Jurisdictional Rulings: To be raised at conciliation or Arbitration?

Introduction

Jurisdictional ruling refer to a ruling which determines whether the CCMA has the power or authority to deal with a particular matter. Sometimes these rulings are referred to as in limine proceedings which means a preliminary determination which has the effect of disposing the matter or giving the CCMA or body the authority to determine the matter.

There are currently conflicting decisions on the question whether such rulings can be made at the level of conciliations or only at the arbitration level. Amongst such rulings are condonation applications:

Section 115(2) c A lists as one of the functions of the Commission as to make rules to regulate, subject to Schedule 3, the proceedings at its meetings and at the meetings of the meetings of any committee of the Commission.

Regulating the practice and procedure:

Indeed the Commission has promulgated rules for the conduct of proceedings before CCMA. The relevant rule in this regard is rule 14 and reads thus: “If it appears during the conciliation proceedings that a jurisdictional issue has not been determined, the Commissioner must require the referring party to prove that the Commission has the jurisdiction to conciliate the dispute through conciliation.”

From the preceding paragraph it is clear that the legislature has empowered the Commission to make rules for its processes. One of the rules as mentioned above is the need to determine jurisdictional issues at the conciliation level.

In the case of Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others (case number JR2006/08), the court acknowledged the powers of the CCMA to make rules as indicated above. However, they concluded that despite the existence of rule 14, (which empowers the Commissioner to make rulings at conciliation level), there are jurisdictional rulings which are suited for conciliation and those that are not.

The Court made a distinction between jurisdictional rulings which establishes threshold and those that are closely related to the merits of the dispute. In the first category the court listed, condonation for late filling of the referral, whether bargaining council has jurisdiction over the parties, whether the dispute is the one contemplated by the Act. These, the court said are suited to be raised at the commencement of the conciliation. In the second category the court included, the determination of whether the applicant is an employee, whether there is a dismissal or not. The court said that despite the wording of Rule 14 these jurisdictional points are better determined after the hearing of evidence at the arbitration phase. It is clear from the case that there is acknowledgement or recognition of the power of the CCMA to make rules for its processes.

However, in the recent case of EOH Abantu (Pty) Ltd v CCMA and Others (case number JR2911/07) the court had a different view. The court decided that a ruling on jurisdiction by a conciliating commissioner as contemplated by rule 14 is in the form of an advisory arbitration award provided for in section 135(3)(c) of the Act and therefore has no binding legal effect.

I do not understand how the court came to such conclusion. The court seems to have emphasized the repealed rule 6(1) which provided as follows: “The commissioner appointed to conciliate the dispute may only conciliate the dispute and thereafter issue a certificate in terms of section 135(5) of the Act if the Commission has jurisdiction to conciliate the dispute.”

Only rule 6(2) was retained when the rules were reviewed. The provision of this rule is now contained in rule 14 and it provides as follows: “If at any stage during the conciliation proceedings it becomes apparent that there is a jurisdictional issue which has not been determined, the commissioner must require the referring party to prove that the commission has the necessary jurisdiction to resolve the dispute through conciliation.” The court then said that the determination of the jurisdiction in terms of rule 14 appears to have narrowed for conciliation purposes to the referring party “ought to prove that the commissioner has jurisdiction to conciliate the dispute.”

However, from a purposive interpretation of the rule 14, it is clear from rule 14 that it is expected that jurisdictional rulings be done at the commencement of the conciliation. That is clear from the words “which has not been determined”. Secondly it appears that the court expects the applicant to merely make a statement that the commission has jurisdiction to hear the matter and nothing less and nothing more. This is not correct. The rule places the onus on the applicant to prove on a balance of probabilities that the commission has jurisdiction, where upon the commissioner will apply his or her mind to both versions of the two parties and determine whether the applicant has succeeded to do so on a balance of probabilities. That is determining a jurisdictional issue.

The exclusion or omission of the former rule 6(1) as indicated above appears to me to have resulted from avoidance of repetition and the drafters may have thought “the matter speaks for itself”.

Reference to section 135(3) of the Act which provides the commissioner with tools of conciliation viz mediation, fact finding exercise and making a recommendation which may be in the form of an advisory award, seems odd. This is because the advisory award would be a result of conciliation where in the commissioner recommends a particular cause of action to resolve the dispute and not whether the commissioner has jurisdiction or not. So the advisory award as envisaged cannot and should not be equated with the jurisdictional ruling envisaged by rule 14 of the Rules for the CCMA.

A blanket ban on determination of all jurisdictional rulings at conciliation level is not borne by facts nor by law and is therefore incorrect.

A better view is the one that distinguishes between threshold jurisdictional rulings and those jurisdictional rulings which closely related to the merits of the dispute.

It is indeed acceptable that the former be addressed at the conciliation level and the latter at the arbitration level.

It is very clear that the legislature has given the CCMA power to make the rules including the relevant rule herein and such rules need to be respected especially because they are born of practice and should not be nullified unnecessarily.

Mr Mmakgare Shai worked for many years for the Department of Health and Welfare as a social worker. He was admitted as an attorney in 1996 and practised on own account until 1999, when he joined the CCMA as a full-time Commissioner. He became the Convening Senior Commissioner for the Limpopo Province in 2000 to date. He holds the following qualifications: B.A. SW (Unin), B.A. SW (Hons)(Unin), LLB (Unisa), LLM (UJ). He formed part of a South African Delegation to the 87th International Labour Conference in 2008. He has attended an ILO, International Labour Standards For Judges, Lawyers and Legal Educators on the use of International labour Law by the Domestic Court or Tribunals from 31 August 2009 – 12 September 2009 in Turin/Italy.