| 18. |
How to request arbitration |
| (1) |
A party may request the Council to arbitrate a dispute by delivering a duly completed LRA form 7.13 |
| (2) |
The requesting party must— |
| (a) |
sign the request in accordance with Rule 4; |
| (b) |
attach to the request written proof that the request was served on the other parties to the dispute in accordance with Rule 6; and |
| (c) |
if the request is served out of time, attach an application for condonation in accordance with Rule 9(3). |
| (3) |
The Council must accept, but may refuse to process a request until sub-rule (2) has been complied with. |
| (4) |
This Rule does not apply to con-arb proceedings held in terms of Section 191(SA) read together with rule 17. |
| 19. |
When must the parties file statements |
| (1) |
The Council or a commissioner may direct— |
| (a) |
the requesting party in an arbitration to deliver a statement of case and; |
| (b) |
the other parties to deliver an answering statement. |
| (2) |
A statement in terms of sub-rule (1) must— |
| (a) |
set out the material facts upon which the party relies and the legal issues that arise from the material facts; and |
| (b) |
be delivered within the time-period specified by the Councilor commissioner. |
| (3) |
The commissioner has a discretion to continue with the matter despite non-compliance with a directive of the Council or commissioner in terms of sub-rule (1). However, any non-compliance may be taken into account when considering costs at the conclusion of the arbitration hearing. |
| 20. |
When the parties must hold a pre-arbitration conference |
| (1) |
The parties to an arbitration must hold a pre-arbitration conference dealing with the matters referred to in sub-rule (3), if: |
| (a) |
both parties are represented by a trade union, employer's organisation, legal practitioner and/or candidate attorney. |
| (b) |
both parties agree to hold a pre-trial conference; or |
| (c) |
directed to do so by the Senior Commissioner in charge of a region or the presiding commissioner. |
| (2) |
A pre-trial conference convened in terms of sub-rule (1)(a) and (b) must be convened at least fourteen (14) days prior to the date of the scheduled arbitration. |
| (3) |
In a pre-arbitration conference, the parties must attempt to reach consensus on the following— |
| (a) |
any means by which the dispute may be settled; |
| (b) |
facts that are agreed between the parties; |
| (c) |
facts that are in dispute; |
| (d) |
the issues that the Council is required to decide; |
| (e) |
the precise relief claimed and if compensation is claimed, the amount of the compensation and how it is calculated; |
| (f) |
the sharing and exchange of relevant documents, and the preparation of a bundle of documents in chronological order with each page numbered; |
| (g) |
the manner in which documentary evidence is to be dealt with,including any agreement on the status of documents and whether documents, or parts of documents, will serve as evidence of what they appear to be; |
| (h) |
whether evidence on affidavit will be admitted with or without the right of any party to cross-examine the person who made the affidavit; |
| (i) |
which party must begin; |
| (j) |
the necessity for any on-the-spot inspection; |
| (k) |
securing the presence at the Council of any witness; |
| (I) |
the resolution of any preliminary points that are intended to be taken; |
| (m) |
the exchange of witness statements; |
| (o) |
any other means by which the proceedings may be shortened; |
| (p) |
an estimate of the time required for the hearing; |
| (q) |
the right of representation; and |
| (r) |
whether an interpreter is required and, if so, for how long and for which languages. |
| (4) |
Unless a dispute is settled, the parties must draw up and sign a minute setting out the facts on which the parties agree or disagree. |
| (5) |
A minute in terms of sub-rule (4) may also deal with any other matter listed in sub-rule (3). |
| (6) |
The referring party must ensure that a copy of the pre-arbitration conference minute is delivered to the appointed commissioner seven (7) days prior to the date scheduled for the arbitration. |
| (7) |
The commissioner may, after receiving a pre-arbitration minute— |
| (a) |
direct the parties to hold a further pre-arbitration conference; and / or |
| (b) |
issue any other directive to the parties concerning the conduct of the arbitration, including rescheduling the matter for hearing on another date. |
| (8) |
The commissioner has a discretion to continue with the matter despite non- compliance with the directive in terms of sub-rule (1), or the provisions of sub-rule (4), (5) and/or (6). However, any non-compliance may be taken into account when considering costs at the conclusion of the arbitration hearing. |
| 21. |
When must the Council notify parties of an arbitration |
The Council must notify the parties in writing of an arbitration hearing at least twenty-one (21) days prior to the scheduled date, unless the parties agree to a shorter period or reasonable circumstances require a shorter period. If a notification is sent by registered mail only an additional seven (7) days must be allowed.
| 22. |
How to determine whether a commissioner may arbitrate a dispute |
If during the arbitration proceedings it appears that a jurisdictional issue has not been determined, the commissioner must require the referring party to prove that the Council has jurisdiction to arbitrate the dispute.
| 23. |
How to postpone an arbitration |
| (1) |
An arbitration may be postponed— |
| (a) |
by written agreement between the parties; or |
| (b) |
by application to the Council and on notice to the other parties in terms of sub-rule (3). |
| (2) |
The Council must postpone an arbitration without the parties appearing if— |
| (a) |
all the parties to the dispute agree in writing to the postponement;and |
| (b) |
the written agreement for the postponement is received by the Council at least seven (7) days prior to the scheduled date of the arbitration. |
| (3) |
If the conditions of sub-rule (2) are not met, any party may apply in terms of Rule 31 to postpone an arbitration by delivering an application to the other parties to the dispute and filing a copy with the Council before the scheduled date of the arbitration. |
| (4) |
After considering the written application,the Council may— |
| (a) |
without convening a hearing, postpone the matter; or |
| (b) |
convene a hearing to determine whether to postpone the matter. |
Copyright Act, 1978
