other relevant factor.

  2. A commissioner may make an award of costs in favour of a party who is represented in arbitration by a person contemplated by rule 25(1)(a) in respect of reasonable disbursements actually incurred in the conduct of its case in the arbitration. A commissioner who makes an award in terms of this provision must specify clearly the items and amounts in respect of which costs are ordered.
  3. A commissioner may make an award of costs in respect of the legal fees of a party that is represented in an arbitration by a legal practitioner, only if the other parties to the arbitration were represented by a legal practitioner.
  4. An award of costs for costs in terms of sub-rule (3) must be in the amount of-

    1. in respect of the first day of an arbitration (including any arbitration concluded in a single hearing) - R6 000-00 (VAT inclusive);
    2. in respect of each additional day of an arbitration - R4 000-00 (VAT inclusive).

  5. The Director may appoint taxing officers to determine any dispute that may arise from any award of costs in terms of this Rule.
  6. Any dispute concerning an award of costs must be submitted on LRA Form 7.17 to which any relevant documentation must be annexed.

40.   Certification of arbitration awards

  1. An application to have an arbitration award certified must be made on -

    1. LRA Form 7.18 in respect of an award by a commissioner;
    2. LRA Form 7.18A in respect of an award in arbitration conducted under the auspices of a bargaining council.

  2. Any arbitration award that has been certified in terms of Section 143 of the Act that -

    1. orders the payment of an amount of money may be enforced by execution against the property of the employer party by the Sheriff of the court in the Magisterial district where the employer party resides, or conducts business;
    2. orders the performance of an act other than the payment of money may be enforced by way of contempt proceedings instituted in the Labour Court.

  3. For the purposes of sub-rule (2), an arbitration award includes an award of costs in terms of Section 138(10), a taxed bill of costs in respect of an award of costs and an arbitration fee charged in terms of Section 140(2).

41.   What words mean in these Rules

Any expression in these Rules that is defined in the Labour Relations Act, 1995 (Act 66 of 1995), has the same meaning as in that Act and -

'Act' means the Labour Relations Act, 1995 (Act 66 of 1995), and includes any regulation made in terms of that Act;

'Association' means any unincorporated body of persons;

'Commission' means the Commission for Conciliation, Mediation and Arbitration established by Section 112 of the Act;

'Commissioner' means a Commissioner appointed in terms of Section 117 of the Act;

'Con-arb' means proceedings held in terms of Section 191(5A);

'Deliver' means serve on other parties and file with the Commission;

'Director' means the Director of the Commission appointed in terms of Section 118 of the Act, and includes any person delegated by the Director to perform any of the functions of the Director;

'File' means to lodge with the Commission in terms of Rule 7;

'Labour Court' means the Labour Court established by Section 151 of the Act and includes any judge of the Labour Court;

'Party' means any party to proceedings before the Commission;

'Regional Registrar' means the regional registrar of the Commission appointed in terms of Section 120 of the Act in each of the regions, or any other person authorised to act in the place of the regional registrar;

'Public holiday' means a public holiday referred to in Section 1 of the Public Holidays Act, 1994 (Act 36 of 1994);

'Rules' means these Rules and includes any footnote to a rule;

'Senior Commissioner' means a senior commissioner appointed in terms of Section 117 of the Act and includes any person delegated by the senior commissioner to perform any of the functions of the senior commissioner;

'Serve' means to serve in accordance with Rule 5 and 'service' has a corresponding meaning;

'Taxing officer' means any employee of the Commission appointed by the Director in terms of Rule 39.