Rule 20 of the Rules for the Conduct of Proceedings before the CCMA places an obligation on parties to hold a pre-arbitration conference when they are explicitly directed to do so by either the Convening Senior Commissioner, or the Senior Commissioner in charge of a region, or the presiding Commissioner.

Upon being directed to hold a pre-arbitration conference, the Applicant and the Respondent must attempt to reach consensus on the following aspects: [as per Rule 20(2)(a) to (r)]:

(1) Any means by which the dispute may be settled;

(2) Facts that are agreed between the parties;

(3) Facts that are in dispute;

(4) The issues that the Commission is required to decide;

(5) The precise relief claimed and if compensation is claimed, the amount of the compensation and how it is calculated;

(6) The sharing and exchange of relevant documents, and the preparation of a bundle of documents in chronological order with each page numbered;

(7) 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;

(8) Whether evidence on affidavit will be admitted with or without the right of any party to cross-examine the person who made the affidavit;

(9) Which party must begin;

(10) The necessity for any on-the-spot inspection;

(11) Securing the presence at the Commission of any witness;

(12) The resolution of any preliminary points that are intended to be taken;

(13) The exchange of witness statements;

(14) Expert evidence;

(15) Any other means by which the proceedings may be shortened;

(16) An estimate of the time required for the hearing;

(17) The right of representation; and

(18) Whether an interpreter is required and, if so, for how long and for which languages.

Upon agreeing and disagreeing to the certain aspects as mentioned above, parties should minute the conference held in writing, indicate which aspects were agreed or disagreed upon, and ensure that the information in the minute is true and correct by allowing both parties to sign the documentation and/or minute in full.

Representatives of Applicants and Respondents should allow their respective clients the opportunity to first peruse the minutes of the conference before fully agreeing to the contents. This is to ensure that the client agrees to certain aspects which are either disputed or conceded in the minutes which have been structured in writing. This is of vital importance as parties are bound to what has been agreed or disagreed to in the pre-arb minutes.

A party will have difficulty in convincing a Commissioner mid-arbitration that an issue which has been agreed upon in writing, is suddenly being disputed. It is therefore crucial that parties have consulted with their respective clients prior to attending the pre-arbitration conference and if necessary, allow the client the opportunity to attend the conference in person if he or she is unsure of what the parties will discuss.

A pre-arbitration conference does however serve as a vital ‘underrated’ advantage for both Applicants and Respondents. It serves as a preparatory advantage to parties as they are not met with countless surprises on the day of the arbitration. A pre-arbitration conference has the potential, in certain instances, to shorten full-day arbitrations to half-day arbitrations as the parties are fully aware of what could be expected from one another. It further allows parties the opportunity to dispute or concede to documentation that will be used as evidence.

For example: Mr. X is dismissed from ABC Company for unauthorised absenteeism. The chairperson for Mr. X’s disciplinary hearing was Mr. Wang. Mr. X refers his dismissal to the CCMA, claiming that his dismissal was both procedurally and substantially unfair. Mr. X is represented by an Attorney. The parties are directed to hold a pre-arbitration conference.

At the pre-arbitration conference, and after consulting with his client, Mr. X’s Attorney informs the representative of ABC Company that Mr. X was unsure of his referral and concedes that Mr. X will only be contesting the substantive fairness of his dismissal. ABC Company is relieved by this fact as Mr. Wang, chairperson of the hearing, has relocated to Namibia. ABC Company may now avoid spending unnecessary costs in securing Mr. Wang’s attendance at the CCMA on the date of the arbitration.

Are parties allowed to arrange pre-arbitration conferences without being expressly directed to do so?

Nothing precludes both Applicants nor Respondents in attempting to arrange pre-arbitration conferences without notification from the CCMA. In fact, Rule 20(7) of the Rules for the Conduct of Proceedings before the CCMA allows parties to mutually agree to a pre-arbitration conference, without having to be instructed and/or directed to do so by the CCMA. However, unrepresented parties should approach such instances with caution as:

(1) Lay and unrepresented parties are not always aware of what they are agreeing to or disputing, prior to arbitration and;

(2) Lay and unrepresented parties will not understand why the opposing Applicant or Respondent is approaching them privately, without the auspices of the CCMA.

It is therefore advised that pre-arbitration conferences of this nature should only be attempted where both employer and employee are represented by seasoned representatives.


Article by: Noel Strating

Dispute Resolution Official – Bloemfontein