A point in Limine is a process that addresses a technical legal point, which is raised prior to getting into the merits of the case and relates to matters of jurisdiction.
The commissioner appointed to conciliate the dispute may only conciliate the dispute and after that issue a certificate if the Commission has jurisdiction to conciliate.
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.
To avoid delays at the conciliation stage, several recent decisions of the Labour Court, particularly after 2010, have limited the list of jurisdictional points that may be considered at conciliation, this includes:
- A jurisdictional point can be taken at conciliation where the referral of the dispute to the CCMA was not in accordance with the rules,
For example, the LRA 7.11 referral form was not signed nor served.
- Where a bargaining council has jurisdiction over the parties to the dispute, the CCMA should decline jurisdiction at conciliation, in the absence of the circumstances contemplated in Section 147 of the Labour Relations Act 66 of 1995
Section 147(2) and (3) provides that if a dispute has been referred to the CCMA and the parties to the dispute are parties to a bargaining council or fall within the registered scope of a council, the CCMA may either refer the matter to the council having jurisdiction or appoint a commissioner to resolve the dispute.
- 3. The referring party must refer a dispute to the CCMA within 30 days after the dispute arose. When a dispute is referred after the 30 days a point in Limine may be raised. If the above time periods have lapsed, the referring party must apply for condonation- he/ she is required to make an application to the CCMA to condone the reason that he/she failed to refer the case timeously.
In Gold Fields Mining South Africa (Pty) Ltd (Kloof Mine) v CCMA & others the court added that the commissioner should not, at conciliation, hear jurisdictional points relating to:
- the issue of employment status, whether the applicant is an employee or independent contractor or whether the respondent is the employer;
- whether or not there was a dismissal; and
- the reason for the dismissal, for example, where an employee contends that she or he was dismissed due to misconduct in order to refer the dispute within the ambit of the CCMA, whereas the employer contends that the reason for the dismissal was participation in unprotected industrial action over which the Labour Court has jurisdiction.
Where it is not appropriate to take the point at conciliation, the litigant should participate in the conciliation proceedings, but reserve the right to raise the point at arbitration or in the Labour Court (depending on which forum is prescribed for the determination of the matter) at a later stage should the matter not be settled.
Article by: Lee-Anne Bowman
Dispute Resolution Official – Gauteng
VIDEO: Nagarsen Naicker, Dispute Resolution Official in Durban discuss what is an in limine hearing.